Rubi vs provincial board Facts: This is an application for habeas corpus in favor of Rubi and other Manguianes of the

Province of Mindoro. The provincial board of Mindoro adopted resolution No. 25 which states that provincial governor of any province in which non-Christian inhabitants (uncivilized tribes) are found is authorized, when such a course is deemed necessary in the interest of law and order, to direct such inhabitants to take up their habitation on sites on unoccupied public lands to be selected by him and approved by the provincial board. It is resolved that under section 2077 of the Administrative Code, 800 hectares of public land in the sitio of Tigbao on Naujan Lake be selected as a site for the permanent settlement of Mangyanes in Mindoro. Further, Mangyans may only solicit homesteads on this reservation providing that said homestead applications are previously recommended by the provincial governor. Thereafter, the provincial governor of Mindoro issued executive order No. 2, which says that the provincial governor has selected a site in the sitio of Tigbao on Naujan Lake for the permanent settlement of Mangyanes in Mindoro. In that case, pursuant to Section 2145 of the Revised Administrative Code, all the Mangyans in the townships of Naujan and Pola and the Mangyans east of the Baco River including those in the districts of Dulangan and Rubi's place in Calapan, were ordered to take up their habitation on the site of Tigbao, Naujan Lake. Also, that any Mangyan who shall refuse to comply with this order shall upon conviction be imprisoned not exceed in sixty days, in accordance with section 2759 of the revised Administrative Code. Said resolution of the provincial board of Mindoro were claimed as necessary measures for the protection of the Mangyanes of Mindoro as well as the protection of public forests in which they roam, and to introduce civilized customs among them. It appeared that Rubi and those living in his rancheria have not fixed their dwelling within the reservation of Tigbao and are liable to be punished. It is alleged that the Manguianes are being illegally deprived of their liberty by the provincial officials of that province. Rubi and his companions are said to be held on the reservation established at Tigbao, Mindoro, against their will, and one Dabalos is said to be held under the custody of the provincial sheriff in the prison at Calapan for having run away form the reservation.

Issues: (1) Whether or Not Section 2145 of the Administrative Code deprive a person of his liberty without due process of law. (2) Whether or Not Section 2145 of the Administrative Code of 1917 is constitutional.

Held: The Court held that section 2145 of the Administrative Code does not deprive a person of his liberty without due process of law and does not deny to him the equal protection of the laws, and that confinement in reservations in accordance with said section does not constitute slavery and involuntary servitude. The Court is further of the opinion that section 2145 of the Administrative Code is a legitimate exertion of the police power, somewhat analogous to the Indian policy of the United States. Section 2145 of the Administrative Code of 1917 is constitutional. The preamble of the resolution of the provincial board of Mindoro which set apart the Tigbao reservation, it will be read, assigned as reasons fort the action, the following: (1) The failure of former attempts for the advancement of the non-Christian people of the province; and (2) the only successfully method for educating the Manguianes was to oblige them to live in a permanent settlement. The Solicitor-General adds the following; (3) The protection of the Manguianes; (4) the protection of the public forests in which they roam; (5) the necessity of introducing civilized customs among the Manguianes. Considered purely as an exercise of the police power, the courts cannot fairly say that the Legislature has exceeded its rightful authority. It is, indeed, an unusual exercise of that power. But a great malady requires an equally drastic remedy. One cannot hold that the liberty of the citizen is unduly interfered without when the degree of civilization of the Manguianes is considered. They are restrained for their own good and the general good of the Philippines. Nor can one say that due process of law has not been followed. None of the rights of the citizen can be taken away except by due process of law. To constitute "due process of law," as has been often held, a judicial proceeding is not always necessary. In some instances, even a hearing and notice are not requisite a rule which is especially true where much must be left to the discretion of the administrative officers in applying a law to particular cases. The idea of the provision in question is to unify the people of the Philippines so that they may approach the highest conception of nationality. The public policy of the Government of the Philippine Islands is shaped with a view to benefit the Filipino people as a whole. The Manguianes, in order to fulfill this governmental policy, must be confined for a time, as we have said, for their own good and the good of the country. Therefore, petitioners are not unlawfully imprisoned or restrained of their liberty. Habeas corpus can, therefore, not issue. Republic of the Philippines SUPREME COURT Manila EN BANC DECISION

December 21, 1915 G.R. No. L-10572 FRANCIS A. CHURCHILL and STEWART TAIT, plaintiffs-appellees, vs. JAMES J. RAFFERTY, Collector of Internal Revenue, defendant-appellant. Attorney-General Avancea for appellant. Aitken and DeSelms for appellees. Trent, J.: The judgment appealed from in this case perpetually restrains and prohibits the defendant and his deputies from collecting and enforcing against the plaintiffs and their property the annual tax mentioned and described in subsection (b) of section 100 of Act No. 2339, effective July 1, 1914, and from destroying or removing any sign, signboard, or billboard, the property of the plaintiffs, for the sole reason that such sign, signboard, or billboard is, or may be, offensive to the sight; and decrees the cancellation of the bond given by the plaintiffs to secure the issuance of the preliminary injunction granted soon after the commencement of this action. This case divides itself into two parts and gives rise to two main questions; (1) that relating to the power of the court to restrain by injunction the collection of the tax complained of, and (2) that relating to the validity of those provisions of subsection (b) of section 100 of Act No. 2339, conferring power upon the Collector of Internal Revenue to remove any sign, signboard, or billboard upon the ground that the same is offensive to the sight or is otherwise a nuisance. The first question is one of the jurisdiction and is of vital importance to the Government. The sections of Act No. 2339, which bear directly upon the subject, are 139 and 140. The first expressly forbids the use of an injunction to stay the collection of any internal revenue tax; the second provides a remedy for any wrong in connection with such taxes, and this remedy was intended to be exclusive, thereby precluding the remedy by injunction, which remedy is claimed to be constitutional. The two sections, then, involve the right of a dissatisfied taxpayers to use an exceptional remedy to test the validity of any tax or to determine any other question connected therewith, and the question whether the remedy by injunction is exceptional. Preventive remedies of the courts are extraordinary and are not the usual remedies. The origin and history of the writ of injunction show that it has always been regarded as an extraordinary, preventive remedy, as distinguished from the common course of the law to redress evils after they have been consummated. No injunction issues as of course, but is granted only upon the oath of a party and when there is no adequate remedy at law. The Government does, by section 139 and 140, take away the preventive remedy of injunction, if it ever existed, and leaves the taxpayer, in a contest with it, the same ordinary remedial actions which prevail between citizen and citizen. The Attorney-General, on behalf of the defendant, contends that there is no provisions of the paramount law which prohibits such a course. While, on the other hand, counsel for plaintiffs urge that the two sections are unconstitutional because (a) they attempt to deprive aggrieved taxpayers of all substantial remedy for the protection of their property, thereby, in effect, depriving them of their property without due process of law, and (b) they attempt to diminish the jurisdiction of the courts, as conferred upon them by Acts Nos. 136 and 190, which jurisdiction was ratified and confirmed by the Act of Congress of July 1, 1902. In the first place, it has been suggested that section 139 does not apply to the tax in question because the section, in speaking of a tax, means only legal taxes; and that an illegal tax (the one complained of) is not a tax, and, therefore, does not fall within the inhibition of the section, and may be restrained by injunction. There is no force in this suggestion. The inhibition applies to all internal revenue taxes imposes, or authorized to be imposed, by Act No. 2339. (Snyder vs. Marks, 109 U.S., 189.) And, furthermore, the mere fact that a tax is illegal, or that the law, by virtue of which it is imposed, is unconstitutional, does not authorize a court of equity to restrain its collection by injunction. There must be a further showing that there are special circumstances which bring the case under some well recognized head of equity jurisprudence, such as that irreparable injury, multiplicity of suits, or a cloud upon

title to real estate will result, and also that there is, as we have indicated, no adequate remedy at law. This is the settled law in the United States, even in the absence of statutory enactments such as sections 139 and 140. (Hannewinkle vs. Mayor, etc., of Georgetown, 82 U.S., 547; Indiana Mfg. Co. vs. Koehne, 188 U.S., 681; Ohio Tax cases, 232 U. S., 576, 587; Pittsburgh C. C. & St. L. R. Co. vs. Board of Public Works, 172 U. S., 32; Shelton vs. Plat, 139 U.S., 591; State Railroad Tax Cases, 92 U. S., 575.) Therefore, this branch of the case must be controlled by sections 139 and 140, unless the same be held unconstitutional, and consequently, null and void. The right and power of judicial tribunals to declare whether enactments of the legislature exceed the constitutional limitations and are invalid has always been considered a grave responsibility, as well as a solemn duty. The courts invariably give the most careful consideration to questions involving the interpretation and application of the Constitution, and approach constitutional questions with great deliberation, exercising their power in this respect with the greatest possible caution and even reluctance; and they should never declare a statute void, unless its invalidity is, in their judgment, beyond reasonable doubt. To justify a court in pronouncing a legislative act unconstitutional, or a provision of a state constitution to be in contravention of the Constitution of the United States, the case must be so clear to be free from doubt, and the conflict of the statute with the constitution must be irreconcilable, because it is but a decent respect to the wisdom, the integrity, and the patriotism of the legislative body by which any law is passed to presume in favor of its validity until the contrary is shown beyond reasonable doubt. Therefore, in no doubtful case will the judiciary pronounce a legislative act to be contrary to the constitution. To doubt the constitutionality of a law is to resolve the doubt in favor of its validity. (6 Ruling Case Law, secs. 71, 72, and 73, and cases cited therein.) It is also the settled law in the United States that due process of law does not always require, in respect to the Government, the same process that is required between citizens, though it generally implies and includes regular allegations, opportunity to answer, and a trial according to some well settled course of judicial proceedings. The case with which we are dealing is in point. A citizens property, both real and personal, may be taken, and usually is taken, by the government in payment of its taxes without any judicial proceedings whatever. In this country, as well as in the United States, the officer charged with the collection of taxes is authorized to seize and sell the property of delinquent taxpayers without applying to the courts for assistance, and the constitutionality of the law authorizing this procedure never has been seriously questioned. (City of Philadelphia vs. [Diehl] The Collector, 5 Wall., 720; Nicholl vs. U.S., 7 Wall., 122, and cases cited.) This must necessarily be the course, because it is upon taxation that the Government chiefly relies to obtain the means to carry on its operations, and it is of the utmost importance that the modes adopted to enforce the collection of the taxes levied should be summary and interfered with as little as possible. No government could exist if every litigious man were permitted to delay the collection of its taxes. This principle of public policy must be constantly borne in mind in determining cases such as the one under consideration. With these principles to guide us, we will proceed to inquire whether there is any merit in the two propositions insisted upon by counsel for the plaintiffs. Section 5 of the Philippine Bill provides: That no law shall be enacted in said Islands which shall deprive any person of life, liberty, or property without due process of law, or deny to any person therein the equal protection of the law. The origin and history of these provisions are well-known. They are found in substance in the Constitution of the United States and in that of ever state in the Union. Section 3224 of the Revised Statutes of the United States, effective since 1867, provides that: No suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court. Section 139, with which we have been dealing, reads: No court shall have authority to grant an injunction to restrain the collection of any internal-revenue tax. A comparison of these two sections show that they are essentially the same. Both expressly prohibit the restraining of taxes by injunction. If the Supreme Court of the United States has clearly and definitely held that the provisions of section 3224 do not violate the due process of law and equal protection of the law clauses in the Constitution,

we would be going too far to hold that section 139 violates those same provisions in the Philippine Bill. That the Supreme Court of the United States has so held, cannot be doubted. In Cheatham vs. United States (92 U.S., 85,89) which involved the validity of an income tax levied by an act of Congress prior to the one in issue in the case of Pollock vs. Farmers Loan & Trust Co. (157 U.S., 429) the court, through Mr. Justice Miller, said: If there existed in the courts, state or National, any general power of impeding or controlling the collection of taxes, or relieving the hardship incident to taxation, the very existence of the government might be placed in the power of a hostile judiciary. (Dows vs. The City of Chicago, 11 Wall., 108.) While a free course of remonstrance and appeal is allowed within the departments before the money is finally exacted, the General Government has wisely made the payment of the tax claimed, whether of customs or of internal revenue, a condition precedent to a resort to the courts by the party against whom the tax is assessed. In the internal revenue branch it has further prescribed that no such suit shall be brought until the remedy by appeal has been tried; and, if brought after this, it must be within six months after the decision on the appeal. We regard this as a condition on which alone the government consents to litigate the lawfulness of the original tax. It is not a hard condition. Few governments have conceded such a right on any condition. If the compliance with this condition requires the party aggrieved to pay the money, he must do it. Again, in State Railroad Tax Cases (92 U.S., 575, 613), the court said: That there might be no misunderstanding of the universality of this principle, it was expressly enacted, in 1867, that no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court. (Rev, Stat., sec. 3224.) And though this was intended to apply alone to taxes levied by the United States, it shows the sense of Congress of the evils to be feared if courts of justice could, in any case, interfere with the process of collecting taxes on which the government depends for its continued existence. It is a wise policy. It is founded in the simple philosophy derived from the experience of ages, that the payment of taxes has to be enforced by summary and stringent means against a reluctant and often adverse sentiment; and to do this successfully, other instrumentalities and other modes of procedure are necessary, than those which belong to courts of justice. And again, in Snyder vs. Marks (109 U.S., 189), the court said: The remedy of a suit to recover back the tax after it is paid is provided by statute, and a suit to restrain its collection is forbidden. The remedy so given is exclusive, and no other remedy can be substituted for it. Such has been the current of decisions in the Circuit Courts of the United States, and we are satisfied it is a correct view of the law. In the consideration of the plaintiffs second proposition, we will attempt to show (1) that the Philippine courts never have had, since the American occupation, the power to restrain by injunction the collection of any tax imposed by the Insular Government for its own purpose and benefit, and (2) that assuming that our courts had or have such power, this power has not been diminished or curtailed by sections 139 and 140. We will first review briefly the former and present systems of taxation. Upon the American occupation of the Philippine, there was found a fairly complete system of taxation. This system was continued in force by the military authorities, with but few changes, until the Civil Government assumed charge of the subject. The principal sources of revenue under the Spanish regime were derived from customs receipts, the so-called industrial taxes, the urbana taxes, the stamp tax, the personal cedula tax, and the sale of the public domain. The industrial and urbana taxes constituted practically an income tax of some 5 per cent on the net income of persons engaged in industrial and commercial pursuits and on the income of owners of improved city property. The sale of stamped paper and adhesive stamp tax. The cedula tax was a graduated tax, ranging from nothing up to P37.50. The revenue derived from the sale of the public domain was not considered a tax. The American authorities at once abolished the cedula tax, but later restored it in a modified form, charging for each cedula twenty centavos, an amount which was supposed to be just sufficient to cover the cost of issuance. The urbana tax was abolished by Act No. 223, effective September 6, 1901. The Municipal Code (Act No. 82) and the Provincial Government Act (No. 83), both enacted in 1901, authorize municipal councils and provincial boards to impose an ad valorem tax on real estate. The Municipal Code did not apply to the city of Manila. This city was given a special charter (Act No. 183), effective August 30, 1901; Under this charter the Municipal Board of Manila is authorized and empowered to impose taxes upon real estate and, like municipal councils, to license and regulate certain occupations. Customs matters were completely reorganized by

