G.R. No.

L-64279 April 30, 1984

ANSELMO L. PESIGAN and MARCELINO L. PESIGAN, petitioners,
vs.
JUDGE DOMINGO MEDINA ANGELES, Regional Trial Court, Caloocan City Branch 129, acting for REGIONAL
TRIAL COURT of Camarines Norte, now presided over by JUDGE NICANOR ORIO, Daet Branch 40; DRA. BELLA
S. MIRANDA, ARNULFO V. ZENAROSA, ET AL., respondents.
Quiazon, De Guzman Makalintal and Barot for petitioners.
The Solicitor General for respondents.
AQUINO, J.:+.wph!1
At issue in this case is the enforceability, before publication in the Official Gazette of June 14, 1982, of Presidential
Executive Order No. 626-A dated October 25, 1980, providing for the confiscation and forfeiture by the government of
carabaos transported from one province to another.
Anselmo L. Pesigan and Marcelo L. Pesigan, carabao dealers, transported in an Isuzu ten-wheeler truck in the evening of
April 2, 1982 twenty-six carabaos and a calf from Sipocot, Camarines Sur with Padre Garcia, Batangas, as the
destination.
They were provided with (1) a health certificate from the provincial veterinarian of Camarines Sur, issued under the
Revised Administrative Code and Presidential Decree No. 533, the Anti-Cattle Rustling Law of 1974; (2) a permit to
transport large cattle issued under the authority of the provincial commander; and (3) three certificates of inspection, one
from the Constabulary command attesting that the carabaos were not included in the list of lost, stolen and questionable
animals; one from the LIvestock inspector, Bureau of Animal Industry of Libmanan, Camarines Sur and one from the
mayor of Sipocot.
In spite of the permit to transport and the said four certificates, the carabaos, while passing at Basud, Camarines Norte,
were confiscated by Lieutenant Arnulfo V. Zenarosa, the town's police station commander, and by Doctor Bella S.
Miranda, provincial veterinarian. The confiscation was basis on the aforementioned Executive Order No. 626-A which
provides "that henceforth, no carabao, regardless of age, sex, physical condition or purpose and no carabeef shall be
transported from one province to another. The carabaos or carabeef transported in violation of this Executive Order as
amended shall be subject to confiscation and forfeiture by the government to be distributed ... to deserving farmers
through dispersal as the Director of Animal Industry may see fit, in the case of carabaos" (78 OG 3144).
Doctor Miranda distributed the carabaos among twenty-five farmers of Basud, and to a farmer from the Vinzons municipal
nursery (Annex 1).
The Pesigans filed against Zenarosa and Doctor Miranda an action for replevin for the recovery of the carabaos allegedly
valued at P70,000 and damages of P92,000. The replevin order could not be executed by the sheriff. In his order of April
25, 1983 Judge Domingo Medina Angeles, who heard the case at Daet and who was later transferred to Caloocan City,
dismissed the case for lack of cause of action.
The Pesigans appealed to this Court under Rule 45 of the Rules of Court and section 25 of the Interim Rules and
pursuant to Republic Act No. 5440, a 1968 law which superseded Rule 42 of the Rules of Court.
We hold that the said executive order should not be enforced against the Pesigans on April 2, 1982 because, as already
noted, it is a penal regulation published more than two months later in the Official Gazette dated June 14, 1982. It became
effective only fifteen days thereafter as provided in article 2 of the Civil Code and section 11 of the Revised Administrative
Code.
The word "laws" in article 2 (article 1 of the old Civil Code) includes circulars and regulations which prescribe penalties.
Publication is necessary to apprise the public of the contents of the regulations and make the said penalties binding on
the persons affected thereby. (People vs. Que Po Lay, 94 Phil. 640; Lim Hoa Ting vs. Central Bank of the Phils., 104 Phil.
573; Balbuna vs. Secretary of Education, 110 Phil. 150.)
The Spanish Supreme Court ruled that "bajo la denominacion generica de leyes, se comprenden tambien los
reglamentos, Reales decretos, Instrucciones, Circulares y Reales ordenes dictadas de conformidad con las mismas por el
Gobierno en uso de su potestad (1 Manresa, Codigo Civil, 7th Ed., p. 146.)
Thus, in the Que Po Lay case, a person, convicted by the trial court of having violated Central Bank Circular No. 20 and
sentenced to six months' imprisonment and to pay a fine of P1,000, was acquitted by this Court because the circular was
published in the Official Gazette three months after his conviction. He was not bound by the circular.
That ruling applies to a violation of Executive Order No. 626-A because its confiscation and forfeiture provision or sanction
makes it a penal statute. Justice and fairness dictate that the public must be informed of that provision by means of
publication in the Gazette before violators of the executive order can be bound thereby.
The cases of Police Commission vs. Bello, L-29960, January 30, 1971, 37 SCRA 230 and Philippine Blooming Mills vs.
Social Security System, 124 Phil. 499, cited by the respondents, do not involve the enforcement of any penal regulation.
Commonwealth Act No. 638 requires that all Presidential executive orders having general applicability should be
published in the Official Gazette. It provides that "every order or document which shag prescribe a penalty shall be
deemed to have general applicability and legal effect."
Indeed, the practice has always been to publish executive orders in the Gazette. Section 551 of the Revised
Administrative Code provides that even bureau "regulations and orders shall become effective only when approved by the

Department Head and published in the Official Gazette or otherwise publicly promulgated". (See Commissioner of Civil
Service vs. Cruz, 122 Phil. 1015.)
In the instant case, the livestock inspector and the provincial veterinarian of Camarines Norte and the head of the Public
Affairs Office of the Ministry of Agriculture were unaware of Executive Order No. 626-A. The Pesigans could not have
been expected to be cognizant of such an executive order.
It results that they have a cause of action for the recovery of the carabaos. The summary confiscation was not in order.
The recipients of the carabaos should return them to the Pesigans. However, they cannot transport the carabaos to
Batangas because they are now bound by the said executive order. Neither can they recover damages. Doctor Miranda
and Zenarosa acted in good faith in ordering the forfeiture and dispersal of the carabaos.
WHEREFORE, the trial court's order of dismissal and the confiscation and dispersal of the carabaos are reversed and set
aside. Respondents Miranda and Zenarosa are ordered to restore the carabaos, with the requisite documents, to the
petitioners, who as owners are entitled to possess the same, with the right to dispose of them in Basud or Sipocot,
Camarines Sur. No costs.
SO ORDERED.1wph1.t
Makasiar, (Chairman), Concepcion, Jr., Guerrero, and Escolin, JJ., concur.
De Castro, J., took no part.
Separate Opinions
ABAD SANTOS, J., concurring:
The Pesigans are entitled to the return of their carabaos or the value of each carabao which is not returned for any
reason. The Pesigans are also entitled to a reasonable rental for each carabao from the twenty six farmers who used
them. The farmers should not enrich themselves at the expense of the Pesigans.
Pesigan v. Angeles Digest
GR L-64279
Civil law, when Laws take effect
Facts: Petitioners Anselmo and Marcelo Pesigan, carabao dealers transported on April 2. 1982, twenty-six (26) carabaos
& a calf from Camarines Norte with Batangas as its destination. They were provided with health certificates from the
provincial veterinarian and three (3) other permits attesting that the cattle was not part of lose, stolen or questionable
animals.
Despite this, the said cattle was confiscated by respondents Zenarosa and Miranda, who were respectively the police
station commander and provincial veterianarian of Basud, Camarines Norte. The confiscation was on the basis of said EO
626-A which was dated October 25, 1980 but was published in theOfficial Gazette on June 14, 1982.
Executive Order 626-A provides, "that henceforth, no carabao, regardless of age, sex, physical condition or purpose and
no carabeef shall be transported from one province to another. The carabaos or carabeef transported in violation of this
Executive Order as amended shall be subject to confiscation and forfeiture by the government to be distributed ... to
deserving farmers through dispersal as the Director of Animal Industry may see fit, in the case of carabaos".
The Pesigans filed an action for replevin against herein respondents for the recovery of the subject cattle but this could
not be executed by the sheriff. Subsequently, the judge dismissed the case for lack of cause of action. Hence, the
petitioners filed an appeal to the Supreme Court under Rule 45 of the Rules of Court.
Issue: Whether or not Executive Order No. 626-A dated October 25, 1980, providing for the confiscation and forfeiture by
the government of cattle transported from one province to another, can be enforced even before its actual publication in
the Official Gazette of June 14, 1982
HELD: NO
The Supreme Court held that EO 626-A is a penal regulation published more than two months after the confiscation of the
cattle or in June 14, 1982. Hence, it became effective only fifteen days thereafter as provided in Article 2 of the Civil Code.
It should therefore not be enforced against the petitioners.

Publication is necessary to apprise the public of the contents of the regulations and make the said penalties binding on
the persons affected thereby. (People v Que Po). Justice and fairness dictate that the public must be informed of that
provision by means of publication in the Gazette before violators of the executive order can be bound thereby.
Note: The word "laws" in Article 2 of the NCC also includes circulars and regulations which prescribe penalties.
Tanada vs Tuvera (136 SCRA 27)
TITLE: Tanada v Tuvera
CITATION: L-63915, April 24, 1985| 136 SCRA 27
FACTS:
Petitioners seek a writ of mandamus in compelling respondent public officials to publish and/ or cause the publication in
the Official Gazette of various presidential decrees, letter of instructions, general orders, proclamations, executive orders,
letter of implementation and administrative orders.
The general rule in seeking writ of mandamus is that it 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.
The legal capacity of a private citizen was recognized by court to make the said petition for the reason that the right
sought to be enforced by petitioners herein is a public right recognized by no less than the fundamental law of the land.
ISSUE: Whether publication in the Official Gazette is still required considering the clause in Article 2 unless otherwise
provided.
HELD:
Unless it is otherwise provided refers to the date of effectivity and not with the publication requirement which cannot be
omitted as public needs to be notified for the law to become effective. The necessity for the publication in the Official
Gazette of all unpublished presidential issuances which are of general application, was affirmed by the court on April 24,
1985. This is necessary to provide the general public adequate notice of the various laws which regulate actions and
conduct as citizens. Without this, there would be no basis for Art 3 of the Civil Code Ignorance of the law excuses no one
from compliance therewith.

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.
TAADA VS. TUVERA
136 SCRA 27 (April 24, 1985)
FACTS:
Invoking the right of the people to be informed on matters of public concern as well as the principle that laws to be valid
and enforceable must be published in the Official Gazette, petitioners filed for writ of mandamus to compel respondent
public officials to publish and/or cause to publish various presidential decrees, letters of instructions, general orders,
proclamations, executive orders, letters of implementations and administrative orders.
The Solicitor General, representing the respondents, moved for the dismissal of the case, contending that petitioners have
no legal personality to bring the instant petition.
ISSUE:

Whether or not publication in the Official Gazette is required before any law or statute becomes valid and enforceable.
HELD:
Art. 2 of the Civil Code does not preclude the requirement of publication in the Official Gazette, even if the law itself
provides for the date of its effectivity. The clear object of this 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 ignoratia legis nominem excusat. It would be the height of injustive to punish
or otherwise burden a citizen for the transgression of a law which he had no notice whatsoever, not even a constructive
one.
The very first clause of Section 1 of CA 638 reads: there shall be published in the Official Gazette. The word shall
therein imposes upon respondent officials an imperative duty. That duty must be enforced if the constitutional right of the
people to be informed on matter of public concern is to be given substance and validity.
The publication of presidential issuances of 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.
The Court declared that presidential issuances of general application which have not been published have no force and
effect.
TAADA VS. TUVERA
146 SCRA 446 (December 29, 1986)
FACTS:
This is a motion for reconsideration of the decision promulgated on April 24, 1985. Respondent argued that while
publication was necessary as a rule, it was not so when it was otherwise as when the decrees themselves declared that
they were to become effective immediately upon their approval.
ISSUES:
Whether or not a distinction be made between laws of general applicability and laws which are not as to their publication;
Whether or not a publication shall be made in publications of general circulation.
HELD:
The clause unless it is otherwise provided refers to the date of effectivity and not to the requirement of publication itself,
which cannot in any event be omitted. This clause does not mean that the legislature may make the law effective
immediately upon approval, or in any other date, without its previous publication.
Laws should refer to all laws and not only to those of general application, for strictly speaking, all laws relate to the
people in general albeit there are some that do not apply to them directly. A law without any bearing on the public would
be invalid as an intrusion of privacy or as class legislation or as an ultra vires act of the legislature. To be valid, the law
must invariably affect the public interest eve if it might be directly applicable only to one individual, or some of the people
only, and not to the public as a whole.
All statutes, including those of local application and private laws, shall be published as a condition for their effectivity,
which shall begin 15 days after publication unless a different effectivity date is fixed by the legislature.
Publication must be in full or it is no publication at all, since its purpose is to inform the public of the content of the law.
Article 2 of the Civil Code provides that publication of laws must be made in the Official Gazette, and not elsewhere, as a
requirement for their effectivity. The Supreme Court is not called upon to rule upon the wisdom of a law or to repeal or
modify it if it finds it impractical.
The publication must be made forthwith, or at least as soon as possible.

J. Cruz:
Laws must come out in the open in the clear light of the sun instead of skulking in the shadows with their dark, deep
secrets. Mysterious pronouncements and rumored rules cannot be recognized as binding unless their existence and
contents are confirmed by a valid publication intended to make full disclosure and give proper notice to the people. The
furtive law is like a scabbarded saber that cannot faint, parry or cut unless the naked blade is drawn.
Tanada vs. Tuvera, 136 SCRA 27 (1985)
FACTS: Invoking the peoples right to be informed on matters of public concern, a right recognized in Section 6, Article IV
of the 1973 constitution, 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. The respondents would have this
case dismissed on the ground that petitioners have no legal personality to bring this petition. Petitioners maintain that
since the subject of the petition concerns a public right and its object is to compel public duty, they need not show any
specific interest. Respondents further contend that publication in the OG is not a sine qua non requirement for the
effectivity of laws where the laws themselves provide for their own effectivity dates.