Act No. 355, effective at the port of Manila on February 7, 1902, and at other ports in the Philippine Islands the day after the receipt of a certified copy of the Act. The Internal Revenue Law of 1904 (Act No. 1189), repealed all existing laws, ordinances, etc., imposing taxes upon the persons, objects, or occupations taxed under that act, and all industrial taxes and stamp taxes imposed under the Spanish regime were eliminated, but the industrial tax was continued in force until January 1, 1905. This Internal Revenue Law did not take away from municipal councils, provincial boards, and the Municipal Board of the city of Manila the power to impose taxes upon real estate. This Act (No. 1189), with its amendments, was repealed by Act No. 2339, an act revising and consolidating the laws relative to internal revenue. Section 84 of Act No. 82 provides that No court shall entertain any suit assailing the validity of a tax assessed under this act until the taxpayer shall have paid, under protest, the taxes assessed against him, . . . . This inhibition was inserted in section 17 of Act No. 83 and applies to taxes imposed by provincial boards. The inhibition was not inserted in the Manila Charter until the passage of Act No. 1793, effective October 12, 1907. Act No. 355 expressly makes the payment of the exactions claimed a condition precedent to a resort to the courts by dissatisfied importers. Section 52 of Act No. 1189 provides That no courts shall have authority to grant an injunction restraining the collection of any taxes imposed by virtue of the provisions of this Act, but the remedy of the taxpayer who claims that he is unjustly assessed or taxed shall be by payment under protest of the sum claimed from him by the Collector of Internal Revenue and by action to recover back the sum claimed to have been illegally collected. Sections 139 and 140 of Act No. 2339 contain, as we have indicated, the same prohibition and remedy. The result is that the courts have been expressly forbidden, in every act creating or imposing taxes or imposts enacted by the legislative body of the Philippines since the American occupation, to entertain any suit assailing the validity of any tax or impost thus imposed until the tax shall have been paid under protest. The only taxes which have not been brought within the express inhibition were those included in that part of the old Spanish system which completely disappeared on or before January 1, 1905, and possibly the old customs duties which disappeared in February, 1902. Section 56 of the Organic Act (No. 136), effective June 16, 1901, provides that Courts of First Instance shall have original jurisdiction: 2. In all civil actions which involve the legality of any tax, impost, or assessment, . . . . 7. Said courts and their judges, or any of them, shall have power to issue writs of injunction, mandamus, certiorari, prohibition, quo warranto, and habeas corpus in their respective provinces and districts, in the manner provided in the Code of Civil Procedure. The provisions of the Code of Civil Procedure (Act No. 190), effective October 1, 1901, which deals with the subject of injunctions, are sections 162 to 172, inclusive. Injunctions, as here defined, are of two kinds; preliminary and final. The former may be granted at any time after the commencement of the action and before final judgment, and the latter at the termination of the trial as the relief or part of the relief prayed for (sec. 162). Any judge of the Supreme Court may grant a preliminary injunction in any action pending in that court or in any Court of First Instance. A preliminary injunction may also be granted by a judge of the Court of First Instance in actions pending in his district in which he has original jurisdiction (sec. 163). But such injunctions may be granted only when the complaint shows facts entitling the plaintiff to the relief demanded (sec. 166), and before a final or permanent injunction can be granted, it must appear upon the trial of the action that the plaintiff is entitled to have commission or continuance of the acts complained of perpetually restrained (sec. 171). These provisions authorize the institution in Courts of First Instance of what are known as injunction suits, the sole object of which is to obtain the issuance of a final injunction. They also authorize the granting of injunctions as aiders in ordinary civil actions. We have defined in Davesa vs. Arbes (13 Phil. Rep., 273), an injunction to be A special remedy adopted in that code (Act 190) from American practice, and originally borrowed from English legal procedure, which was there issued by the authority and under the seal of a court of equity, and limited, as in other cases where equitable relief is sought, to those cases where there is no plain, adequate, and complete remedy at law,which will not be granted while the

rights between the parties are undetermined, except in extraordinary cases where material and irreparable injury will be done,which cannot be compensated in damages . . . By paragraph 2 of section 56 of Act No. 136, supra, and the provisions of the various subsequent Acts heretofore mentioned, the Insular Government has consented to litigate with aggrieved persons the validity of any original tax or impost imposed by it on condition that this be done in ordinary civil actions after the taxes or exactions shall have been paid. But it is said that paragraph 2 confers original jurisdiction upon Courts of First Instance to hear and determine all civil actions which involve the validity of any tax, impost or assessment, and that if the all-inclusive words all and any be given their natural and unrestricted meaning, no action wherein that question is involved can arise over which such courts do not have jurisdiction. (Barrameda vs. Moir, 25 Phil. Rep., 44.) This is true. But the term civil actions had its well defined meaning at the time the paragraph was enacted. The same legislative body which enacted paragraph 2 on June 16, 1901, had, just a few months prior to that time, defined the only kind of action in which the legality of any tax imposed by it might be assailed. (Sec. 84, Act 82, enacted January 31, 1901, and sec. 17, Act No. 83, enacted February 6, 1901.) That kind of action being payment of the tax under protest and an ordinary suit to recover and no other, there can be no doubt that Courts of First Instance have jurisdiction over all such actions. The subsequent legislation on the same subject shows clearly that the Commission, in enacting paragraph 2, supra, did not intend to change or modify in any way section 84 of Act No. 82 and section 17 of Act No. 83, but, on the contrary, it was intended that civil actions, mentioned in said paragraph, should be understood to mean, in so far as testing the legality of taxes were concerned, only those of the kind and character provided for in the two sections above mentioned. It is also urged that the power to restrain by injunction the collection of taxes or imposts is conferred upon Courts of First Instance by paragraph 7 of section 56, supra. This paragraph does empower those courts to grant injunctions, both preliminary and final, in any civil action pending in their districts, provided always, that the complaint shows facts entitling the plaintiff to the relief demanded. Injunction suits, such as the one at bar, are civil actions, but of a special or extraordinary character. It cannot be said that the Commission intended to give a broader or different meaning to the word action, used in Chapter 9 of the Code of Civil Procedure in connection with injunctions, than it gave to the same word found in paragraph 2 of section 56 of the Organic Act. The Insular Government, in exercising the power conferred upon it by the Congress of the United States, has declared that the citizens and residents of this country shall pay certain specified taxes and imposts. The power to tax necessarily carries with it the power to collect the taxes. This being true, the weight of authority supports the proposition that the Government may fix the conditions upon which it will consent to litigate the validity of its original taxes. (Tennessee vs. Sneed, 96 U.S., 69.) We must, therefore, conclude that paragraph 2 and 7 of section 56 of Act No. 136, construed in the light of the prior and subsequent legislation to which we have referred, and the legislative and judicial history of the same subject in the United States with which the Commission was familiar, do not empower Courts of firs Instance to interfere by injunction with the collection of the taxes in question in this case. If we are in error as to the scope of paragraph 2 and 7, supra, and the Commission did intend to confer the power upon the courts to restrain the collection of taxes, it does not necessarily follow that this power or jurisdiction has been taken away by section 139 of Act No. 2339, for the reason that all agree that an injunction will not issue in any case if there is an adequate remedy at law. The very nature of the writ itself prevents its issuance under such circumstances. Legislation forbidding the issuing of injunctions in such cases is unnecessary. So the only question to be here determined is whether the remedy provided for in section 140 of Act No. 2339 is adequate. If it is, the writs which form the basis of this appeal should not have been issued. If this is the correct view, the authority to issue injunctions will not have been taken away by section 139, but rendered inoperative only by reason of an adequate remedy having been made available. The legislative body of the Philippine Islands has declared from the beginning (Act No. 82) that payment under protest and suit to recover is an adequate remedy to test the legality of any tax or impost, and that this remedy is exclusive. Can we say that the remedy is not adequate or that it is not exclusive, or both? The plaintiffs in the case at bar are the first, in so far as we are aware, to question either the adequacy or exclusiveness of this remedy. We will refer to a few cases in the United States where statutes similar to sections 139 and 140 have been construed and applied.

In May, 1874, one Bloomstein presented a petition to the circuit court sitting in Nashville, Tennessee, stating that his real and personal property had been assessed for state taxes in the year 1872 to the amount of $132.60; that he tendered to the collector this amount in funds receivable by law for such purposes; and that the collector refused to receive the same. He prayed for an alternative writ of mandamus to compel the collector to receive the bills in payment for such taxes, or to show cause to the contrary. To this petition the collector, in his answer, set up the defense that the petitioners suit was expressly prohibited by the Act of the General Assembly of the State of Tennessee, passed in 1873. The petition was dismissed and the relief prayed for refused. An appeal to the supreme court of the State resulted in the affirmance of the judgment of the lower court. The case was then carried to the Supreme Court of the United States (Tennessee vs. Sneed, 96 U. S., 69), where the judgment was again affirmed. The two sections of the Act of [March 21,] 1873, drawn in question in that cases, read as follows: 1. That in all cases in which an officer, charged by law with the collection of revenue due the State, shall institute any proceeding, or take any steps for the collection of the same, alleged or claimed to be due by said officer from any citizen, the party against whom the proceeding or step is taken shall, if he conceives the same to be unjust or illegal, or against any statute or clause of the Constitution of the State, pay the same under protest; and, upon his making said payment, the officer or collector shall pay such revenue into the State Treasury, giving notice at the time of payment to the Comptroller that the same was paid under protest; and the party paying said revenue may, at any time within thirty days after making said payment, and not longer thereafter, sue the said officer having collected said sum, for the recovery thereof. And the same may be tried in any court having the jurisdiction of the amount and parties; and, if it be determined that the same was wrongfully collected, as not being due from said party to the State, for any reason going to the merits of the same, then the court trying the case may certify of record that the same was wrongfully paid and ought to be refunded; and thereupon the Comptroller shall issue his warrant for the same, which shall be paid in preference to other claims on the Treasury. 2. That there shall be no other remedy, in any case of the collection of revenue, or attempt to collect revenue illegally, or attempt to collect revenue in funds only receivable by said officer under the law, the same being other or different funds than such as the tax payer may tender, or claim the right to pay, than that above provided; and no writ for the prevention of the collection of any revenue claimed, or to hinder or delay the collection of the same, shall in anywise issue, either injunction, supersedeas, prohibition, or any other writ or process whatever; but in all cases in which, for any reason, any person shall claim that the tax so collected was wrongfully or illegally collected, the remedy for said party shall be as above provided, and in no other manner. In discussing the adequacy of the remedy provided by the Tennessee Legislature, as above set forth, the Supreme Court of the United States, in the case just cited, said: This remedy is simple and effective. A suit at law to recover money unlawfully exacted is as speedy, as easily tried, and less complicated than a proceeding by mandamus. In revenue cases, whether arising upon its (United States) Internal Revenue Laws or those providing for the collection of duties upon foreign imports, it (United States) adopts the rule prescribed by the State of Tennessee. It requires the contestant to pay the amount as fixed by the Government, and gives him power to sue the collector, and in such suit to test the legality of the tax. There is nothing illegal or even harsh in this. It is a wise and reasonable precaution for the security of the Government. Thomas C. Platt commenced an action in the Circuit Court of the United States for the Eastern District of Tennessee to restrain the collection of a license tax from the company which he represented. The defense was that sections 1 and 2 of the Act of 1873, supra, prohibited the bringing of that suit. This case also reached the Supreme Court of the United States. (Shelton vs. Platt, 139 U. 591.) In speaking of the inhibitory provisions of sections 1 and 2 of the Act of 1873, the court said: This Act has been sanctioned and applied by the Courts of Tennessee. (Nashville vs. Smith, 86 Tenn., 213; Louisville & N. R. Co. vs. State, 8 Heisk., 663, 804.) It is, as counsel observe, similar to the Act of Congress forbidding suit for the purpose of restraining the assessment or collection of taxes under the Internal Revenue Laws, in respect to which this court held that the remedy by suit to recover back the tax after payment, provided for by the Statute, was exclusive. (Snyder vs. Marks, of this character has been called for by the embarrassments resulting from the improvident employment of the writ of injunction in arresting the collection of the public revenue; and, even in its absence, the strong arm of the court of chancery ought not to be interposed in that direction except where resort to that court is grounded upon the settled principles which govern its jurisdiction.

In Louisville & N.R. Co. vs. State (8 Heisk. [64 Tenn.], 663, 804), cited by the Supreme Court of the United States in Shelton vs. Platt, supra, the court said: It was urged that this statute (sections 1 and 2 of the Act of 1873, supra) is unconstitutional and void, as it deprives the citizen of the remedy by certiorari, guaranteed by the organic law. By the 10th section of the sixth article of the Constitution, [Tennessee] it is provided that: The judges or justices of inferior courts of law and equity shall have power in all civil cases to issue writs of certiorari, to remove any cause, or the transcript of the record thereof, from any inferior jurisdiction into such court of law, on sufficient cause, supported by oath or affirmation. The court held the act valid as not being in conflict with these provisions of the State constitution. In Eddy vs. The Township of Lee (73 Mich., 123), the complainants sought to enjoin the collection of certain taxes for the year 1886. The defendants, in support of their demurrer, insisted that the remedy by injunction had been taken away by section 107 of the Act of 1885, which section reads as follows: No injunction shall issue to stay proceedings for the assessment or collection of taxes under this Act. It was claimed by the complainants that the above quoted provisions of the Act of 1885 were unconstitutional and void as being in conflict with article 6, sec. 8, of the Constitution, which provides that: The circuit courts shall have original jurisdiction in all matters, civil and criminal, not excepted in this Constitution, and not prohibited by law. They shall also have power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, and other writs necessary to carry into effect their orders, judgments, and decrees. Mr. Justice Champlin, speaking for the court, said: I have no doubt that the Legislature has the constitutional authority, where it has provided a plain, adequate, and complete remedy at law to recover back taxes illegally assessed and collected, to take away the remedy by injunction to restrain their collection. Section 9 of the Philippine Bill reads in part as follows: That the Supreme Court and the Courts of First Instance of the Philippine Islands shall possess and exercise jurisdiction as heretofore provided and such additional jurisdiction as shall hereafter be prescribed by the Government of said Islands, subject to the power of said Government to change the practice and method of procedure. It will be seen that this section has not taken away from the Philippine Government the power to change the practice and method of procedure. If sections 139 and 140, considered together, and this must always be done, are nothing more than a mode of procedure, then it would seem that the Legislature did not exceed its constitutional authority in enacting them. Conceding for the moment that the duly authorized procedure for the determination of the validity of any tax, impost, or assessment was by injunction suits and that this method was available to aggrieved taxpayers prior to the passage of Act No. 2339, may the Legislature change this method of procedure? That the Legislature has the power to do this, there can be no doubt, provided some other adequate remedy is substituted in lieu thereof. In speaking of the modes of enforcing rights created by contracts, the Supreme Court of the United States, in Tennessee vs. Sneed, supra, said: The rule seems to be that in modes of proceedings and of forms to enforce the contract the Legislature has the control, and may enlarge, limit or alter them, provided that it does not deny a remedy, or so embarrass it with conditions and restrictions as seriously to impair the value of the right. In that case the petitioner urged that the Acts of 1873 were laws impairing the obligation of the contract contained in the charter of the Bank of Tennessee, which contract was entered into with the State in 1838. It was claimed that this was done by placing such impediments and obstructions in the way of its enforcement, thereby so impairing the remedies as practically to render the obligation of no value. In disposing of this contention, the court said: If we assume that prior to 1873 the relator had authority to prosecute his claim against the State by mandamus, and that by the statutes of that year the further use of that form was prohibited to him, the question remains. whether an effectual remedy was left to him or provided for him. We think the regulation of the statute gave him an abundant means of enforcing such right as he possessed. It provided that he might pay his claim to the collector under protest, giving notice thereof to the Comptroller of the Treasury; that at any time within thirty days thereafter he might sue the officer making the collection; that the case should be tried by any court having jurisdiction and, if found in favor of the plaintiff on the merits, the court should certify that the same was wrongfully paid and ought to be refunded and