ISSUE: Whether or not publication in the Official Gazatte is an indispensable requirement for the effectivity of the PDs,
LOIs, general orders, EOs, etc. where the laws themselves provide for
their own effectivity dates.
RULING: Yes. It is the peoples right to be informed on matters of public concern and corollarily access to official records,
and to documents and papers pertaining to official acts, transactions,or decisions, shall be afforded the citizens subject to
such limitation as may be provided by law (Sec. 6 Art. IV, 1973 Constitution). Laws, to be valid and enforceable, must be
published in the OG or otherwise effectively promulgated. The fact that a PD or LOI states its date of effectivity does not
preclude their publication in the OG as they constitute important legislative acts. The publication of presidential issuances
of public nature or of general applicability is a requirement of due process. Before a person may be bound by law, he
must first be officially informed of its contents.
Important Point: It illustrates how decrees and issuances issued by one manMarcosare in fact laws of general
application and provide for penalties. The constitution afforded Marcos both executive and legislative powers. The
generality of law (Civil Code, Art. 14) will never work without constructive notice. The ruling of this case provides the
publication constitutes the necessary constructive notice and is thus the cure for ignorance as an excuse. Ignorance will
not even mitigate the crime.
TANADA V. TUVERA [136 S 27] F: Invoking the people's right to be informed on matters of public concern, a right
recognized inthe Constitution, as well as the principle that laws to be valid and enforceable must bepublished in the OG or
otherwise effectively promulgated, petitioners seek a writ of mandamusto compel respondent public officials to publish,
and/or cause the publication in the OG of various PDs, LOIs, general orders, proclamations, EOs, letters
of implementation andadministrative orders. Respondents contend, among others that publication in the OG is not asine
qua non requirement for the effectivity of laws where the laws themselves provide for theirown effectivity dates. It is
thus submitted that since the presidential issuances in questioncontain special provisions as to the date they are to take
effect, publication in the OG isindispensable for their effectivity. The point stressed is anchored on Art. 2 of NCC.HELD:
The interpretation given by respondent is in accord w/ this Court's construction of saidarticle. In a long line of decisions,
this Court has ruled that publication in the OG is necessary inthose cases where the legislation itself does not provide for
its effectivity date-- for then thedate of publication is material for determining its date of effectivity, w/c is the 15th
dayfollowing its publication-- but not when the law itself provides for the date when it goes intoeffect. Respondent's
argument, however, is logically correct only insofar as it equates theeffectivity of laws w/ the fact of publication.
Considered in the light of other statutes applicableto the issue at hand, the conclusion is easily reached that said Art. 2
does not preclude therequirement of publication in the OG, even if the law itself provides for the date of itseffectivity. The
publication of all presidential issuances "of a public nature" or "of generalapplicability" is mandated by law. The clear
object of the law is to give the general publicadequate notice of the various laws w/c are to regulate their actions and

conduct as citizens.W/o 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 burdena citizen for the transgression of a law
of w/c he had no notice whatsoever, not even aconstructive one. It is needless to say that the publication of presidential
issuances "of a publicnature" 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 itscontents
DE ROY VS. COURT OF APPEALS, 157 SCRA 757FACTS:
This is a case of certiorari seeking to declare null and void the resolution denying petitioners' motion for extension of time
to file a motion for reconsideration and directed entry of judgment since the decision insaid case had become final; and
the resolution denying the petitioners' motion for reconsideration for having been filed out of time. T
he CA applied the rule laid down in
Habaluyas Enterprises,Inc. v. Japzon
, [G.R. No. 70895, August 5, 1985,138 SCRA 461, that the 15-dayperiod for appealing or for filing a Motion for Reconsideration
cannot be extendedPetitioners contend that the rule enunciated in the above case should not be madeto apply to
them owing to the non-publication of the HABALUYAS decision in theOfficial Gazette as of the time the subject decision of the CA
was promulgated.
ISSUE:
Is the petitioner's contention meritorious?
HELD:
There is no law requiring the publication of Supreme Court decisions in the OfficialGazette 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 Courtdecisions (G. R. s) and in such publications as the Supreme Court
ReportsAnnotated (SCRA) and law journals
G.R. No. 80718 January 29, 1988FELIZA P. DE ROY and VIRGILIO RAMOS,
petitioners, vs.
COURT OF APPEALS and LUIS BERNAL, SR., GLENIA BERNAL, LUISBERNAL, JR., HEIRS OF MARISSA
BERNAL, namely, GLICERIA DELA CRUZ BERNAL and LUIS BERNAL, SR.,
respondents.
R E S O L U T I O NCORTES,
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 promulgatedon 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, wouldstill 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 tailoringshop occupied by the family of private respondents, resulting in injuries to
private respondents and the death of Marissa Bernal, adaughter. Private respondents had been warned by petitioners to
vacate their shop in view of its proximity to the weakened wall butthe former failed to do so. On the basis of the foregoing
facts, the Regional Trial Court. First Judicial Region, Branch XXXVIII, presidedby the Hon. Antonio M. Belen, rendered
judgment finding petitioners guilty of gross negligence and awarding damages to privaterespondents. On appeal, the
decision of the trial court was affirmed in toto by the Court of Appeals in a decision promulgated onAugust 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
eventuallydenied by the appellate court in the Resolution of September 30, 1987. Petitioners
filed their motion for reconsideration onSeptember 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
extensionof time to file a motion for reconsideration, directed entry of judgment and denied their motion for
reconsideration. It correctlyapplied 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 forreconsideration, 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 timeto file a motion for reconsideration may be filed with the Metropolitan or

Municipal Trial Courts, the Regional Trial Courts, and theIntermediate 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 SCRA643], 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 saidrule, 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 Resolutionin the
clarificatory Habaluyas case, or up to June 30, 1986, within which the rule barring extensions of time to filemotions 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 theexpiration of the grace period on June 30, 1986. Hence, it is no longer
within the coverage of the grace period. Considering the lengthof 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 reconsiderationwithin 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 waspromulgated.
Contrary to petitioners' view, there is no law requiring the publication of Supreme Court decisions in the Official Gazettebefore they can be
binding and as a condition to their becoming effective. It is the bounden duty of counsel as lawyer in active lawpractice to
keep abreast of decisions of the Supreme Court particularly where issues have been clarified, consistently reiterated,
andpublished in the advance reports of Supreme Court decisions (G. R. s) and in such publications as
the Supreme Court ReportsAnnotated (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 decisionholding
petitioner liable under Article 2190 of the Civil Code, which provides that "the proprietor of a building
or structure isresponsible 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, sincethe 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

TAYUG RURAL BANK, plaintiff-appellee,

-versusCENTRAL 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. Junio (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.
ABS-CBN BROADCASTING CORPORATION, petitioner,
-versusCOURT 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. 4-1666 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

27,947.00

assessed
Balance

84,101.00

Add: 11/2%mo. int. fr. 416-67 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. 416-69 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." 4Therefore, 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 nonresident 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.
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.
xxxxxxxxx
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.
Lorenzo vs. Posadas (digest)
Lorenzo vs. Posadas
64 Phil 353
Facts:
On 27 May 1922, Thomas Hanley died in Zamboanga, leaving a will and considerable amount of real and personal
properties. Hanleys will provides the following: his money will be given to his nephew, Matthew Hanley, as well as the real

estate owned by him. It further provided that the property will only be given ten years after Thomas Hanleys death. Thus,
in the testamentary proceedings, the Court of First Instance of Zamboanga appointed P.J.M. Moore as trustee of the
estate. Moore took oath of office on March 10, 1924, and resigned on Feb. 29, 1932. Pablo Lorenzo was appointed in his
stead. Juan Posadas, Collector of Internal Revenue, assessed inheritance tax against the estate amounting to P2,057.74
which includes penalty and surcharge. He filed a motion in the testamentary proceedings so that Lorenzo will be ordered
to pay the amount due. Lorenzo paid the amount in protest after CFI granted Posadas motion. He claimed that the
inheritance tax should have been assessed after 10 years. He asked for a refund but Posadas declined to do so. The
latter counterclaimed for the additional amount of P1,191.27 which represents interest due on the tax and which was not
included in the original assessment. However, CFI dismissed this counterclaim. It also denied Lorenzos claim for refund
against Posadas. Hence, both appealed.
Issue: Whether the estate was delinquent in paying the inheritance tax and therefore liable for the P1,191.27 that
Posadas is asking for?
Held: Yes. It was delinquent because according to Sec. 1544 (b) of the Revised Administrative Code, payment of the
inheritance tax shall be made before delivering to each beneficiary his share. This payment should have been made
before March 10, 1924, the date when P.J.M. Moore formally assumed the function of trustee.
Although the property was only to be given after 10 years from the death of Hanley, the court considered that delivery to
the trustee is delivery to cestui que trust, the beneficiary within the meaning of Sec. 1544 (b).
Even though there was no express mention of the word trust in the will, the court of first instance was correct in
appointing a trustee because no particular or technical words are required to create a testamentary trust (69 C.J.,p. 711).
The requisites of a valid testamentary trust are: 1) sufficient words to raise a trust, 2) a definite subject, 3) a certain or
ascertained object. There is no doubt that Hanley intended to create a trust since he ordered in his will that certain of his
properties be kept together undisposed during a fixed period or for a stated purpose.
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]] were based.
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 AttorneyGeneral 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.
ZENAIDA S. BESO, complainant, vs. Judge JUAN DAGUMAN, MCTC, Sta. Margarita-Tarangan-Pagsanjan,
Samar, respondent. ALEX
DECISION
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; xxxalex
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; xxxSc lex
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: x law
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: Sc
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. Spped
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: Scmis
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. Mis sc
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. Jo spped
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. Miso
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; Nex old
(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: Ncm
"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 welltaken. Mani kx
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: Maniks
(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) Spped jo
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." Manikan
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.Ncmmis
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] Scnc m
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)Sdaad

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. Juris
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.
Beso vs Daguman Case Digest
Zenaida S. Beso v. Judge Juan Daguman
A.M. No. MTJ-99-1211
January 28, 2000
Facts: 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.
In his comment, the respondent judge alleged that the marriage of the complainant had to be solemnized in Calbayog City
though outside his territory as municipal Judge of Sta. Margarita, Samar because : 1) physically indisposed and unable to
report to his station in Sta. Margarita; 2) complainant said she had to fly abroad that same day; 3) 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; 4) 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; 5) if the
parties go beyond their plans for the scheduled marriage, complainant feared it would complicate her employment
abroad.
Held: GUILTY. The authority of a judge to solemnize marriage is only limited to those municipalities under his jurisdiction.
Clearly, Calbayog City is no longer within his area of jurisdiction. 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, and the circumstances of this case do not fall in any of these exceptions.
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:
"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"
Lastly, 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. 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. 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.
RODOLFO G. NAVARRO, complainant, vs. JUDGE HERNANDO C. DOMAGTOY, respondent.
DECISION
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. 94-980MTC, 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.
NAVARRO VS. DOMAGTOY
259 SCRA 129
July 19, 1996
FACTS:
Complainant Mayor Rodolfo Navarro of Dapa, Surigao del Norte filed this case to the Supreme Court against
respondent Judge Henando Domagtoy of MCTC of Monica-Burgos, Surigao del Norte, for gross misconduct as well as
inefficiency and ignorance of the law.

First, on Sept. 24, 1994, Judge Domagtoy solemnized the marriage of Gaspar Tagadan and Arlyn Borja despite
his knowledge that Tagadan was merely separated from his wife. Second, her performed a marriage ceremony between
Floriano Sumaylo and Gemma del Rosario in October 1994 at respondent judges residence in Dapa, SDN. As to the first,
Domagtoy contended that he merely relied on the affidavit issued by the RTC Judge of Bassey, Samar, which stated that
Tagadan and his wife have not seen each other for almost seven years. However, the certified true copy of the marriage
contract between Tagadan and Borja showed that his civil status was separated.
ISSUE:
(1)

Whether or not a court may solemnize another marriage of a husband who was merely separated from his wife for

almost seven years.

(2)

Whether or not a Judge may solemnize a marriage at his residence.

HELD:
(1) Article 41 of the Family Code expressly provides that 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 Article 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 the Code for the declaration of presumptive death. Absent this
judicial declaration, he remains to be married to Pearanda. Wittingly or unwittingly, it was manifest error on the part of
respondent judge to have accepted the joind affidavit submitted by Tagadan. Such neglect or ignorance of the law has
resulted in a bigamous and therefore void marriage.
(2) Art. 7. A marriage may be solemnized by (1) any incumbent member of the judiciary within the courts
jurisdiction xxx . Article 8, however, states that marriages 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 Art. 29 of the Family Code, or where both parties in which case the marriage may be solemnized at a house or place
designated by them in a sworn statement to that 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 is the authority of the solemnizing officer.
Under Art. 8, which is only a discretionary 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.
Judges who are appointed to specific jurisdiction may officiate in marriages 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.
Judge Domagtoy was suspended for six months for demonstrating gross ignorance of the law.
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 IndoChina 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 IndoChina 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 nonreactors 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 IndoChina 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 IndoChina 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.
CONFLICT BETWEEN SPECIAL AND GENERAL LAW
WHAT ARE THE RULES WHEN A CONFLICT ARISES BETWEEN A SPECIAL AND A GENERAL LAW?
1. If the general law was enacted first, the special law is considered the exception to the general law. Therefore the
general law remains a good law, and there is no repeal (Lichauco v. Apostol, 44 Phil 138), except insofar as the exception
or special law is concerned. However if there are inconsistencies with the general law it is considered as a repeal to the
general law.