the Comptroller should thereupon issue his warrant therefor, which should be paid in preference to other claim on the Treasury. But great stress is laid upon the fact that the plaintiffs in the case under consideration are unable to pay the taxes assessed against them and that if the law is enforced, they will be compelled to suspend business. This point may be best answered by quoting from the case of Youngblood vs. Sexton (32 Mich., 406), wherein Judge Cooley, speaking for the court, said: But if this consideration is sufficient to justify the transfer of a controversy from a court of law to a court of equity, then every controversy where money is demanded may be made the subject of equitable cognizance. To enforce against a dealer a promissory note may in some cases as effectually break up his business as to collect from him a tax of equal amount. This is not what is known to the law as irreparable injury. The courts have never recognized the consequences of the mere enforcement of a money demand as falling within that category. Certain specified sections of Act No. 2339 were amended by Act No. 2432, enacted December 23, 1914, effective January 1, 1915, by imposing increased and additional taxes. Act No. 2432 was amended, were ratified by the Congress of the United States on March 4, 1915. The opposition manifested against the taxes imposed by Acts Nos. 2339 and 2432 is a matter of local history. A great many business men thought the taxes thus imposed were too high. If the collection of the new taxes on signs, signboards, and billboards may be restrained, we see no wellfounded reason why injunctions cannot be granted restraining the collection of all or at least a number of the other increased taxes. The fact that this may be done, shows the wisdom of the Legislature in denying the use of the writ of injunction to restrain the collection of any tax imposed by the Acts. When this was done, an equitable remedy was made available to all dissatisfied taxpayers. The question now arises whether, the case being one of which the court below had no jurisdiction, this court, on appeal, shall proceed to express an opinion upon the validity of provisions of subsection (b) of section 100 of Act No. 2339, imposing the taxes complained of. As a general rule, an opinion on the merits of a controversy ought to be declined when the court is powerless to give the relief demanded. But it is claimed that this case is, in many particulars, exceptional. It is true that it has been argued on the merits, and there is no reason for any suggestion or suspicion that it is not a bona fide controversy. The legal points involved in the merits have been presented with force, clearness, and great ability by the learned counsel of both sides. If the law assailed were still in force, we would feel that an opinion on its validity would be justifiable, but, as the amendment became effective on January 1, 1915, we think it advisable to proceed no further with this branch of the case. The next question arises in connection with the supplementary complaint, the object of which is to enjoin the Collector of Internal Revenue from removing certain billboards, the property of the plaintiffs located upon private lands in the Province of Rizal. The plaintiffs allege that the billboards here in question in no sense constitute a nuisance and are not deleterious to the health, morals, or general welfare of the community, or of any persons. The defendant denies these allegations in his answer and claims that after due investigation made upon the complaints of the British and German Consuls, he decided that the billboard complained of was and still is offensive to the sight, and is otherwise a nuisance. The plaintiffs proved by Mr. Churchill that the billboards were quite a distance from the road and that they were strongly built, not dangerous to the safety of the people, and contained no advertising matter which is filthy, indecent, or deleterious to the morals of the community. The defendant presented no testimony upon this point. In the agreed statement of facts submitted by the parties, the plaintiffs admit that the billboards mentioned were and still are offensive to the sight. The pertinent provisions of subsection (b) of section 100 of Act No. 2339 read: If after due investigation the Collector of Internal Revenue shall decide that any sign, signboard, or billboard displayed or exposed to public view is offensive to the sight or is otherwise a nuisance, he may by summary order direct the removal of such sign, signboard, or billboard, and if same is not removed within ten days after he has issued such order he my himself cause its removal, and the sign, signboard, or billboard shall thereupon be forfeited to the Government, and the owner thereof charged with the expenses of the removal so effected. When the sign, signboard, or billboard ordered to be removed as herein provided shall not comply with the provisions of the general regulations of the Collector of Internal Revenue, no rebate or refund shall be allowed for any portion of a year for which the tax may have been paid. Otherwise, the Collector of Internal Revenue may in his discretion make a proportionate refund of the tax for the portion of the year remaining for which the taxes were paid. An appeal may be had from the order of the Collector of Internal Revenue to the Secretary of Finance and Justice whose decision thereon shall be final.

The Attorney-General, on behalf of the defendant, says: The question which the case presents under this head for determination, resolves itself into this inquiry: Is the suppression of advertising signs displayed or exposed to public view, which are admittedly offensive to the sight, conducive to the public interest? And cunsel for the plaintiffs states the question thus: We contend that that portion of section 100 of Act No. 2339, empowering the Collector of Internal Revenue to remove billboards as nuisances, if objectionable to the sight, is unconstitutional, as constituting a deprivation of property without due process of law. From the position taken by counsel for both sides, it is clear that our inquiry is limited to the question whether the enactment assailed by the plaintiffs was a legitimate exercise of the police power of the Government; for all property is held subject to that power. As a consequence of the foregoing, all discussion and authorities cited, which go to the power of the state to authorize administrative officers to find, as a fact, that legitimate trades, callings, and businesses are, under certain circumstances, statutory nuisances, and whether the procedure prescribed for this purpose is due process of law, are foreign to the issue here presented. There can be no doubt that the exercise of the police power of the Philippine Government belongs to the Legislature and that this power is limited only by the Acts of Congress and those fundamentals principles which lie at the foundation of all republican forms of government. An Act of the Legislature which is obviously and undoubtedly foreign to any of the purposes of the police power and interferes with the ordinary enjoyment of property would, without doubt, be held to be invalid. But where the Act is reasonably within a proper consideration of and care for the public health, safety, or comfort, it should not be disturbed by the courts. The courts cannot substitute their own views for what is proper in the premises for those of the Legislature. In Munn vs. Illinois (94 U.S., 113), the United States Supreme Court states the rule thus: If no state of circumstances could exist to justify such statute, then we may declare this one void because in excess of the legislative power of this state; but if it could, we must presume it did. Of the propriety of legislative interference, within the scope of the legislative power, a legislature is the exclusive judge. This rule very fully discussed and declared in Powell vs. Pennsylvania (127 U.S., 678) oleo-margarine case. (See also Crowley vs. Christensen, 137 U.S., 86, 87; Camfield vs. U.S., 167 U.S., 518.) While the state may interfere wherever the public interests demand it, and in this particular a large discretion is necessarily vested in the legislature to determine, not only what the interest of the public require, but what measures are necessary for the protection of such interests; yet, its determination in these matters is not final or conclusive, but is subject to the supervision of the courts. (Lawton vs. Steele, 152 U.S., 133.) Can it be said judicially that signs, signboards, and billboards, which are admittedly offensive to the sight, are not with the category of things which interfere with the public safety, welfare, and comfort, and therefore beyond the reach of the police power of the Philippine Government? The numerous attempts which have been made to limit by definition the scope of the police power are only interesting as illustrating its rapid extension within comparatively recent years to points heretofore deemed entirely within the field of private liberty and property rights. Blackstones definition of the police power was as follows: The due regulation and domestic order of the kingdom, whereby the individuals of the state, like members of a well governed family, are bound to conform their general behavior to the rules of propriety, good neigborhood, and good manners, to be decent, industrious, and inoffensive in their respective stations. (Commentaries, vol. 4, p. 162.) Chanceller Kent considered the police power the authority of the state to regulate unwholesome trades, slaughter houses, operations offensive to the senses. Chief Justice Shaw of Massachusetts defined it as follows: The power vested in the legislature by the constitution to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same. (Com. vs. Alger, 7 Cush., 53.)

In the case of Butchers Union Slaughter-house, etc. Co. vs. Crescent City Live Stock Landing, etc. Co. (111 U.S., 746), it was suggested that the public health and public morals are matters of legislative concern of which the legislature cannot divest itself. (See State vs. Mountain Timber Co. [1913], 75 Wash., 581, where these definitions are collated.) In Champer vs. Greencastle (138 Ind., 339), it was said: The police power of the State, so far, has not received a full and complete definition. It may be said, however, to be the right of the State, or state functionary, to prescribe regulations for the good order, peace, health, protection, comfort, convenience and morals of the community, which do not violate any of the provisions of the organic law. (Quoted with approval in Hopkins vs. Richmond [Va., 1915], 86 S.E., 139.) In Com. vs. Plymouth Coal Co. ([1911] 232 Pa., 141), it was said: The police power of the state is difficult of definition, but it has been held by the courts to be the right to prescribe regulations for the good order, peace, health, protection, comfort, convenience and morals of the community, which does not encroach on a like power vested in congress or state legislatures by the federal constitution, or does not violate the provisions of the organic law; and it has been expressly held that the fourteenth amendment to the federal constitution was not designed to interfere with the exercise of that power by the state. In People vs. Brazee ([Mich., 1914], 149 N.W., 1053), it was said: It [the police power] has for its object the improvement of social and economic conditioned affecting the community at large and collectively with a view to bring about he greatest good of the greatest number.Courts have consistently and wisely declined to set any fixed limitations upon subjects calling for the exercise of this power. It is elastic and is exercised from time to time as varying social conditions demand correction. In 8 Cyc., 863, it is said: Police power is the name given to that inherent sovereignty which it is the right and duty of the government or its agents to exercise whenever public policy, in a broad sense, demands, for the benefit of society at large, regulations to guard its morals, safety, health, order or to insure in any respect such economic conditions as an advancing civilization of a high complex character requires. (As quoted with approval in Stettler vs. OHara [1914], 69 Ore, 519.) Finally, the Supreme Court of the United States has said in Noble State Bank vs. Haskell (219 U.S. [1911], 575: It may be said in a general way that the police power extends to all the great public needs. It may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare. This statement, recent as it is, has been quoted with approval by several courts. (Cunningham vs. Northwestern Imp. Co. [1911], 44 Mont., 180; State vs. Mountain Timber Co. [1913], 75 Wash., 581; McDavid vs. Bank of Bay Minette [Ala., 1915], 69 Sou., 452; Hopkins vs. City of Richmond [Va., 1915], 86 S.E., 139; State vs. Philipps [Miss. 1915], 67 Sou., 651.) It was said in Com. vs. Alger (7 Cush., 53, 85), per Shaw, C.J., that: It is much easier to perceive and realize the existence and sources of this police power than to mark its boundaries, or to prescribe limits to its exercise. In Stone vs. Mississippi (101 U.S., 814), it was said: Many attempts have been made in this court and elsewhere to define the police power, but never with entire success. It is always easier to determine whether a particular case comes within the general scope of the power, than to give an abstract definition of the power itself, which will be in all respects accurate. Other courts have held the same vow of efforts to evolve a satisfactory definition of the police power. Manifestly, definitions which fail to anticipate cases properly within the scope of the police power are deficient. It is necessary, therefore, to confine our discussion to the principle involved and determine whether the cases as they come up are within that principle. The basic idea of civil polity in the United States is that government should interfere with individual effort only to the extent necessary to preserve a healthy social and economic condition of the country. State interference with the use of private property may be exercised in three ways. First, through the power of taxation, second, through the power of eminent domain, and third, through the police power. Buy the first method it

is assumed that the individual receives the equivalent of the tax in the form of protection and benefit he receives from the government as such. By the second method he receives the market value of the property taken from him. But under the third method the benefits he derived are only such as may arise from the maintenance of a healthy economic standard of society and is often referred to as damnum absque injuria. (Com. vs. Plymouth Coal Co. 232 Pa., 141; Bemis vs. Guirl Drainage Co., 182 Ind., 36.) There was a time when state interference with the use of private property under the guise of the police power was practically confined to the suppression of common nuisances. At the present day, however, industry is organized along lines which make it possible for large combinations of capital to profit at the expense of the socio-economic progress of the nation by controlling prices and dictating to industrial workers wages and conditions of labor. Not only this but the universal use of mechanical contrivances by producers and common carriers has enormously increased the toll of human life and limb in the production and distribution of consumption goods. To the extent that these businesses affect not only the public health, safety, and morals, but also the general social and economic life of the nation, it has been and will continue to be necessary for the state to interfere by regulation. By so doing, it is true that the enjoyment of private property is interfered with in no small degree and in ways that would have been considered entirely unnecessary in years gone by. The regulation of rates charged by common carriers, for instance, or the limitation of hours of work in industrial establishments have only a very indirect bearing upon the public health, safety, and morals, but do bear directly upon social and economic conditions. To permit each individual unit of society to feel that his industry will bring a fair return; to see that his work shall be done under conditions that will not either immediately or eventually ruin his health; to prevent the artificial inflation of prices of the things which are necessary for his physical well being are matters which the individual is no longer capable of attending to himself. It is within the province of the police power to render assistance to the people to the extent that may be necessary to safeguard these rights. Hence, laws providing for the regulation of wages and hours of labor of coal miners (Rail & River Coal Co. vs. Taylor, 234 U.S., 224); requiring payment of employees of railroads and other industrial concerns in legal tender and requiring salaries to be paid semimonthly (Erie R.R. Co. vs. Williams, 233 U.S., 685); providing a maximum number of hours of labor for women (Miller vs. Wilson, U.S. Sup. Ct. [Feb. 23, 1915], Adv. Opns., p. 342); prohibiting child labor (Sturges & Burn vs. Beauchamp, 231 U.S., 320); restricting the hours of labor in public laundries (In re Wong Wing, 167 Cal., 109); limiting hours of labor in industrial establishment generally (State vs. Bunting, 71 Ore., 259); Sunday Closing Laws (State vs. Nicholls [Ore., 1915], 151 Pac., 473; People vs. C. Klinck Packing Co. [N.Y., 1915], 108 N. E., 278; Hiller vs. State [Md., 1914], 92 Atl., 842; State vs. Penny, 42 Mont., 118; City of Springfield vs. Richter, 257 Ill., 578, 580; State vs. Hondros [S.C., 1915], 84 S.E., 781); have all been upheld as a valid exercise of the police power. Again, workmens compensation laws have been quite generally upheld. These statutes discard the common law theory that employers are not liable for industrial accidents and make them responsible for all accidents resulting from trade risks, it being considered that such accidents are a legitimate charge against production and that the employer by controlling the prices of his product may shift the burden to the community. Laws requiring state banks to join in establishing a depositors guarantee fund have also been upheld by the Federal Supreme Court in Noble State Bank vs. Haskell (219 U. S., 104), and Assaria State Bank vs. Dolley (219 U.S., 121). Offensive noises and smells have been for a long time considered susceptible of suppression in thickly populated districts. Barring livery stables from such locations was approved of in Reinman vs. Little Rock (U.S. Sup. Ct. [Apr. 5, 1915], U.S. Adv. Opns., p. 511). And a municipal ordinance was recently upheld (People vs. Ericsson, 263 Ill., 368), which prohibited the location of garages within two hundred feet of any hospital, church, or school, or in any block used exclusively for residential purposes, unless the consent of the majority of the property owners be obtained. Such statutes as these are usually upheld on the theory of safeguarding the public health. But we apprehend that in point of fact they have little bearing upon the health of the normal person, but a great deal to do with his physical comfort and convenience and not a little to do with his peace of mind. Without entering into the realm of psychology, we think it quite demonstrable that sight is as valuable to a human being as any of his other senses, and that the proper ministration to this sense conduces as much to his contentment as the care bestowed upon the senses of hearing or smell, and probably as much as both together. Objects may be offensive to the eye as well as to the nose or ear. Mans esthetic feelings are constantly being appealed to through his sense of sight. Large investments have been made in theaters and other forms of amusement, in paintings and spectacular displays, the success of which depends in great part upon the appeal made through the sense of sight. Moving picture shows could not possible without the sense of sight. Governments have spent millions on parks and boulevards and other forms of civic beauty, the first aim of which is to appeal to the sense of sight. Why, then, should the Government not interpose to protect from annoyance this most valuable of mans senses as readily as to protect him from offensive noises and smells?