2. If the special law was enacted first, both special law and general law are good laws unless:

a. There is an express declaration to tho contrary.

b. Or the is a clear , necessary and unreconcilable conflict (Cia General v. Coll. of Customs, 46 Phil. Cool c. Or unless the
subsequent general law covers the whole subject and is clearly intended to replace the special law on the matter.
(Joaquin v. Navarro, 81 Phil. 373)
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, 3the 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.1wph1.t
ACCORDINGLY, the judgment a quo is reversed, and Rafael Licera is hereby acquitted.
FACTS:
Rafael Licera was convicted for the crime of illegal possession of firearm and
was sentenced to imprisonment of five (5) years.

Licera, in his defense, reasoned that he was appointed as secret agent and
justified that as secret agent, he was a "peace officer." He invoked the
decision of the court in People v Macarandang and, thus, in pursuant thereof,
that he was exempt from the requirements relating to the issuance of license to
possess firearms.
ISSUE: Does the judicial decision in People v. Macarandang have the force and
effect of law?
RULING:
Article 8 of the Civil Code of the Philippines decrees that "Judicial decisions
applying interpreting the law or the Constitution shall form a part of the legal
system of the Philippines." Therefore, the court's decision in People v.
Macarandang must have the force and effect of law regarding this matter.
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.
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.
People vs. Jabinal
Facts

Respondent appealed from the judgment of the MTC Batangas finding him guilty of the crime of Illegal
Possession of Firearm and Ammunition he contested the validity of his conviction based on a retroactive application of the
ruling in People v. Mapa.

Respondent was appointed 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.

Respondent alleged that at the time of his appointments the prevailing doctrines are Macarandang and Lucero
doctrine.

In Macarandang it was held that"peace officers" are exempted from the requirements relating to the issuance of
license to possess firearms.

While Lucero doctrine provides that the granting of the temporary use of the firearm to the accused was a
necessary means to carry out the lawful purpose of the battalion commander and must be deemed incident to or
necessarily included in the duty and power of said military commander to effect the capture of a Huk leader.

Respondent and OSG alleged that the decision held in Mapa Case is of no applicability in this case
Issue

W/N the appellant should 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 case?
Ruling

The SC held that the decision in People v. Mapa reversing the Macarandang and Lucero doctrines came only in
1967, it has no proper application in this case.

Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system in the
Philippines.

The doctrine laid down in Lucero and Macarandang was part of the jurisprudence, hence, of the law, of the land,
at the time appellant was found by possession of the firearm in question and when he was 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.

Petitioner incurred no criminal liability at the time of the commission of the crime since the prevailing doctrine then
were the doctrines of Macarandang and Lucero
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.

68 SCRA 62
Secretary Justice vs. Catolico

FACTS:
Two administrative complaints and four charges of serious misconduct and gross disregard of law were formulated
against Judge Alfredo Catolico.
The first complaint concerned that of the naturalization of 50 naturalized citizens which the the respondent declared the
oath taking of the petitioners null and void. The second and third complaints which relate to respondents dismissal of the
cases which have not been tried for more than thirty days and refusal 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. The fourth complaint regarding the respondents alleged bias and prejudice
either in his questioning of the witnesses or in acquitting the accused.
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. Respondents
plead that if at all there was any error committed it is of the mind rather than the heart
ISSUE:
Whether or not the respondent acted with serious misconduct and gross disregard of law in the four complaints charged
against him.
RULING:
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.
In the first charge, the Court has, in a way, admonished the respondent, adding that they 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
With reference to the second and third charges of the Secretary, the Court had already reprimanded respondent for his
offense for his refusal to apply the law as interpreted by the tribunal.
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 the cases against respondent.
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 workaggravated; 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 antedeluvian 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.
FLORESCA vs PHILEX MINING CORPORATION Case Digest
PERFECTO S. FLORESCA et al vs PHILEX MINING CORPORATION et al

FACTS:

Floresca et al 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. Floresca et al moved to claim their benefits pursuant to the Workmens
Compensation Act before the Workmens Compensation Commission. They also petitioned before the regular courts and
sue Philex for additional damages. Philex invoked that they can no longer be sued because the petitioners have already
claimed benefits under the WCA.

ISSUE:

Whether or not Floresca et al can claim benefits and at the same time sue.

HELD:

Under the law, Floresca et al could only do either one. If they filed for benefits under the WCA then they will be
estopped from proceeding with a civil case before the regular courts. Conversely, if they sued before the civil courts then
they would also be estopped from claiming benefits under the WCA. The SC however ruled that Floresca et al are
excused from this deficiency due to ignorance of the fact. Had they been aware of such then they may have not availed of
such a remedy. However, if in case theyll win in the lower court whatever award may be granted, the amount given to
them under the WCA should be deducted. The SC emphasized that if they would go strictly by the book in this case then
the purpose of the law may be defeated. Idolatrous reverence for the letter of the law sacrifices the human being. The
spirit of the law insures mans survival and ennobles him. As Shakespeare said, the letter of the law killeth but its spirit
giveth life.
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.
ARTICLE 9
DUTY OF COURTS TO DECIDECHU JAN VS LUCIO BERNAS GR NO L-10010 AUG 1, 1916
FACTS:Plaintiff Chu Jan brought suit against the defendant when on their cockfight match,defendant Lucio Bernas was
declared the winner. Each had put up a wager of P160 beforethe cockfight. Justice of peace court decided that bout was a
draw. Defendant appealed toCourt of First Instance praying judgment and ordering defendant to abide and comply
withrules and regulations governing cockfights,to pay P160 and return the other amount whichis in safekeeping of Cockpit
owner Tomas Almonte. Defendant denied allegations and movedto dismiss cost against plaintiff.Court of First Instance dismissed
the appeal without special findings. On plaintiff'smotion, an order ordering provincial treasurer and if possible,
Municipal Treasurer of Tabacco to release Deposit of P160 and return to plaintiff Chu Jan. Proceedings
wasforwarded to Supreme Court by means of the proper bill of exceptions.ISSUE:Did Court of First Instance ere in
dismissing the case without findings since groundsfor dismissal pronounced by lower court appealed from ere that court
has always dismissedcases of this nature, that he is not familiar with the rules governing cockfights and duties
of referees; that he does not know where to find the law and that he knows of no law that governs the right
to plaintiff and defendants concerning cockfights.Held:I g n o r a n c e o f t h e c o u r t o r l a c k o f k n o w l e d g e
regarding law applicable to a casesubmitted to him for decision are not reasons that can
s e r v e t o e x c u s e t h e c o u r t f o r terminating the proceedings by dismissing them without deciding on the
issue. Such excusei s l e s s a c c e p t a b l e b e c a u s e f o r e s e e i n g t h a t a c a s e m a y a r i s e t o w h i c h n o l a w
w o u l d b e applicable, the Civil Code in 2
nd
paragraph of Art 6, provides that Customs of the place shallb e o b s e r v e d a n d i n a b s e n c e t h e r e o f , t h e
g e n e r a l p r i n c i p l e s o f l a w . T h e r e f o r e , t h e judgment and order appealed from are reversed and to
record of the proceedings shall remanded to court from when they came for due trial and judgment as provided by
law. Nospecial finding is made with regard to cost