The advertising industry is a legitimate one. It is at the same time a cause and an effect of the great industrial age through which the world is now passing. Millions are spent each year in this manner to guide the consumer to the articles which he needs. The sense of sight is the primary essential to advertising success. Billboard advertising, as it is now conducted, is a comparatively recent form of advertising. It is conducted out of doors and along the arteries of travel, and compels attention by the strategic locations of the boards, which obstruct the range of vision at points where travelers are most likely to direct their eyes. Beautiful landscapes are marred or may not be seen at all by the traveler because of the gaudy array of posters announcing a particular kind of breakfast food, or underwear, the coming of a circus, an incomparable soap, nostrums or medicines for the curing of all the ills to which the flesh is heir, etc. It is quite natural for people to protest against this indiscriminate and wholesale use of the landscape by advertisers and the intrusion of tradesmen upon their hours of leisure and relaxation from work. Outdoor life must lose much of its charm and pleasure if this form of advertising is permitted to continue unhampered until it converts the streets and highways into veritable canyons through which the world must travel in going to work or in search of outdoor pleasure. The success of billboard advertising depends not so much upon the use of private property as it does upon the use of the channels of travel used by the general public. Suppose that the owner of private property, who so vigorously objects to the restriction of this form of advertising, should require the advertiser to paste his posters upon the billboards so that they would face the interior of the property instead of the exterior. Billboard advertising would die a natural death if this were done, and its real dependency not upon the unrestricted use of private property but upon the unrestricted use of the public highways is at once apparent. Ostensibly located on private property, the real and sole value of the billboard is its proximity to the public thoroughfares. Hence, we conceive that the regulation of billboards and their restriction is not so much a regulation of private property as it is a regulation of the use of the streets and other public thoroughfares. We would not be understood as saying that billboard advertising is not a legitimate business any more than we would say that a livery stable or an automobile garage is not. Even a billboard is more sightly than piles of rubbish or an open sewer. But all these businesses are offensive to the senses under certain conditions. It has been urged against ministering to the sense of sight that tastes are so diversified that there is no safe standard of legislation in this direction. We answer in the language of the Supreme Court in Noble State Bank vs. Haskell (219 U.S., 104), and which has already been adopted by several state courts (see supra), that the prevailing morality or strong and preponderating opinion demands such legislation. The agitation against the unrestrained development of the billboard business has produced results in nearly all the countries of Europe. (Ency. Britannica, vol. 1, pp. 237-240.) Many drastic ordinances and state laws have been passed in the United States seeking to make the business amenable to regulation. But their regulation in the United states is hampered by what we conceive an unwarranted restriction upon the scope of the police power by the courts. If the police power may be exercised to encourage a healthy social and economic condition in the country, and if the comfort and convenience of the people are included within those subjects, everything which encroaches upon such territory is amenable to the police power. A source of annoyance and irritation to the public does not minister to the comfort and convenience of the public. And we are of the opinion that the prevailing sentiment is manifestly against the erection of billboards which are offensive to the sight. We do not consider that we are in conflict with the decision in Eubank vs. Richmond (226 U.S., 137), where a municipal ordinance establishing a building line to which property owners must conform was held unconstitutional. As we have pointed out, billboard advertising is not so much a use of private property as it is a use of the public thoroughfares. It derives its value to the power solely because the posters are exposed to the public gaze. It may well be that the state may not require private property owners to conform to a building line, but may prescribe the conditions under which they shall make use of the adjoining streets and highways. Nor is the law in question to be held invalid as denying equal protection of the laws. In Keokee Coke Co. vs. Taylor (234 U.S., 224), it was said: It is more pressed that the act discriminates unconstitutionally against certain classes. But while there are differences of opinion as to the degree and kind of discrimination permitted by the Fourteenth Amendment, it is established by repeated decisions that a statute aimed at what is deemed an evil, and hitting it presumably where experience shows it to be most felt, is not to be upset by thinking up and enumerating other instances to which it might have been applied equally well, so far as the court can see. That is for the legislature to judge unless the case is very clear.

But we have not overlooked the fact that we are not in harmony with the highest courts of a number of the states in the American Union upon this point. Those courts being of the opinion that statutes which are prompted and inspired by esthetic considerations merely, having for their sole purpose the promotion and gratification of the esthetic sense, and not the promotion or protection of the public safety, the public peace and good order of society, must be held invalid and contrary to constitutional provisions holding inviolate the rights of private property. Or, in other words, the police power cannot interfere with private property rights for purely esthetic purposes. The courts, taking this view, rest their decisions upon the proposition that the esthetic sense is disassociated entirely from any relation to the public health, morals, comfort, or general welfare and is, therefore, beyond the police power of the state. But we are of the opinion, as above indicated, that unsightly advertisements or signs, signboards, or billboards which are offensive to the sight, are not disassociated from the general welfare of the public. This is not establishing a new principle, but carrying a well recognized principle to further application. (Fruend on Police Power, p. 166.) For the foregoing reasons the judgment appealed from is hereby reversed and the action dismissed upon the merits, with costs. So ordered. Arellano, C.J., Torres, Carson, and Araullo, JJ., concur. DECISION ON THE MOTION FOR A REHEARING, JANUARY 24, 1916. TRENT, J.: Counsel for the plaintiffs call our attention to the case of Ex parte Young (209 U.S., 123); and say that they are of the opinion that this case is the absolutely determinative of the question of jurisdiction in injunctions of this kind. We did not refer to this case in our former opinion because we were satisfied that the reasoning of the case is not applicable to section 100 (b), 139 and 140 of Act No. 2339. The principles announced in the Young case are stated as follows: It may therefore be said that when the penalties for disobedience are by fines so enormous and imprisonment so severe as to intimidate the company and its officers from resorting to the courts to test the validity of the legislation, the result is the same as if the law in terms prohibited the company from seeking judicial construction of laws which deeply affect its rights. It is urged that there is no principle upon which to base the claim that a person is entitled to disobey a statute at least once, for the purpose of testing its validity without subjecting himself to the penalties for disobedience provided by the statute in case it is valid. This is not an accurate statement of the case. Ordinarily a law creating offenses in the nature of misdemeanors or felonies relates to a subject over which the jurisdiction of the legislature is complete in any event. In these case, however, of the establishment of certain rates without any hearing, the validity of such rates necessarily depends upon whether they are high enough to permit at least some return upon the investment (how much it is not now necessary to state), and an inquiry as to that fact is a proper subject of judicial investigation. If it turns out that the rates are too low for that purpose, then they are illegal. Now, to impose upon a party interested the burden of obtaining a judicial decision of such a question (no prior hearing having ever been given) only upon the condition that, if unsuccessful, he must suffer imprisonment and pay fines as provided in these acts, is, in effect, to close up all approaches to the courts, and thus prevent any hearing upon the question whether the rates as provided by the acts are not too low, and therefore invalid. The distinction is obvious between a case where the validity of the acts depends upon the existence of a fact which can be determined only after investigation of a very complicated and technical character, and the ordinary case of a statute upon a subject requiring no such investigation and over which the jurisdiction of the legislature is complete in any event. An examination of the sections of our Internal Revenue Law and of the circumstances under which and the purposes for which they were enacted, will show that, unlike the statutes under consideration in the above cited case, their enactment involved no attempt on the part of the Legislature to prevent dissatisfied taxpayers from resorting to the courts to test the validity of the legislation; no effort to prevent any inquiry as to their validity. While section 139 does prevent the testing of the validity of subsection (b) of section 100 in injunction suits instituted for the purpose of restraining the collection of internal revenue taxes, section 140 provides a complete remedy for that purpose. And furthermore, the validity of subsection (b) does not depend upon the existence of a fact which can be determined only after investigation of a very complicated and technical character, but the jurisdiction of the Legislature over

the subject with which the subsection deals is complete in any event. The judgment of the court in the Young case rests upon the proposition that the aggrieved parties had no adequate remedy at law. Neither did we overlook the case of General Oil Co. vs. Crain (209 U.S., 211), decided the same day and citing Ex parte Young, supra. In that case the plaintiff was a Tennessee corporation, with its principal place of business in Memphis, Tennessee. It was engaged in the manufacture and sale of coal oil, etc. Its wells and plant were located in Pennsylvania and Ohio. Memphis was not only its place of business, at which place it sold oil to the residents of Tennessee, but also a distributing point to which oils were shipped from Pennsylvania and Ohio and unloaded into various tanks for the purpose of being forwarded to the Arkansas, Louisiana, and Mississippi customers. Notwithstanding the fact that the company separated its oils, which were designated to meet the requirements of the orders from those States, from the oils for sale in Tennessee, the defendant insisted that he had a right, under the Act of the Tennessee Legislature, approved April 21, 1899, to inspect all the oils unlocated in Memphis, whether for sale in that State or not, and charge and collect for such inspection a regular fee of twenty-five cents per barrel. The company, being advised that the defendant had no such right, instituted this action in the inferior States court for the purpose of enjoining the defendant, upon the grounds stated in the bill, from inspecting or attempting to inspect its oils. Upon trial, the preliminary injunction which had been granted at the commencement of the action, was continued in force. Upon appeal, the supreme court of the State of Tennessee decided that the suit was one against the State and reversed the judgment of the Chancellor. In the Supreme Court of the United States, where the case was reviewed upon a writ of error, the contentions of the parties were stated by the court as follows: It is contended by defendant in error that this court is without jurisdiction because no matter sought to be litigated by plaintiff in error was determined by the Supreme Court of Tennessee. The court simply held, it is paid, that, under the laws of the State, it had no jurisdiction to entertain the suit for any purpose. And it is insisted hat this holding involved no Federal question, but only the powers and jurisdiction of the courts of the State of Tennessee, in respect to which the Supreme Court of Tennessee is the final arbiter. Opposing these contentions, plaintiff in error urges that whether a suit is one against a State cannot depend upon the declaration of a statute, but depends upon the essential nature ofthe suit, and that the Supreme Court recognized that the statute aded nothing to the axiomatic principle that the State, as a sovereign, is not subject to suit save by its own consent.And it is hence insisted that the court by dismissing the bill gave effect to the law which was attacked. It is further insisted that the bill undoubtedly present rights under the Constitution of the United States and conditions which entitle plaintiff in error to an injunction for the protection of such rights, and that a statute of the State which operates to deny such rights, or such relief, `is itself in conflict with the Constitution of the United States. That statute of Tennessee, which the supreme court of that State construed and held to be prohibitory of the suit, was an act passed February 28, 1873, which provides: That no court in the State of Tennessee has, nor shall hereafter have, any power, jurisdiction, or authority to entertain any suit against the State, or any officer acting by the authority of the State, with a view to reach the State, its treasury, funds or property; and all such suits now pending, or hereafter brought, shall be dismissed as to the State, or such officer, on motion, plea or demurrer of the law officer of the State, or counsel employed by the State. The Supreme Court of the United States, after reviewing many cases, said: Necessarily, to give adequate protection to constitutional rights a distinction must be made between valid and invalid state laws, as determining the character of the suit against state officers. And the suit at bar illustrates the necessity. If a suit against state officer is precluded in the national courts by the Eleventh Amendment to the Constitution, and may be forbidden by a State to its courts, as it is contended in the case at bar that it may be, without power of review by this court, it must be evident that an easy way is open to prevent the enforcement of many provisions of the Constitution; and the Fourteenth Amendment, which is directed at state action, could be nullified as to much of its operation. It being then the right of a party to be protected against a law which violates a constitutional right, whether by its terms or the manner of its enforcement, it is manifest that a decision which denies such protection gives effect to the law, and the decision is reviewable by this court. The court then proceeded to consider whether the law of 1899 would, if administered against the oils in question, violate any constitutional right of the plaintiff and after finding and adjudging that the oils were not in movement through the States, that they had reached the destination of their first shipment, and were held there, not in necessary

delay at means of transportation but for the business purposes and profit of the company, and resting its judgment upon the taxing power of the State, affirmed the decree of the supreme court of the State of Tennessee. From the foregoing it will be seen that the Supreme Court of Tennessee dismissed the case for want of jurisdiction because the suit was one against the State, which was prohibited by the Tennessee Legislature. The Supreme Court of the United States took jurisdiction of the controversy for the reasons above quoted and sustained the Act of 1899 as a revenue law. The case of Tennessee vs. Sneed (96 U.S., 69), and Shelton vs. Platt (139 U.S., 591), relied upon in our former opinion, were not cited in General Oil Co. vs. Crain, supra, because the questions presented and the statutes under consideration were entirely different. The Act approved March 31, 1873, expressly prohibits the courts from restraining the collection of any tax, leaving the dissatisfied taxpayer to his exclusive remedy payment under protest and suit to recover while the Act approved February 28, 1873, prohibits suits against the State. In upholding the statute which authorizes the removal of signboards or billboards upon the sole ground that they are offensive to the sight, we recognized the fact that we are not in harmony with various state courts in the American Union. We have just examined the decision of the Supreme Court of the State of Illinois in the recent case (October [December], 1914) of Thomas Cusack Co. vs. City of Chicago (267 Ill., 344), wherein the court upheld the validity of a municipal ordinances, which reads as follows: 707. Frontage consents required. It shall be unlawful for any person, firm or corporation to erect or construct any bill-board or sign-board in any block on any public street in which one-half of the buildings on both sides of the street are used exclusively for residence purposes, without first obtaining the consent, in writing, of the owners or duly authorized agents of said owners owning a majority of the frontage of the property, on both sides of the street, in the block in which such bill-board or sign-board is to be erected, constructed or located. Such written consent shall be filed with the commissioner of buildings before a permit shall be issued for the erection, construction or location of such bill-board or sign-board. The evidence which the Illinois court relied upon was the danger of fires, the fact that billboards promote the commission of various immoral and filthy acts by disorderly persons, and the inadequate police protection furnished to residential districts. The last objection has no virtue unless one or the other of the other objections are valid. If the billboard industry does, in fact, promote such municipal evils to noticeable extent, it seems a curious inconsistency that a majority of the property owners on a given block may legalize the business. However, the decision is undoubtedly a considerable advance over the views taken by other high courts in the United States and distinguishes several Illinois decisions. It is an advance because it permits the suppression of billboards where they are undesirable. The ordinance which the court approved will no doubt cause the virtual suppression of the business in the residential districts. Hence, it is recognized that under certain circumstances billboards may be suppressed as an unlawful use of private property. Logically, it would seem that the premise of fact relied upon is not very solid. Objections to the billboard upon police, sanitary, and moral grounds have been, as pointed out by counsel for Churchill and Tait, duly considered by numerous high courts in the United States, and, with one exception, have been rejected as without foundation. The exception is the Supreme Court of Missouri, which advances practically the same line of reasoning as has the Illinois court in this recent case. (St. Louis Gunning Advt. Co. vs. City of St. Louis, 137 S. W., 929.) In fact, the Illinois court, in Haller Sign Works vs. Physical Culture Training School (249 Ill., 436), distinguished in the recent case, said: There is nothing inherently dangerous to the health or safety of the public in structures that are properly erected for advertising purposes. If a billboard is so constructed as to offer no room for objections on sanitary or moral grounds, it would seem that the ordinance above quoted would have to be sustained upon the very grounds which we have advanced in sustaining our own statute. It might be well to note that billboard legislation in the United States is attempting to eradicate a business which has already been firmly established. This business was allowed to expand unchecked until its very extent called attention to its objectionable features. In the Philippine Islands such legislation has almost anticipated the business, which is not yet of such proportions that it can be said to be fairly established. It may be that the courts in the United States have committed themselves to a course of decisions with respect to billboard advertising, the full consequences of which were not perceived for the reason that the development of the business has been so recent that the objectionable features of it did not present themselves clearly to the courts nor to the people. We, in this country,

have the benefit of the experience of the people of the United States and may make our legislation preventive rather than corrective. There are in this country, moreover, on every hand in those districts where Spanish civilization has held sway for so many centuries, examples of architecture now belonging to a past age, and which are attractive not only to the residents of the country but to visitors. If the billboard industry is permitted without constraint or control to hide these historic sites from the passerby, the country will be less attractive to the tourist and the people will suffer a district economic loss. The motion for a rehearing is therefore denied. Arellano, C.J., Torres, and Carson, JJ., concur. HURCHILL vs. RAFFERTY, G.R. NO. L-10572, December 21, 1915 ( 32 Phil 580) Facts: The case arises from the fact that defendant, Collector of Internal Revenue, would like to destroy or remove any sign, signboard, or billboard, the property of the plaintiffs, for the sole reason that such sign, signboard, or billboard is, or may be offensive to the sight. The plaintiffs allege otherwise. Was there valid exercise of police power in this case? Held: Yes. There can be no doubt that the exercise of the police power of the Philippine Government belongs to the Legislature and that this power is limited only by the Acts of Congress and those fundamentals principles which lie at the foundation of all republican forms of government. An Act of the Legislature which is obviously and undoubtedly foreign to any of the purposes of the police power and interferes with the ordinary enjoyment of property would, without doubt, be held to be invalid. But where the Act is reasonably within a proper consideration of and care for the public health, safety, or comfort, it should not be disturbed by the courts. "The power vested in the legislature by the constitution to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same." "The police power of the State, so far, has not received a full and complete definition. It may be said, however, to be the right of the State, or state functionary, to prescribe regulations for the good order, peace, health, protection, comfort, convenience and morals of the community, which do not ... violate any of the provisions of the organic law." "It [the police power] has for its object the improvement of social and economic conditioned affecting the community at large and collectively with a view to bring about "he greatest good of the greatest number."Courts have consistently and wisely declined to set any fixed limitations upon subjects calling for the exercise of this power. It is elastic and is exercised from time to time as varying social conditions demand correction." "It may be said in a general way that the police power extends to all the great public needs. It may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare." "It is much easier to perceive and realize the existence and sources of this police power than to mark its boundaries, or to prescribe limits to its exercise." Republic of the Philippines SUPREME COURT Manila EN BANC DECISION

August 4, 1915 G.R. No. L-9651 THE UNITED STATES, plaintiff-appellee, vs. DOMINADOR GOMEZ JESUS, defendant-appellant. Recarado Ma. Calvo for appellant. Office of the Solicitor-General Corpus for appellee. Johnson, J.: On the 17th day of July, 1913, C.A. Sobral, assistant prosecuting attorney of the city of Manila, presented a complaint in the Court of First Instance of said city, charging the defendant with the crime of practicing medicine without a license, in violation of section 8 of Act No. 310 of the Philippine Commission. The complaint alleged: That in, during, and between the months of January, 1911 and June, 1913, in the city of Manila, Philippine Islands, the said Dominador Gomez Jesus having been suspended from the practice of medicine on or about August 28, 1909, by the Board of Medical Examiners, in accordance with the provisions of section 8 of said Act No. 310, and while his license as a physician and surgeon was revoked by the said Board of Medical Examiners, did then and there willfully, unlawfully, and feloniously treat, operate upon, prescribe, and advise for the physical ailments of one Margarita Dolores and other persons, for a fee, and presented himself by means of signs, cards, advertisements, and otherwise as a physician and surgeon, duly admitted, empowered, and allowed to practice medicine, in the city of Manila, Philippine Islands, when in truth and in fact as the said Dominador Gomez Jesus well knew, he was not allowed to practice medicine in any way in the city of Manila, or anywhere in the Philippine Islands, for a fee, and when, as he well knew, the rendering of medical and surgical services by him to the said Margarita Dolores and other persons in the city of Manila was for a fee, and not in a case of emergency, or in the administration of family remedies, or through a call in consultation with other duly admitted physicians or surgeons. On the 22nd day of July, 1913, the defendant appeared and demurred to the complaint, upon the following grounds: (1) That the complaint was not in the form required by law; (2) that the facts in said complaint did not constitute a crime; (3) that the complaint itself contains allegations which in truth would constitute a justification or legal exemption for the accused. After hearing the arguments for the defense and the prosecution on said demurrer, the Honorable Jose C. Abreu, in very interesting opinion in which he discusses fully said demurrer, reached the conclusion that the complaint was sufficient, and overruled said demurrer. On the 26th day of August, 1913, the defendant was duly arraigned and pleaded not guilty. The cause was brought on for trial before the Honorable George N. Hurd, on the 9th of September, 1913. After hearing the evidence, the said judge, in a very interesting and well-reasoned opinion, found the defendant guilty as charged in the complaint, and sentenced him to pay a fine of P200, with subsidiary imprisonment in case of failure to pay the same or any part thereof, and to pay the costs. From that sentence the defendant appealed to this court and made the following assignments of error: I. The court erred in declaring that the provisions of section 8 of Act No. 310 are not in conflict with the provisions of the Philippine Bill enacted by the Congress of the United States on July 1, 1902. II. The court likewise erred in declaring to be valid and effective that portion of section 8 of Act No. 310 which empowers the Board of Medical Examiners to revoke the certificate of a physician who may have been convicted of any offense involving immoral or dishonorable conduct or for unprofessional conduct.

III. The court likewise erred in considering to be final the decision of the Board of Medical Examiners revoking the certificate of the herein defendant, notwithstanding the appeal carried to the Board of Health and not yet heard and finally decided thereby as section 8 of Act No. 310 provides. IV. The court also erred in sustaining the objection of the prosecution to the evidence adduced by the defense tending to demonstrate that the defendants certificate as doctor of medicine represents a value greater than P600. V. The court likewise erred in holding that the Hotel Quirurgico is Doctor Gomez himself and that such institution exists only to cloak the violation of the law by the defendant. VI. The court erred, finally, in sentencing the defendant to pay a fine of P200 or, in default thereof, to suffer subsidiary imprisonment and to pay the costs of the trial. The facts disclosed by the record are as follows: 1. That some time prior to the 28th day of August, 1909, the defendant had been admitted, or had been licensed to practiced medicine in the Philippine Islands. 2. That some time prior to the said 28th day of August, 1909, the defendant had been accused, arrested, tried, and found guilty of a violation of the Opium Law. 3. That in the month of August, 1909, the defendant was cited to appear before the Board of Medical Examiners for the Philippine Islands, to show cause why his license to practice medicine should not be revoked, in accordance with the provisions of section 8 of Act No. 310. 4. That on the date set, the Board proceeded to make an investigation of the question of the revocation of the license of the defendant to practice medicine, based upon the fact that he had been theretofore convicted of an offense involving immoral or dishonorable conduct. 5. That after the conclusion of said investigation, the Board reached the conclusion (a) that the defendant had been guilty of an offensive involving immoral or dishonorable conduct; and (b) adopted a resolution revoking his license to practice medicine. 6. That the defendant was duly notified of the action of said Board. 7. That later the defendant appealed to the Director of Health, which appeal was finally withdrawn by him. 8. That later, and after the license of the defendant to practice medicine had been revoked, he did practice medicine in the Philippine Islands by treating, operating upon, prescribing he charged a fee, and that said treating, operating, and prescribing medicine for said various persons were not in cases of emergency, or in the administration of family remedies. 9. That the defendant is not a medical officer of the United States Army, the United States Navy, the United States Marine Hospital Service, nor a physician or surgeon from other countries called in consultation, nor a medical student, practicing medicine under the direct supervision of a preceptor who is a registered doctor of medicine. Upon the foregoing facts, the lower court imposed the fine indicated above. The appellant, in support of his first assignment of error, argues that section 8 of said Act No. 310 is in conflict with the provisions of the Philippine Bill (Act of Congress of July 1, 1902), and is, therefore, void. Act No. 310, among other things, provides:

1. (a) For the creation of A Board of Medical Examiners for the Philippine Islands. (b) That said Board shall examine candidates desiring to practice medicine in the Philippine Islands, and to issue a certificate of registration to such persons who are found to be qualified, in accordance with the provisions of said law, to practice medicine, etc. 2. That after the 1st of March, 1902, it shall be unlawful for any person to practice medicine, surgery, etc., in any of its branches in the Philippine Islands, unless he hold such certificate of registration. 3. That said Board of Medical Examiners may refuse to issue such certificate of registration to any individual convicted by a court of competent jurisdiction of any offense involving immoral or dishonorable conduct. 4. That said Board might revoke any certificate of registration theretofore granted to any person in case he should be convicted of any offense involving immoral or dishonorable conduct, or for unprofessional conduct. 5. That any person shall be regarded as practicing medicine, who shall treat, operate upon, prescribe, or advise for any physical ailment of another for a fee, or who shall represent himself, by means of signs, cards, advertisements, or otherwise, as a physician or surgeon. 6. That said law did not apply to the rendering of services in case of emergency or the administration of family remedies, or to medical officers of the United States Army, of the United States Navy, or of the United States Marine Hospital Service, or to a physician or surgeon of other countries called in consultation, or to a medical student, practicing under the supervision of a preceptor who is a registered doctor of medicine. It is the power of the Board of Medical Examiners to revoke a license, once granted, to which the appellant especially directs his argument, in support of his contention that said Act is in conflict with the said Act of Congress. Section 8 of Act No. 310 provides: The Board of Medical Examiners may refuse to issue any of the certificates provided for therein [in this Act] to an individual convicted by a court of competent jurisdiction of any offense involving immoral or dishonorable conduct. In case of such refusal, the reason therefor shall be stated to the applicant in writing. The Board may also revoke any such certificate for like cause, or for unprofessional conduct, after due notice to the person holding the certificate, and a hearing, subject to an appeal to the Board of Health for the Philippine Islands, the decision of which shall be final. That part of the Act of Congress upon which the appellant relies to show that Act No. 310 is void is paragraph 1 of section 5. Said paragraph reads as follows: That no law shall be enacted in said Islands which shall deprive any person of life, liberty, or property without due process of law, or deny to any person therein the equal protection of the laws. The appellants gives three reasons why section 8 of Act No. 310 is void. They are: (a) That the provisions of section 8 of Act No. 310 deprive the herein defendant of his rights or property without due process of law. (b) That the power to revoke the certificate of a doctor of medicine resides solely in the Courts of First Instance and the Supreme Court of the Philippine Islands. (c) That the power granted to the Board of Medical Examiners to revoke the certificate of a physician has been repealed by section 88 of the Philippine Bill. While the assignments of error present various questions, the real questions presented are three: 1. The right of the state to require of those who desire to practice medicine and surgery, etc., certain standards of morality and general and special scholarship, as a prerequisite said professions. 2. The right of the state to revoke such a license, once granted; and 3. The right of the state to punish, by fine or imprisonment, or both, those attempt to practice the professions of medicine, surgery, etc., without a license, and in violation of the law.