G.R. No. 119987-88

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?
, 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. 94138071, 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 latters 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 latters 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 of reclusion
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 courts finding of guilt is not at issue in the case at bench. The basis of the trial courts 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 ofReclusion 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 judges 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
judges 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 Judges reasoning, this Courts 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 quo open 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 appellees 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 Judges reasoning, this Courts 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 quo open 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 appellees 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.
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)
CASE DIGEST ON PEOPLE v. VENERACION [249 SCRA 244 (1995)]
Nature: Petition for certiorari to review a decision of RTC of Manila
?
Aug 2, 1994 cadaver of a young girl identified as Angel Alquiza was seen floating along Del Pan St. near the
corner of Lavesares St., Binondo, Manila. She was wrapped in a sack & yellow table cloth tied with a nylon cord with both
feet & left hand protruding from it was seen floating along.
?
Abundio Lagunday, a.k.a. Jr. Jeofrey and Henry Lagarto y Petilla 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
?
Trial Court rendered a decision 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 of reclusion perpetua with all the accessories provided for by law.
?
February 8, 1995 City Prosecutor of Manila 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). Feb. 10, 1995 the motion was denied by the court.
Issue: WON 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 RA 7659, after finding the accused guilty of the crime of Rape
with Homicide.
?
YES. No question on the guilt of the accused.
?
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, resist encroachments by governments, political parties, or even the interference of their own personal beliefs.
?
The RTC judge found the accused beyond reasonable doubt of the crime of rape and homicide. 11 of RA No.
7659 provides:
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 12 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. . . .
?
Under the law the penalty imposable for the crime of rape with homicide is NOT reclusion perpetua but Death.
?
The law provides that when by reason or on the occasion of rape, a homicide is committed, the penalty shall be
death
?
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 & well-defined instances.
?
People vs. Limaco 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 w/ the wisdom, efficacy or morality of laws.
?
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.

LOURDES CORPUS, complainant,

vs.
MUNICIPAL JUDGE CIPRIANO P. CABALUNA, JR., ALIMODIAN, ILOILO, respondent.
MUOZ PALMA, J.:1wph1.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.
FACTS:
Lourdes Corpus was declared the owner of two parcels of land located in Barrio Bugang Municipality of Alimodian on
September 5, 1955 by the Court of First Instance of Iloilo and was affirmed by the Court of Appeals on February 26, 1963.

On July 30, 1963, Adriano Camarista executed deed of sale to the Cabalfin couple and the document was ratified by
Municipal Judge of Alimodian, Mr. Cipriano P. Cabaluna, Jr., for the cadastral land 1762, which apparently was the same
land litigated in the civil case of Corpus.
Corpus charged Judge Cabaluna with having committed gross fraud for ratifying a deed of sale of cadastral land 1762
despite the Judges supposed knowledge of the pendency of the civil case before the Court of Appeals.
ISSUE:
Whether or not the ratification of the deed of sale by the respondent makes him guilty of gross fraud.
RULING:
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 complainant was the same property which he awarded o the
Cabalfin couples in the cadastral proceeding: such evidence is, however, wanting in the record of this case.
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.
Complainants failure to bring out that the respondent was cognizant of the relation of the property involved in the civil
case to the land applied for in the cadastral proceeding, shows that the respondent could not have connived with the
claimant Camarista and/or the Cabalfins in causing the approval of the latters claim over the land in question to the
prejudice of the rights of the complainant.
The respondent was exonerated and the charge was dismissed.
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
Executive 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:
ILLEGAL
POSSESSION OF
DEADLY WEAPON
(VIOLATION 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
President
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 L42050-66); 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 L42050-66)
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.
Case of People of the R.P. vs. Purisima
GR Nos. L-42050-66 20November1978
FACTS OF THE CASE:
There are 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.
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.
ISSUES OF THE CASE:
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?
There are two elements to the the offense: 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.
The petitioner by having one particular stand of the carrying of any dangerous weapon outside of the residence w/o
regard to motive or intent makes this a case of statutory construction.
HELD:
COURT DISMISSED ALL MOTIONS MADE BY THE PETITIONER AND AFFIRMS ALL DECISIONS MADE BY THE
RESPONDENT JUDGES.
STATUTORY CONSTRUCTION LESSON:
The problem of determining what acts fall within the purview of a statute, 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.
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 consequence
DESIGNATION OF OFFENSE, SEC. 8, RULE 110
Facts:
Petitioners: City Fiscal of Manila, Provincial Fiscal of Samar, and the Solicitor General
Public Respondents: CFI of Manila-branches VII & XVIII, CFI of Samar
Par. 3, PD#9 provides:
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 5 to 10 years as a Military Court/Tribunal/Commission may direct
Petitioners-fiscals filed before the respective respondent courts several & separate informations for illegal possession of
deadly weapon in violation of Par. 3 of PD#9. (For illustration, one of the similarly written infos. alleged: Thataccused
did then and there wilfully, unlawfully and knowingly carry outside of his residence a bladed and pointed weaponthe
same not being used as a necessary tool or implement to earn his livelihood nor being used in connection therewith.)
Respondent courts, upon motions to quash filed by the defense counsels, issued their respective orders quashing the
informations on common ground that the said informations did not allege facts constituting an offense penalized under
PD#9 for failure to state an essential element of the crime: that the carrying outside of the accuseds 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. They said that PD#9 should be read in the context of
Proc.#1081 which seeks to attain 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. They added that the noninclusion of the aforementioned element of the offense leads to confusion as the same act punished as an offense under
par. 3 of PD#9 is also the subject of another penal statute and a Manila city ordinance:
Sec. 26, Act#1780: It should be unlawful for any person to carry concealed about his person any bowie knife, dirk,
dagger, kris, or other deadly weapon: x x x. Any person violating the provisions of this section shall, upon conviction in a
court of competent jurisdiction, be punished by a fine not exceeding P500, or by imprisonment for a period not exceeding
6 months, or both
Ordinance#3820penalizes with a fine not more than P200 or imprisonment for not more than one month, or both
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 weaponin any public place.
Thus, the 26 petitions for review assailing the respective orders of the respondent courts. The petitions, having similar
issues, were consolidated by the Supreme Court.
The argument of the petitioners:
1. A perusal of par.3 of PD#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
2. The City Fiscal of Manila adds that in statutory offenses the intention of the accused who commits the act is
immaterial; it is enough if the prohibited act is voluntarily perpetuated
ISSUE: W/N the informations filed are sufficient form and substance to constitute the offense penalized under PD#9
HELD: NO.