The appellant argues, in support of his right assignment of error: 1. That section 8 of Act No. 310 is null and void because it deprives him of a right or of property, without due process of law; 2. That the Board of Medical Examiners had no authority or right to revoke his license; that right, if any exists of all, belongs to the courts, and 3. That said section 8 has been repealed by section 88 of the Act of Congress of July 1, 1902 (The Philippine Bill). Generally speaking, with reference to the general and inherent power of the state, we think the following propositions are so well established that they no longer admit of dispute or discussion: 1. The state has general power to enact such laws, in relation to persons and property within its borders, as may promote public health, public morals, public safety, and the general prosperity and welfare of its inhabitants. (New York City vs. Miln, 11 Pet. (U.S.), 102, 139; Passenger Cases, 7 How. (U.S.), 283, 423; Slaughterhouse House Cases, 16 Wall., 36, 62; Beer Co. vs. Mass., 97 U.S., 25; Mugler vs. Kansas, 123 U.S., 623; Dent vs. W. Virginia, 129 U.S., 114 (25 W. Va., 1); Hawker vs. N.Y., 170 U.S., 189; Case vs. .Board of Health, 24 Phil. Rep., 250.) 2. To make reasonable provision for determining the qualifications of those engaging in the practice of medicine and surgery, and punishing those who attempt to engage therein in defiance of such provisions. (Dent vs. W. Virginia, 129 U.S., 114 (25 W. Va., 1); Hawker vs. N.Y., 170 U.S., 189; Reetz vs. Michigan, 188 U.S., 505; State vs. Webster, 150 Ind., 607.) This power of the state is generally denominated the police power. It has been held that the state cannot be deprived of its right to exercise this power. The police power and the right to exercise its constitute the very foundation, or at least one of the corner stones, of the state. For the state to deprive itself or permit itself to be deprived of the right to enact laws to promote the general prosperity and welfare of its inhabitants, and promote public health, public morals, and public safety, would be to destroy the very purpose and objects of the state. No legislature can bargain away the public health, public safety, or the public morals. The people themselves cannot do it, much less their servants. Governments are organized with a view to the preservation of these things. They cannot deprive themselves of the power to provide for them. (Stone vs. Mississippi, 101 U.S., 814, 816.) It has been held that a constitutional prohibition upon State laws impairing the obligation of contracts does not restrict the power of the State to protect the public health, public morals, or public safety, as the one or the other may be involved in the execution of such contracts. Rights and privileges arising from contracts with a State are subject to regulations for the protection of the public health, the public morals, and the public safety, in the same sense and to the same extent as are all contracts and all property, whether owned by natural persons or corporations. (New Orleans Gas Light Co. Louisiana Light Co., 115 U.S., 650, 672.) In order to enforce the police power of the state, it may, under certain conditions, become necessary to deprive its citizens of property and of a right providing for the continuance of property, when the property or the exercise of the right may tend to destroy the public health, the public morals, the public safety, and the general welfare and prosperity of its inhabitants. For example, a tannery, a slaughterhouse, or a fertilizing establishment may be located in such proximity to the residence portion of a city as to become a menace to the public health and the welfare of the inhabitants. In such a case the discontinuance or the removal of such institutions may be ordered, under the police power of the state, even though it amounts to depriving persons of their private property. (Slaughter House Cases, 16 Wal., 36, 62; Fertilizing co. vs. Hyde Park, 97 U.S., 659.) Mr. Chancellor Kent, in his valuable commentaries, in discussing the police power (2 Kents Commentaries, 340) says: Unwholesome trades, slaughterhouses, operations offensive to the senses, the deposit of powder, the application of steam power to the propelling of cars, the building with combustible materials, and the burial of the dead may all be interdicted by law, in the midst of dense masses of population, on the general and rational principle

that every person ought so to use his property as not to injure his neighbors, and that private interests must be made subservient to the general interest of the community. This power is called the police power of the state. (Commonwealth vs. Alger, 7 Cush. (Mass.), 53, 84.) The police power is so extensive and so comprehensive that the courts have refused to give it an exact definition; neither have they attempted to define its limitations. Upon the police power of the state depends the security of social order, the life and health of the citizens, the comfort of an existence in a thickly populated community, the enjoyment of private and social life, and the beneficial use of property. It extends to the protection of the lives, limbs, health, comfort, and quiet of all persons and the protection of all property within the state. Persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the state. (Thorpe vs. Rutland & B.R. Co., 27 Vt., 140, 149; New York City vs. Miln, 11 Pet. (U.S.), 102; Slaughter House Cases, 16, Wall., 36, 62.) Neither will it be denied that the owner of a building, which, by reason of its decayed condition, becomes a menace to public safety, may be ordered to destroy the same, and thus be deprived of his property. He may be ordered to repair or destroy it. Private property, under the police power, may be destroyed to prevent the spread of a conflagration in order to save lives and property. The existence of bawdy houses which tends to greatly affect the morals of the people of a community may be destroyed or may be removed. A manufacturing plant, so located in a thickly settled community as to greatly disturb the peace and comfort of the inhabitants, may be ordered closed or removed. The state, under its police power, may regulate or prohibit the manufacture and sale of intoxicating liquors as a beverage within its borders. Such a law may destroy the established business of thousands of its inhabitants. (Mugler vs. Kansas, 123 U.S., 623; License Cases, 5 How., 504.) If any state deems that the retailing or trafficking in ardent spirits is injurious to its citizens and calculated to produce idleness, vice, or debauchery, there is nothing in the Constitution of the United States to prevent it from regulating and restricting such traffic, or from prohibiting it altogether, if it think proper. The state may even declare that buildings where intoxicating liquors are distilled or sold shall be a nuisance and ordered destroyed. (Mugler vs. Kansas, 123 U.S., 623.) The state may regulate its domestic commerce, contracts, the transmission of estates, real and personal, and act upon all internal matters which relate to its moral and political welfare. Over these subjects federal governments exercise no power. The acknowledged police power of the state extends even to the destruction of property. A nuisance may be abated. Everything prejudicial to the health or morals of a city may be removed. (Licenses Cases, 5 How., 504; Beer Co. vs. Mass., 97 U.S., 25, 33; Foster vs. Kansas, 112 U.S., 201, 206; Case vs. Board of Health, 24 Phil. Rep., 250; Mugler vs. Kansas, 123 U.S., 623.) The police power of state extends to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within its borders. Under the general police power of the state, persons and property are subjected to all kinds of restrictions and burdens in order to secure the general health, comfort, and prosperity of all. This power, or the right to exercise it, as need may require, cannot be bargained away by the state. (Case vs. Board of Health, supra.) Even liberty itself, the greatest of all rights, is not unrestricted license to act according to ones own will. It is only freedom from restraint under conditions essential to the quiet enjoyment of the same right by others. (Case vs. Board of Health, supra; Holden vs. Hardy, 169 U.S., 366, 395.) It is as much for the interest of the state that public health should be preserved as that life should be made secure. With this end in view, quarantine laws have been enacted in most, if not all, civilized states. Insane asylums, public hospitals, institutions for the care and education of the blind have been established, and special measures taken for the exclusion of infected cattle, rags, and decayed fruit. States have enacted laws limiting the hours during which women and children shall be employed in factories. (Case vs. Board of Health, supra.) The present is not the first case which has been presented to the courts relating to the right of the state to regulate the practice of medicine and surgery, and to define the conditions under which such practice may be continued and to revoke the license granted to exercise such professions. Legislation or statutory regulations, similar to the one which we are now discussing, have been adopted in practically every one of the States of the Union. The constitutionality of such legislation has been questioned in practically all of States where such legislation exists. Such statutes have been uniformly sustained. (State vs. Webster, 150 Ind., 607, 616; Dent vs. W. Virginia, 25 W .Va., 1 (129 U.S., 114); Ex parte Frazer, 54 Cal., 94; Harding vs. People, 10 Colo., 387; People vs. Blue Mountain Joe, 129 Ill., 370; State vs. Mosher, 78 Iowa, 321; Iowa Eclectic Medical College vs. Schrader, 87 Iowa, 659 (20 L.R.A., 355);

Driscoll vs. Commonwealth, 93 Ky., 393; Hewitt vs. Charier, 16 Pick. (Mass.), 353; Reetz vs. Michigan, 188 U.S., 505; People vs. Phippin, 70 Mich., 6; State vs. State Medical Examining Board, 32 Minn., 324; State vs. Fleischer, 41 Minn., 69; State vs. District Court, 13 Mont., 370; Gee Wo vs. State, 36 Neb., 241; State vs. Van Doran, 109 N.C., 864; State vs. Randolph, 23 Ore., 74.) The constitutionality of similar legislation, regulating the practice of dentistry, has been presented in many of the States, and has been sustained. (Wilkins vs. State, 113 Ind., 514; Gosnel vs. State, 52 Ark., 228; State vs. Vanderluis, 42 Minn., 129; State vs. Creditor, 44 Kansas, 565.) So also have similar statutory regulations been sustained affecting the practice of pharmacy. (Hildreth vs. Crawford, 65 Iowa, 339; People vs. Moorman, 86 Mich., 433; State vs. Forcier, 65 N.H., 42.) Various States have attempted to regulate by statute the trade of plumbing, of horseshoeing, as well as that of engineering. Even the trade of barbering is subject to statutory regulation in some States, because it has relation to the health of the people. (Singer vs. State, 72 Md., 464; People vs. Warden, 144 N.Y., 529; Smith vs. Alabama, 124 U.S., 465.) Legislation analogous to that under discussion has also been adopted in various States relating to the practice of the profession of law. The constitutionality of such legislation has been uniformly sustained. (State vs. Gazlay, 5 Ohio, 14; Goldwaite vs. City Council, 50 Ala., 486; Cohen vs. Wright, 22 Cal., 293; Ex parte Yale, 24 Cal., 241.) In every case where the constitutionality of similar statutes has been questioned, it has been held that it is within the power of the legislature to prescribe the qualifications for the practice of professions or trades which affect the public welfare, the public health, the public morals, and the public safety, and to regulate or control such professions or trades, even to the point of revoking such right altogether. The trade of plumbing vitally affects the health of the people. The lives of thousands of people may depend upon the result of the work of an engineer. The property and life of citizens of the state may depend upon the advice of a lawyer, and no profession or trade is more directly connected with the health and comfort of the people than that of a physician and surgeon. The practice of medicine and surgery is a vocation which very nearly concerns the comfort, health, and life of every person in the land. Physicians and surgeons have committed to their care most important interests, and it is of almost imperious necessity that only persons possessing skill and knowledge shall be permitted to practice medicine and surgery. For centuries the law has required physicians to possess and exercise skill and learning. Courts have not hesitated to punish those who have caused damages for lack of such skill and learning. The requirement of the Philippine Legislature that those who may engage in such professions shall be possessed of both knowledge and skill before entering the same is no new principle of law. It is an exercise of the right of the state, under its police power, which has been recognized for centuries. No one can doubt the great importance to the community that health, life, and limb should be protected and not be left in the hands of ignorant pretenders, and that the services of reputable, skilled and learned men should be secured to them. In the case of Dent vs. W. Virginia (129 U.S., 114), the late Mr. Justice Field, speaking for the court, said: It is undoubtedly the right of every citizen [of the United States] to follow any lawful calling, business, or profession he may choose, subject only to such restrictions as are imposed upon all persons of like age, sex and conditions. This right may in many aspects be considered as a distinguishing feature of our republican institutions. Here all vocations are open to everyone on like conditions. All may be pursued as sources of livelihood, some requiring years of study and great learning for their successful prosecution. The interest, or, as it is sometimes termed, the estate acquired in them that is, the right to continue their prosecution is often of great value to the possessors, and cannot be arbitrarily taken from them, any more than their real or personal property can be thus taken. But there is no arbitrary deprivation of such right when its exercise is not permitted because of a failure to comply with conditions imposed by the state for the prosecution of society. The power (police power) of the state to provide for the general welfare of its people authorizes it to prescribe all such regulations as in its judgment will secure, or tend to secure, them against the consequences of ignorance and incapacity as well as of deception and fraud. As one means to this end, it has been the practice of different States, from the time immemorial, to exact in many pursuits (professions or trades) a certain degree of skill and learning upon which the community may confidently rely, their possession being

generally ascertained upon an examination of parties by competent persons, or inferred from a certificate to them in the form of a diploma or license from an institutions established for instruction on the subjects, scientific and otherwise, with which such pursuits have to deal. Few professions require more careful preparation by one who seeks to enter it than that of medicine. It has to deal with all those subtle and mysterious influences upon which health and life depend and requires not only a knowledge of the properties of vegetables and mineral substances, but of the human body in all its complicated parts and their relation to each other, as well as their influence upon the mind. The physician must be able to detect readily the presence of disease, and prescribe appropriate remedies for its removal. Everyone may have occasion to consult him, but comparatively few can judge of the qualifications of learning and skill which he possesses. Reliance must be placed upon the assurance given by his license, issued by authority competent to judge in that respect, that he possesses the requisite qualifications. Due consideration, therefore, for the protection of society may well induce the state to exclude from practice those who have not such a license, or who are found, upon examination, not to be fully qualified. The same reasons which control in imposing conditions, upon compliance with which the physician is allowed to practice in the first instance, may call for further conditions as new modes of treating disease are discovered, or a more thorough acquaintance is obtained of the remedial properties of vegetables and mineral substances, or a more accurate knowledge is acquired of the human system, and of the agencies by which it is affected. We perceive nothing in the statute which indicates an intentions of the legislature to deprive one of any of his rights. No one has a right to practice medicine without having the necessary qualifications of learning and skill; and the statute only requires that whoever assumes, by offering to the community his services as a physician, that he possesses such learning and skill, shall present evidence of it by a certificate or license from a body designated by the state as competent to judge of his qualifications. The appellant contends, however, that the Legislature exceeded its authority in conferring upon the Board of Medical Examiners the right to revoke his license. He contends that the right to revoke it rests in the judicial department of the Government; that the courts only are possessed of the right, if the right exists, to revoke his license and to deprive him of his right to practice his profession of medicine and surgery. It will be remembered that the law conferred upon the Board the right to grant the certificate, as well sa the right to revoke it, subject to the right of appeal to the Director of Health. While, in some respects, the power exercised by the Board is quasi judicial, the action of the Board is not judicial, any more than the action of a board appointed to determine the qualifications of applicants for admission to the bar, nor that of a board appointed to pass upon the qualifications of applicants to be admitted to the profession of teaching. In many of the States of the Union, no one can engage in the trade of barbering, or horseshoeing, without passing an examination before a board specially appointed for that purpose. States have deemed it wiser to place such power and discretion in boards composed of men especially qualified, by reason of their learning and scientific knowledge, rather than in the courts. It is contended that the law provides no appeal from the decision of the board to the courts, and is, for that reason, null and void. A law is not necessarily invalid, if it provides a remedy for those affected thereby, simply because it does not provides for an appeal to the courts. Due process of law is not necessarily judicial process. (Murrays Lessee vs. Hoboken Land etc. Co., 18 How. (U.S.), 372; Davidson vs. New Orleans, 96 U.S., 97; Ex parte Wall, 107 U.S., 265, 289; Dreyer vs. Illinois, 187 U.S., 71, 83; Reetz vs. Michigan, 188 U.S., 505.) Indeed, it not infrequently happens that a full discharge of the duties conferred upon boards and commissions or officers of a purely ministerial character requires them to consider and to finally determine questions of a purely legal character. The legislature may confer upon persons, boards, officers, and commissions the right to finally decide may questions affecting various interest of the people of the state. If a remedy is granted, the law will be valid, even though no appeal to the courts is provided. The right of appeal is a purely statutory right; it is not an inherent right. The right to appeal was not at common law, and it is not now, a necessary element of due process of law. (McKane vs. Durston, 153 U.S., 684, 687; Reetz vs. Michigan, 188 U.S., 505, 508.) The objection that the statute confers judicial power upon the Board of Medical Examiners is not well founded. The law provided for an appeal to the Director of Health. Many executive officers, even those who are are regarded as purely ministerial officers, act judicially in the determination of facts in the performance of their duties, and in so doing they do not exercise judicial power, as that phrase is commonly used, and as it is used in the Organic Act in conferring judicial power upon specified courts. The powers conferred upon the Board of Medical Examiners are in no wise different in character, in this respect, from those exercised by those of examiners of candidates to teach in our public schools, or by tax assessors, or boards of equalization, in the determination for the purposes of taxation,

the value of property. The ascertainment and determination of the qualifications to practice medicine, by a board appointed for that purpose, composed of experts, is not the exercise of a power which appropriately belongs to the judicial department of the Government. The same is true with reference to the power conferred upon such a board to revoke a license, for the reasons given in the law. (People vs. Hasbrouck, 11 Utah, 291; Reetz vs. Michigan 188 U.S., 505, 507.) The appellant further argues and contends that the present law is repealed by section 88 of the Act of Congress of July 1, 1902. We think from the foregoing argument we have shown that there is nothing in said Act of Congress which is inconsistent with the provisions of Act No. 310, under consideration, and that it is not repealed. What has been said, we think also answers the argument of the appellant in support of his second, third, and fourth assignments of error. It may be well, however, to observe in relation to the third assignment that the appellant cannot object to the decision of the Board, when he himself, after his appeal, voluntarily withdrew it. With reference to the fifth assignment of error, the record shows, beyond question, that the appellant had personally engaged in the practice of medicine and surgery, in clear contravention of the law, without being authorized so to do. It is a matter of little importance whether the appellant practiced medicine and surgery as the Hotel Quirurgico or not. The record shows that he personally and illegally engaged in the practice of medicine. The poor sick patients who called him for medical assistance certainly did not believe or think that they were calling the Hotel Quirurgico. They believed that they were being treated by the appellant. So ordered. For all of the foregoing reasons the sentence of the lower court is hereby affirmed, with costs. Arellano, C.J., Torres, Carson, Trent, and Araullo, JJ., concur. Vicente De La Cruz vs Edgardo Paras 23 11 2010