It is a constitutional right of any person who stands charged in a criminal prosecution to be informed of the nature and
cause of accusation against him.
Sec. 5 Rule 110 of the Rules of Court expressly requires that for a complaint or information to be sufficient, it must 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. This is
especially in the case at bar where the acts being punished are covered by 2 penal statutes and a city ordinance. The
right becomes more compelling for an accused to be confronted with the facts constituting the essential elements of the
offense charged against him, otherwise such act may be made to fall, at the discretion of a police officer or a prosecuting
fiscal, under any of the 3 punitive laws and thus expose the accused to oppression and harassment.
The elements of the offense under par. 3, PD#9 are: 1) the carrying outside ones residence of any bladed, blunt or
pointed weapon not used as a necessary tool or implement for a livelihood; and 2) 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 Act#1780 and Ord#3820. Thus, a simple act of carrying any of the weapons described under
PD#9 is not a crime in itself. What makes the act criminal under the decree is the motivation behind it. Without such
motivation, the act falls under the Act or the Ordinance. Consequently, the informations filed by petitioner are fatally
defective and quashal is proper.
The filing of the petitions were unnecessary because the petitioners could have availed itself of other remedies based on
Rule 117, Sec.7. (Effect of sustaining the motion to quash); Rule 110, Sec.13 (Amendment of Info or complaint):
1. If the evidence so warranted, the People could have filed an amended info to include the second element of the
offense as defined in the disputed orders of respondents. The SC has previously ruled that if the facts alleged in the info
do not constitute an offense, the case should not be dismissed but the prosecution should be given an opportunity to
amend the info.
2. If the facts so justified, the petitioners could have filed a complaint either under Sec. 26 of Act#1780 or Manila city
ordinance#3820, especially since the dismissal of the cases were made prior to arraignment of the accused and on a
motion to quash. Under Sec. 8, Rule 117, an order sustaining the motion to quash is not a bar to another prosecution for
the same offense unless the motion was based on extinguishment of criminal liability or double jeopardy.
PETITIONS DENIED.
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.
Martinez v Van Buskirk Digest
Facts:

1. On the 11th day of September, 1908, Carmen Ong de Martinez, was riding a carromata in Ermita, Manila when a delivery
wagon owned by the defendant (used for the transportation of fodder and to which two horses are attached), came from
the opposite direction, while their carromata went close to the sidewalk in order to let the delivery wagon pass by.
However, instead of merely passing by, the horses ran into the carromata occupied by the plaintiff with her child and
overturned it, causing a serious cut upon the plaintiffs head.

3. The defendant contends that the cochero, who was driving his delivery wagon at the time of the accident, was actually a
good servant and was considered a safe and reliable cochero. He also claims that the cochero was tasked to deliver
some forage at Calle Herran, and for that purpose the defendants employee tied the driving lines of the horses to the front
end of the delivery wagon for the purpose of unloading the forage to be delivered. However, a vehicle passed by the driver
and made noises that frightened the horses causing them to run. The employee failed to stop the horses since he was
thrown upon the ground.
4. From the stated facts, the court ruled that the defendant was guilty of negligence. The court specifically cited a paragraph
of Article 1903 of the Civil Code. Hence, this is appeal to reverse such decision.
Issue: Whether or not the employer, who has furnished a gentle and tractable team (of horses) and a trusty and
capable driver, is liable for the negligence of such driver.
NO. The cochero of the defendant was not negligent in leaving the horses in the manner described by the evidence in this
case. It is believed that acts or performances which, in a long time, have not been destructive and which are approved by
the society are considered as custom. Hence, they cannot be considered as unreasonable or imprudent.
The reason why they have been permitted by the society is that they are beneficial rather that prejudicial. One could not
easily hold someone negligent because of some act that led to an injury or accident. It would be unfair therefore to render
the cochero negligent because of such circumstances.
The court further held that it is a universal practice of merchants during that time to deliver products through horse-drawn
vehicles; and it is also considered universal practice to leave the horses in the manner in which they were left during the
accident. It has been practiced for a long time and generally has not been the cause of accidents or injuries the judgment
is therefore reversed.
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 "G1", 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 marriage
1931"; 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. 911;] 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.
CASE DIGEST OF YAO KEE V. SY-GONZALES
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CASE DIGEST OF YAO KEE V. SY-GONZALES [167 S 737] - F: Sy-Kiat, a Chinese national, died in 1977 in Kaloocan
City, where he was residing, leaving behind substantial real and personal properties here in the Phils. Petition for letters of
administration filed by his natural children, was opposed on the ground that Sy Kiat was legally married to Yao Kee, in
Fookien, China on 1/13/31 and that the oppositors are the legitimate children. The probate court rendered judgment in
favor of the oppositors; this was modified and set aside by the CA w/c held that both sets of children were acknowledged
natural children. Both parties moved for partial reconsideration.
HELD: For failure to prove the foreign law or custom, and consequently, the validity of the marriage in accordance w/ said
law or custom, the marriage between Yao Kee and Sy Kiat cannot be recognized in this jurisdiction. In the case at bar,
petitioners did not present any competent evidence relative to the law and customs 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 bec. they are selfserving evidence, but more importantly, there is no showing that they are competent to testify on the subject matter.
Custom is defined as "a rule of conduct formed by repetition of acts, uniformly observed (practiced) as a social rule,
legally binding and obligatory." The law requires that "a custom must be proved as a fact, according to the rules of
evidence." 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." The same
evidence, if not one of a higher degree, should be required of a foreign custom.
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.
RESOLUTION
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 wellpublicized 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. 9t.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.
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.
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, respondentappellant 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..
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, 10this 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.

Rural Bank of Lipa City vs CA Case Digest

The Rural Bank of Lipa City Inc., etc. vs. Court of Appeals
[GR 124535, 28 September 2001]

Facts: Reynaldo Villanueva, Sr., a stockholder of the Rural Bank of Lipa City, executed a Deed of Assignment, wherein he
assigned his shares, as well as those of 8 other shareholders under his control with a total of 10,467 shares, in favor of
the stockholders of the Bank represented by its directors Bernardo Bautista, Jaime Custodio and Octavio Katigbak.
Sometime thereafter, Reynaldo Villanueva, Sr. and his wife, Avelina, executed an Agreement wherein they acknowledged
their indebtedness to the Bank in the amount of P4,000,000.00, and stipulated that said debt will be paid out of the
proceeds of the sale of their real property described in the Agreement. At a meeting of the Board of Directors of the Bank
on 15 November 1993, the Villanueva spouses assured the Board that their debt would be paid on or before December 31
of that same year; otherwise, the Bank would be entitled to liquidate their shareholdings, including those under their
control. In such an event, should the proceeds of the sale of said shares fail to satisfy in full the obligation, the unpaid
balance shall be secured by other collateral sufficient therefor. When the Villanueva spouses failed to settle their
obligation to the Bank on the due date, the Board sent them a letter demanding: (1) the surrender of all the stock
certificates issued to them; and (2) the delivery of sufficient collateral to secure the balance of their debt amounting to
P3,346,898.54.