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Subject Shall Be Expressed in the Title Police Power Not Validly Exercise De La Cruz et al were club & cabaret operators. They assail the constitutionality of Ord. No. 84, Ser. of 1975 or the Prohibition and Closure Ordinance of Bocaue, Bulacan. De la Cruz averred that the said Ordinance violates their right to engage in a lawful business for the said ordinance would close out their business. That the hospitality girls they employed are healthy and are not allowed to go out with customers. Judge Paras however lifted the TRO he earlier issued against Ord. 84 after due hearing declaring that Ord 84. is constitutional for it is pursuant to RA 938 which reads AN ACT GRANTING MUNICIPAL OR CITY BOARDS AND COUNCILS THE POWER TO

REGULATE THE ESTABLISHMENT, MAINTENANCE AND OPERATION OF CERTAIN PLACES OF AMUSEMENT WITHIN THEIR RESPECTIVE TERRITORIAL JURISDICTIONS. Paras ruled that the prohibition is a valid exercise of police power to promote general welfare. De la Cruz then appealed citing that they were deprived of due process. ISSUE: Whether or not a municipal corporation, Bocaue, Bulacan can, prohibit the exercise of a lawful trade, the operation of night clubs, and the pursuit of a lawful occupation, such clubs employing hostesses pursuant to Ord 84 which is further in pursuant to RA 938. HELD: The SC ruled against Paras. If night clubs were merely then regulated and not prohibited, certainly the assailed ordinance would pass the test of validity. SC had stressed reasonableness, consonant with the general powers and purposes of municipal corporations, as well as consistency with the laws or policy of the State. It cannot be said that such a sweeping exercise of a lawmaking power by Bocaue could qualify under the term reasonable. The objective of fostering public morals, a worthy and desirable end can be attained by a measure that does not encompass too wide a field. Certainly the ordinance on its face is characterized by overbreadth. The purpose sought to be achieved could have been attained by reasonable restrictions rather than by an absolute prohibition. Pursuant to the title of the Ordinance, Bocaue should and can only regulate not prohibit the business of cabarets. VICENTE DE LA CRUZ et al vs THE HONORABLE EDGARDO L. PARAS et al 23 11 2010

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Read digest here. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-42571-72 July 25, 1983 VICENTE DE LA CRUZ, RENATO ALIPIO, JOSE TORRES III, LEONCIO CORPUZ, TERESITA CALOT, ROSALIA FERNANDEZ, ELIZABETH VELASCO, NANETTE VILLANUEVA, HONORATO BUENAVENTURA, RUBEN DE CASTRO, VICENTE ROXAS, RICARDO DAMIAN, DOMDINO ROMDINA, ANGELINA OBLIGACION, CONRADO GREGORIO, TEODORO REYES, LYDIA ATRACTIVO, NAPOLEON MENDOZA, PERFECTO GUMATAY, ANDRES SABANGAN, ROSITA DURAN, SOCORRO BERNARDEZ, and PEDRO GABRIEL, petitioners, vs.

THE HONORABLE EDGARDO L. PARAS, MATIAS RAMIREZ as the Municipal Mayor, MARIO MENDOZA as the Municipal Vice-Mayor, and THE MUNICIPAL COUNCIL OF BOCAUE, BULACAN, respondents. Federico N. Alday for petitioners. Dakila F. Castro for respondents.

FERNANDO, C.J.: The crucial question posed by this certiorari proceeding is whether or not a municipal corporation, Bocaue, Bulacan, represented by respondents, 1 can, prohibit the exercise of a lawful trade, the operation of night clubs, and the pursuit of a lawful occupation, such clubs employing hostesses. It is contended that the ordinance assailed as invalid is tainted with nullity, the municipality being devoid of power to prohibit a lawful business, occupation or calling, petitioners at the same time alleging that their rights to due process and equal protection of the laws were violated as the licenses previously given to them was in effect withdrawn without judicial hearing. 2 The assailed ordinance 3 is worded as follows: Section 1. Title of Ordinance. This Ordinance shall be known and may be cited as the [Prohibition and Closure Ordinance] of Bocaue, Bulacan. Section 2. Definitions of Terms (a) Night Club shall include any place or establishment selling to the public food or drinks where customers are allowed to dance. (b) Cabaret or Dance Hall shall include any place or establishment where dancing is permitted to the public and where professional hostesses or hospitality girls and professional dancers are employed. (c) Professional hostesses or hospitality girls shall include any woman employed by any of the establishments herein defined to entertain guests and customers at their table or to dance with them. (d) Professional dancer shall include any woman who dances at any of the establishments herein defined for a fee or remuneration paid directly or indirectly by the operator or by the persons she dances with. (e) Operator shall include the owner, manager, administrator or any person who operates and is responsible for the operation of any night club, cabaret or dance hall. Section 3. Prohibition in the Issuance and Renewal of Licenses, Permits. Being the principal cause in the decadence of morality and because of their other adverse effects on this community as explained above, no operator of night clubs, cabarets or dance halls shall henceforth be issued permits/licenses to operate within the jurisdiction of the municipality and no license/permit shall be issued to any professional hostess, hospitality girls and professional dancer for employment in any of the aforementioned establishments. The prohibition in the issuance of licenses/permits to said persons and operators of said establishments shall include prohibition in the renewal thereof. Section 4. Revocation of Permits and Licenses. The licenses and permits issued to operators of night clubs, cabarets or dance halls which are now in operation including permits issued to professional hostesses, hospitality girls and professional dancers are hereby revoked upon the expiration of the thirty-day period given them as provided in Section 8 hereof and thenceforth, the operation of these establishments within the jurisdiction of the municipality shall be illegal. Section 5. Penalty in case of violation. Violation of any of the provisions of this Ordinance shall be punishable by imprisonment not exceeding three (3) months or a fine not exceeding P200.00 or both at the discretion of the Court. If the offense is committed by a juridical entity, the person charged with the management and/or operation thereof shall be liable for the penalty provided herein. Section 6. Separability Clause. If, for any reason, any section or provision of this Ordinance is held unconstitutional or invalid, no other section or provision hereof shall be affected thereby. Section 7. Repealing Clause. All ordinance, resolutions, circulars, memoranda or parts thereof that are inconsistent with the provisions of this Ordinance are hereby repealed. Section 8. Effectivity. This Ordinance shall take effect immediately upon its approval; provided, however, that operators of night clubs, cabarets and dance halls now in operation including professional hostesses, hospitality girls and professional dancers are given a period of thirty days from the approval hereof within which to wind up their businesses and comply with the provisions of this Ordinance. 4 On November 5, 1975, two cases for prohibition with preliminary injunction were filed with the Court of First Instance of Bulacan. 5 The grounds alleged follow:

1. Ordinance No. 84 is null and void as a municipality has no authority to prohibit a lawful business, occupation or calling. 2. Ordinance No. 84 is violative of the petitioners right to due process and the equal protection of the law, as the license previously given to petitioners was in effect withdrawn without judicial hearing. 3. That under Presidential Decree No. 189, as amended, by Presidential Decree No. 259, the power to license and regulate tourist-oriented businesses including night clubs, has been transferred to the Department of Tourism. 6 The cases were assigned to respondent Judge, now Associate Justice Paras of the Intermediate Appellate Court, who issued a restraining order on November 7, 1975. The answers were thereafter filed. It was therein alleged: 1. That the Municipal Council is authorized by law not only to regulate but to prohibit the establishment, maintenance and operation of night clubs invoking Section 2243 of the RAC, CA 601, Republic Acts Nos. 938, 978 and 1224. 2. The Ordinance No. 84 is not violative of petitioners right to due process and the equal protection of the law, since property rights are subordinate to public interests. 3. That Presidential Decree No. 189, as amended, did not deprive Municipal Councils of their jurisdiction to regulate or prohibit night clubs. 7 There was the admission of the following facts as having been established: l. That petitioners Vicente de la Cruz, et al. in Civil Case No. 4755-M had been previously issued licenses by the Municipal Mayor of Bocaue-petitioner Jose Torres III, since 1958; petitioner Vicente de la Cruz, since 1960; petitioner Renato Alipio, since 1961 and petitioner Leoncio Corpuz, since 1972; 2. That petitioners had invested large sums of money in their businesses; 3. That the night clubs are well-lighted and have no partitions, the tables being near each other; 4. That the petitioners owners/operators of these clubs do not allow the hospitality girls therein to engage in immoral acts and to go out with customers; 5. That these hospitality girls are made to go through periodic medical check-ups and not one of them is suffering from any venereal disease and that those who fail to submit to a medical check-up or those who are found to be infected with venereal disease are not allowed to work; 6. That the crime rate there is better than in other parts of Bocaue or in other towns of Bulacan. 8 Then came on January 15, 1976 the decision upholding the constitutionality and validity of Ordinance No. 84 and dismissing the cases. Hence this petition for certiorari by way of appeal. In an exhaustive as well as scholarly opinion, the lower court dismissed the petitions. Its rationale is set forth in the opening paragraph thus: Those who lust cannot last. This in essence is why the Municipality of Bocaue, Province of Bulacan, stigmatized as it has been by innuendos of sexual titillation and fearful of what the awesome future holds for it, had no alternative except to order thru its legislative machinery, and even at the risk of partial economic dislocation, the closure of its night clubs and/or cabarets. This in essence is also why this Court, obedient to the mandates of good government, and cognizant of the categorical imperatives of the current legal and social revolution, hereby [upholds] in the name of police power the validity and constitutionality of Ordinance No. 84, Series of 1975, of the Municipal Council of Bocaue, Bulacan. The restraining orders heretofore issued in these two cases are therefore hereby rifted, effective the first day of February, 1976, the purpose of the grace period being to enable the petitioners herein to apply to the proper appellate tribunals for any contemplated redress. 9 This Court is, however, unable to agree with such a conclusion and for reasons herein set forth, holds that reliance on the police power is insufficient to justify the enactment of the assailed ordinance. It must be declared null and void. 1. Police power is granted to municipal corporations in general terms as follows: General power of council to enact ordinances and make regulations. The municipal council shall enact such ordinances and make such regulations, not repugnant to law, as may be necessary to carry into effect and discharge the powers and duties conferred upon it by law and such as shall seem necessary and proper to provide for the health and safety, promote the prosperity, improve the morals, peace, good order, comfort, and convenience of the municipality and the inhabitants thereof, and for the protection of property therein. 10 It is practically a reproduction of the former Section 39 of Municipal Code. 11 An ordinance enacted by virtue thereof, according to Justice Moreland, speaking for the Court in the leading case of United States v. Abendan 12 is valid, unless it contravenes the fundamental law of the Philippine Islands, or an Act of the Philippine Legislature, or unless it is against public policy, or is unreasonable, oppressive, partial, discriminating, or in derogation of common right. Where the power to legislate upon a given subject, and the mode of its exercise and the details of such legislation are not prescribed, the ordinance passed pursuant thereto must be a reasonable exercise of the power, or it will be pronounced invalid. 13 In another leading case, United States v. Salaveria, 14 the ponente this time being Justice Malcolm, where the present Administrative Code provision was applied, it was stated by this Court: The general welfare clause has two branches: One branch attaches itself to the main trunk of municipal authority, and relates to such ordinances and regulations as may be necessary to carry into effect and discharge the powers and duties conferred upon the municipal council by law. With this class we are not