The Villanuevas ignored the bank's demands, whereupon their shares of stock were converted into Treasury Stocks.
Later, the Villanuevas, through their counsel, questioned the legality of the conversion of their shares. On 15 January
1994, the stockholders of the Bank met to elect the new directors and set of officers for the year 1994. The Villanuevas
were not notified of said meeting. In a letter dated 19 January 1994, Atty. Amado Ignacio, counsel for the Villanueva
spouses, questioned the legality of the said stockholders' meeting and the validity of all the proceedings therein. In reply,
the new set of officers of the Bank informed Atty. Ignacio that the Villanuevas were no longer entitled to notice of the said
meeting since they had relinquished their rights as stockholders in favor of the Bank. Consequently, the Villanueva
spouses filed with the Securities and Exchange Commission (SEC), a petition for annulment of the stockholders' meeting
and election of directors and officers on 15 January 1994, with damages and prayer for preliminary injunction (SEC Case
02-94-4683_. Joining them as co-petitioners were Catalino Villanueva, Andres Gonzales, Aurora Lacerna, Celso Laygo,
Edgardo Reyes, Alejandro Tonogan, and Elena Usi. Named respondents were the newly-elected officers and directors of
the Rural Bank, namely: Bernardo Bautista, Jaime Custodio, Octavio Katigbak, Francisco Custodio and Juanita Bautista.
On 6 April 1994, the Villanuevas' application for the issuance of a writ of preliminary injunction was denied by the SEC
Hearing Officer on the ground of lack of sufficient basis for the issuance thereof.

However, a motion for reconsideration was granted on 16 December 1994, upon finding that since the Villanuevas' have
not disposed of their shares, whether voluntarily or involuntarily, they were still stockholders entitled to notice of the annual
stockholders' meeting was sustained by the SEC. Accordingly, a writ of preliminary injunction was issued enjoining
Bautista, et. al. from acting as directors and officers of the bank. Thereafter, Bautista, et al. filed an urgent motion to quash
the writ of preliminary injunction, challenging the propriety of the said writ considering that they had not yet received a
copy of the order granting the application for the writ of preliminary injunction. With the impending 1995 annual
stockholders' meeting only 9 days away, the Villanuevas filed an Omnibus Motion praying that the said meeting and
election of officers scheduled on 14 January 1995 be suspended or held in abeyance, and that the 1993 Board of
Directors be allowed, in the meantime, to act as such. 1 day before the scheduled stockholders meeting, the SEC Hearing
Officer granted the Omnibus Motion by issuing a temporary restraining order preventing Bautista, et al. from holding the
stockholders meeting and electing the board of directors and officers of the Bank. A petition for Certiorari and Annulment
with Damages was filed by the Rural Bank, its directors and officers before the SEC en banc. On 7 June 1995, the SEC
en banc denied the petition for certiorari. A subsequent motion for reconsideration was likewise denied by the SEC en
banc in a Resolution dated 29 September 1995. A petition for review was filed before the Court of Appeals (CA-GR SP
38861), assailing the Order dated 7 June 1995 and the Resolution dated 29 September 1995 of the SEC en banc in SEC

EB 440. The appellate court upheld the ruling of the SEC. Bautista, et al.'s motion for reconsideration was likewise denied
by the Court of Appeals in an Order dated 29 March 1996. The bank, Bautista, et al. filed the instant petition for review.
Issue: Whether there was valid transfer of the shares to the Bank.
Held: For a valid transfer of stocks, there must be strict compliance with the mode of transfer prescribed by law. The
requirements are: (a) There must be delivery of the stock certificate: (b) The certificate must be endorsed by the owner or
his attorney-in-fact or other persons legally authorized to make the transfer; and (c) To be valid against third parties, the
transfer must be recorded in the books of the corporation. As it is, compliance with any of these requisites has not been
clearly and sufficiently shown. Still, while the assignment may be valid and binding on the bank, et al. and the Villanuevas,
it does not necessarily make the transfer effective. Consequently, the bank et al., as mere assignees, cannot enjoy the
status of a stockholder, cannot vote nor be voted for, and will not be entitled to dividends, insofar as the assigned shares
are concerned. Parenthetically, the Villanuevas cannot, as yet, be deprived of their rights as stockholders, until and unless
the issue of ownership and transfer of the shares in question is resolved with finality.
GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-RECIO, petitioner, vs. REDERICK A. RECIO, respondent.
DECISION
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.
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]
[14]

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:
xxx
(5)

xxx

xxx

If previously married, how, when and where the previous marriage was dissolved or annulled;
xxx

xxx

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 (FilipinoAustralian) 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.
Garcia-Recio vs. Recio
TITLE: Grace J. Garcia-Recio v Rederick A. Recio
CITATION: GR NO. 138322, Oct. 2, 2002 | 366 SCRA 437

FACTS:

Rederick A. Recio, a Filipino, was married to Editha Samson, an Australian Citizen, in Malabon, Rizal on March 1, 1987.
They lived as husband and wife in Australia. However, an Australian family court issued purportedly a decree of divorce,
dissolving the marriage of Rederick and Editha on May 18, 1989.

On January 12, 1994, Rederick married Grace J. Garcia where it was solemnized at Our lady of Perpetual Help Church,
Cabanatuan City. Since October 22, 1995, the couple lived separately without prior judicial dissolution of their marriage.
As a matter of fact, while they were still in Australia, their conjugal assets were divided on May 16, 1996, in accordance
with their Statutory Declarations secured in Australia.

Grace filed a Complaint for Declaration of Nullity of Marriage on the ground of bigamy on March 3, 1998, claiming that she
learned only in November 1997, Redericks marriage with Editha Samson.

ISSUE: Whether the decree of divorce submitted by Rederick Recio is admissible as evidence to prove his legal capacity
to marry petitioner and absolved him of bigamy.

HELD:

The nullity of Redericks marriage with Editha as shown by the divorce decree issued was valid and recognized in the
Philippines since the respondent is a naturalized Australian. However, there is absolutely no evidence that proves
respondents legal capacity to marry petitioner though the former presented a divorce decree. The said decree, being a
foreign document was inadmissible to court as evidence primarily because it was not authenticated by the consul/
embassy of the country where it will be used.

Under Sections 24 and 25 of Rule 132, 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 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.
Thus, the Supreme Court remands the case to the Regional Trial Court of Cabanatuan City to receive or trial evidence
that will conclusively prove respondents legal capacity to marry petitioner and thus free him on the ground of bigamy.
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.
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.1wph1.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.
National marketing corporation Vs Tecson Case Digest
National marketing corporation Vs Tecson GR no. L-2013127 August 1969
Facts:
December 21, 1965, National Marketing Corporation filed a complaint, docketed as civil case no. 63701on the
same court, as successor of the Price Stabilization Corporation, against the same defendant from10 years ago. Defendant
Miguel Tecson moved to dismiss the said complaint upon the ground lack of jurisdiction over the subject matter of that and
prescription of action. The court, then, issued an order of dismissal with regards the article 13 of the civil code. However,
National Marketing Corporation appealed to the court of appeals from such order. Looking at the fact that 1960 and 1964
is a leap year, they insisted that a year means a calendar year and a leap year would still be counted as 1 year even if it
consists of 366 days. The case reached its conclusion with the appellants theory with regards to the article 13 of the civil
code.
Issues:
Whether or not the term year as used in the article 13 of the civil code is limited to 365 days.
HELD:
NO. "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. 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 term year as used in the article 13 of the civil code is limited to 365 days. However, it is said to be unrealistic
and if public interest demands a reversion to the policy embodied in the revised administrative code, this may be done
through legislative process and not by judicial decree.