here directly concerned. The second branch of the clause is much more independent of the specific functions of the council which are enumerated by law. It authorizes such ordinances as shall seem necessary and proper to provide for the health and safety, promote the prosperity, improve the morals, peace, good order, comfort, and convenience of the municipality and the inhabitants thereof, and for the protection of property therein. It is a general rule that ordinances passed by virtue of the implied power found in the general welfare clause must be reasonable, consonant with the general powersand purposes of the corporation, and not inconsistent with the laws or policy of the State. 15 If night clubs were merely then regulated and not prohibited, certainly the assailed ordinance would pass the test of validity. In the two leading cases above set forth, this Court had stressed reasonableness, consonant with the general powers and purposes of municipal corporations, as well as consistency with the laws or policy of the State. It cannot be said that such a sweeping exercise of a lawmaking power by Bocaue could qualify under the term reasonable. The objective of fostering public morals, a worthy and desirable end can be attained by a measure that does not encompass too wide a field. Certainly the ordinance on its face is characterized by overbreadth. The purpose sought to be achieved could have been attained by reasonable restrictions rather than by an absolute prohibition. The admonition in Salaveria should be heeded: The Judiciary should not lightly set aside legislative action when there is not a clear invasion of personal or property rights under the guise of police regulation. 16 It is clear that in the guise of a police regulation, there was in this instance a clear invasion of personal or property rights, personal in the case of those individuals desirous of patronizing those night clubs and property in terms of the investments made and salaries to be earned by those therein employed. 2. The decision now under review refers to Republic Act No. 938 as amended. 17 It was originally enacted on June 20, 1953. It is entitled: AN ACT GRANTING MUNICIPAL OR CITY BOARDS AND COUNCILS THE POWER TO REGULATE THE ESTABLISHMENT, MAINTENANCE AND OPERATION OF CERTAIN PLACES OF AMUSEMENT WITHIN THEIR RESPECTIVE TERRITORIAL JURISDICTIONS. 18 Its first section insofar as pertinent reads: The municipal or city board or council of each chartered city shall have the power to regulate by ordinance the establishment, maintenance and operation of night clubs, cabarets, dancing schools, pavilions, cockpits, bars, saloons, bowling alleys, billiard pools, and other similar places of amusement within its territorial jurisdiction: 19 Then on May 21, 1954, the first section was amended to include not merely the power to regulate, but likewise Prohibit 20 The title, however, remained the same. It is worded exactly as Republic Act No. 938. It is to be admitted that as thus amended, if only the above portion of the Act were considered, a municipal council may go as far as to prohibit the operation of night clubs. If that were all, then the appealed decision is not devoid of support in law. That is not all, however. The title was not in any way altered. It was not changed one whit. The exact wording was followed. The power granted remains that of regulation, not prohibition. There is thus support for the view advanced by petitioners that to construe Republic Act No. 938 as allowing the prohibition of the operation of night clubs would give rise to a constitutional question. The Constitution mandates: Every bill shall embrace only one subject which shall be expressed in the title thereof. 21 Since there is no dispute as the title limits the power to regulating, not prohibiting, it would result in the statute being invalid if, as was done by the Municipality of Bocaue, the operation of a night club was prohibited. There is a wide gap between the exercise of a regulatory power to provide for the health and safety, promote the prosperity, improve the morals, 22 in the language of the Administrative Code, such competence extending to all the great public needs, 23 to quote from Holmes, and to interdict any calling, occupation, or enterprise. In accordance with the well-settled principle of constitutional construction that between two possible interpretations by one of which it will be free from constitutional infirmity and by the other tainted by such grave defect, the former is to be preferred. A construction that would save rather than one that would affix the seal of doom certainly commends itself. We have done so before We do so again. 24 3. There is reinforcement to the conclusion reached by virtue of a specific provision of the recently-enacted Local Government Code. 25 The general welfare clause, a reiteration of the Administrative Code provision, is set forth in the first paragraph of Section 149 defining the powers and duties of the sangguniang bayan. It read as follows: (a) Enact such ordinances and issue such regulations as may be necessary to carry out and discharge the responsibilities conferred upon it by law, and such as shall be necessary and proper to provide for the health, safety, comfort and convenience, maintain peace and order, improve public morals, promote the prosperity and general welfare of the municipality and the inhabitants thereof, and insure the protection of property therein; 26 There are in addition provisions that may have a bearing on the question now before this Court. Thus the sangguniang bayan shall (rr) Regulate cafes, restaurants, beer-houses, hotels, motels, inns, pension houses and lodging houses, except travel agencies, tourist guides, tourist transports, hotels, resorts, de luxe restaurants, and tourist inns of international

standards which shall remain under the licensing and regulatory power of the Ministry of Tourism which shall exercise such authority without infringing on the taxing or regulatory powers of the municipality; (ss) Regulate public dancing schools, public dance halls, and sauna baths or massage parlors; (tt) Regulate the establishment and operation of billiard pools, theatrical performances, circuses and other forms of entertainment; 27 It is clear that municipal corporations cannot prohibit the operation of night clubs. They may be regulated, but not prevented from carrying on their business. It would be, therefore, an exercise in futility if the decision under review were sustained. All that petitioners would have to do is to apply once more for licenses to operate night clubs. A refusal to grant licenses, because no such businesses could legally open, would be subject to judicial correction. That is to comply with the legislative will to allow the operation and continued existence of night clubs subject to appropriate regulations. In the meanwhile, to compel petitioners to close their establishments, the necessary result of an affirmance, would amount to no more than a temporary termination of their business. During such time, their employees would undergo a period of deprivation. Certainly, if such an undesirable outcome can be avoided, it should be. The law should not be susceptible to the reproach that it displays less than sympathetic concern for the plight of those who, under a mistaken appreciation of a municipal power, were thus left without employment. Such a deplorable consequence is to be avoided. If it were not thus, then the element of arbitrariness enters the picture. That is to pay less, very much less, than full deference to the due process clause with its mandate of fairness and reasonableness. 4. The conclusion reached by this Court is not to be interpreted as a retreat from its resolute stand sustaining police power legislation to promote public morals. The commitment to such an Ideal forbids such a backward step. Legislation of that character is deserving of the fullest sympathy from the judiciary. Accordingly, the judiciary has not been hesitant to lend the weight of its support to measures that can be characterized as falling within that aspect of the police power. Reference is made by respondents to Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila. 28 There is a misapprehension as to what was decided by this Court. That was a regulatory measure. Necessarily, there was no valid objection on due process or equal protection grounds. It did not prohibit motels. It merely regulated the mode in which it may conduct business in order precisely to put an end to practices which could encourage vice and immorality. This is an entirely different case. What was involved is a measure not embraced within the regulatory power but an exercise of an assumed power to prohibit. Moreover, while it was pointed out in the aforesaid Ermita-Malate Hotel and Motel Operators Association, Inc. decision that there must be a factual foundation of invalidity, it was likewise made clear that there is no need to satisfy such a requirement if a statute were void on its face. That it certainly is if the power to enact such ordinance is at the most dubious and under the present Local Government Code non-existent. WHEREFORE, the writ of certiorari is granted and the decision of the lower court dated January 15, 1976 reversed, set aside, and nullied. Ordinance No. 84, Series of 1975 of the Municipality of Bocaue is declared void and unconstitutional. The temporary restraining order issued by this Court is hereby made permanent. No costs. Teehankee, Aquino, Concepcion Jr., Guerrero, Abad Santos, Plana, Escolin Relova and Gutierrez, Jr., JJ., concur. Makasiar, J, reserves his right to file a dissent. CASE 3: US VS. SALAVERIA(G.R. NO. L-13678, NOVEMBER 12, 1918)FACTS: The municipal council of Orion, Bataan, enacted, on February 28, 1917, an ordinance which,among other things, prohibited the playing of panguingue on days not Sundays or legal holidays,and penalized the violation thereof by a casero [housekeeper] by a fine of not less than P10 nor more than P200, and by jugadores [gamblers] by a fine of not less than P5 nor more than P200.The justice of the peace of Orion, when this ordinance went into effect, was Prudencio Salaveria,now the defendant and appellant. Notwithstanding his official station, on the evening of March 8,1917, not a Sunday or legal holiday, seven persons including the justice of the peace an his wifewere surprised by the police while indulging in a game of

panguingue in the house of the justiceof the peace. The chief of police took possession of the cards, the counters ( sigayes ), a tray, anP2.07 in money, used in the game. ISSUE: Whether or not Ordinance No. 3 of Orion, Bataan, is found to be valid. HELD: Wherefore, although panguingue is not entirely a game of chance, since it is a proper subject for regulation by municipal authorities acting under their delegated police power, whose laudable intention is to improve the public morals and promote the prosperity of their people, their actionshould be upheld by the courts. Ordinance No. 3 of Orion, Bataan, is found to be valid.Ordinance No. 3x x x x x x x x xThird. The games known as "Panguingue" "Manilla," "Jung-kiang," "Paris-Paris,""Poker," "Tute," "Burro," and "Treinta-y-uno" shall be allowed only on Sundays an officialholidays.x x x x x x x x xThe following penalties shall be imposed upon those who play the above games on daysother than Sundays and official holidays:For the owner of the house: A fine of from Ten to Two hundred pesos, or subsidiaryimprisonment in case of insolvency at the rate of one peso a day.For the gamblers: A fine of from Five to Two hundred pesos each or subsidiaryimprisonment in case of insolvency at the rate of one peso a day.General Welfare Clause(sec. 2238, Adm. Code of 1917): The municipal council shall enact such ordinances and make such regulations, not repugnant tolaw, as may be necessary to carry into effect and discharge the powers an duties conferred uponi t b y l a w a n s u c h as shall seem necessary and proper to provide for the health and safety, promote the prosperity, improve the morals , peace, good order, comfort, and convenience of the municipality and the inhabitants thereof, and for the protection of property therein

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-13678 November 12, 1918

THE UNITED STATES, plaintiff-appellee, vs. PRUDENCIO SALAVERIA, defendant-appellant. Jose R. Varela for appellant. Office of the Solicitor-General Paredes for appellee.

MALCOLM, J.:

The municipal council of Orion, Bataan, enacted, on February 28, 1917, an ordinance which, among other things, prohibited the playing of panguingue on days not Sundays or legal holidays, and penalized the violation thereof by a casero [housekeeper] by a fine of not less than P10 nor more than P200, and by jugadores [gamblers] by a fine of not less than P5 nor more than P200. The justice of the peace of Orion, when this ordinance went into effect, was Prudencio Salaveria, now the defendant and appellant. Notwithstanding his official station, on the evening of March 8, 1917, not a Sunday or legal holiday, seven persons including the justice of the peace an his wife were surprised by the police while indulging in a game of panguingue in the house of the justice of the peace. The chief of police took possession of the cards, the counters (sigayes), a tray, an P2.07 in money, used in the game. These are facts fully proven by the evince and by the admissions of the accused. Convicted in the justice of the peace court of Orion, and again in the Court of First Instance of Bataan, Salaveria appeals to this court, making five assignments of error. The three assignments, of a technical nature, are without merit, and a fourth, relating to the evidence, is not sustained by the proof. The remaining assignment of error, questioning the validity of the ordinance under which the accused was convicted, requires serious consideration and final resolution. This ordinance in part reads: RESOLUTION NO. 28 xxx xxx xxx

Whereas, this Council is vested with certain powers by sections 2184 and 2185 of the Administrative Code; Whereas, it is the moral duty of this body to safeguard the tranquillity and stability of the Government and to foster the welfare and prosperity of each an all of the inhabitants of this municipality; therefore, Be it resolved to enact, as it hereby is enacted, the following ordinance: Ordinance No. 3 xxx xxx xxx

Third. The games known as "Panguingue" "Manilla," "Jung-kiang," "ParisParis," "Poker," "Tute," "Burro," and "Treinta-y-uno" shall be allowed only on Sundays an official holidays. xxx xxx xxx

The following penalties shall be imposed upon those who play the above games on days other than Sundays and official holidays:

For the owner of the house: A fine of from Ten to Two hundred pesos, or subsidiary imprisonment in case of insolvency at the rate of one peso a day. For the gamblers: A fine of from Five to Two hundred pesos each or subsidiary imprisonment in case of insolvency at the rate of one peso a day. The Philippine Legislature has granted to municipalities legislative powers of a dual character, one class mandatory an the other discretionary. Of the first class is the provision of the Administrative Code which makes it the duty of the municipal council, conformably with law, "to prohibit and penalize . . . gambling." (Sec. 2188 [i], Adm. Code of 1916; sec. 2242 [i], Adm. Code of 1917.) This is a more restricted power than that found in the original Municipal Code which authorized a municipal council to "provide against the evils of gambling, gambling houses, and disorderly houses of whatsoever sort." (Act No. 82, sec. 39 [u].) The present municipal law, since making use of the word "gambling," must be construed with reference to the Insular Law, Act No. 1757, relating to the same subject. Act No. 1757 in section 1 defines "gambling" as "the paying of any game for money or any representative of value or valuable consideration or thing, the result of which game depends wholly or chiefly upon chance or hazard, or the use of any mechanical inventions or contrivance to determine by chance the loser or winner of money or of any representative of value or of any valuable consideration or thing." In the United States vs. Hilario ([1913], 24 Phil., 392), the Supreme Court went into the subject of the meaning of "gambling" in this jurisdiction, and found that it includes those games the result of which depend wholly or chiefly upon chance or hazard, and excludes those games the result of which depend wholly or chiefly upon skill, with the result that sections 621 to 625 of the Revise Ordinances of the city of Manila (734-738 of the Revised Ordinances of 1917) were found to prohibit only games of chance or hazard. The ordinance of Orion, Bataan, merely prohibits the playing of panguingue on certain days, without describing it. Further, although this court has considered the method by which many other games are played, it has never as yet authoritatively decided whether panguingue was a game of skill or hazard. Nor was any evidence on this point introduced in the present case. However, a reading of the decision of the trial court and of official opinions of two AttorneysGeneral, of which we can take judicial cognizance, warrants the deduction that panguingue is not a game of chance or hazard and is not prohibited by Act No. 1757. (See Opinions of the Attorney-General of July 11, 1904; July 25, 1904; October 10, 1905; and September 7, 1911; also Berriz, Diccionario de la Administracion, p. 35.) If, therefore, we were to restrict our investigation to those portions of the Administrative Code which authorize a municipal council to prohibit and penalize gambling, there would exist grave doubt, to say the least, of the validity of ordinance No. 3 of the municipality of Orion, Bataan. There remains for consideration a different approach to the question. While Philippine law gives to gambling a restricted meaning, it is to be noted that, in its broader signification, gambling relates to play by certain rules at cards, dice, or other contrivance, so that one shall be the loser an the other the winner. (20 Cyc., 878; Bouvier's Law Dictionary; People vs. Todd [1889], 51 Hun [N. Y.], 446 451; 4 N. Y. Supp., 25.) As one example the Charter of the town of Ruston, State of Louisiana, authorized it "to restrain, prohibit,

an suppress . . . games and gambling houses and rooms . . ., and to provide for the punishment of the persons engaged in the same." Under this power the town passed an ordinance prohibiting "all games of chance, lottery, banking games, raffling, and all other species of gambling," indicating that there were other species of gambling in addition to games of chance. (See Town of Ruston vs. Perkins [1905], 114 La., 851.) The common law notion of gambling, which only made it an indictable offense when the play was attended by such circumstances as would in themselves amount to a riot or a nuisance or to an actual breach of the peace, has given way to statutes and ordinances designed to restrain, suppress, or control gambling. Authority for the State or a municipality to take action to control gambling in this larger sense can be found in an analysis of what is calle the police power. Any attempt to define the police power with circumstantial precision would savor of pedantry. The United States Supreme Court tritely describes it as "the most essential of all powers, at times the most insistent, an always one of least limitable of the powers of government." (District of Columbia vs. Brooks [1909], 214 U.S., 138.) The police power is based on the maxim "salus populi est suprema lex" the welfare of the people is the first law. The United States Supreme Court has said that it extends "to the protection of the lives, health and property of the citizens, and to the preservation of good order and the public morals." (Beer Co. vs. Massachusetts [1878] , 97 U.S., 25; Barbier vs. Connolly [1885], 113 U.S., 27.) The Supreme Court of these Islands has said that it extends "the police power of the state includes not only the public health safety, but also the public welfare, protection against impositions, and generally the public's best interest." (U.S. vs. Pompeya [1915], 31 Phil., 245.) Recent judicial decisions incline to give a more extensive scope to the police power that the older cases. The public welfare is rightfully made the basis of construction. Not only does the State effectuate its purposes through the exercise of the police power but the municipality does also. Like the State, the police power of a municipal corporation extends to all matters affecting the peace, order, health, morals, convenience, comfort, and safety of its citizens the security of social order the best and highest interests of the municipality. (Case vs. Board of Health of Manila and Heiser [1913], 24 Phil., 250.) The best considered decisions have tended to broaden the scope of action of the municipality in dealing with police offenses. Within the general police powers of a municipal corporation is the suppression of gambling. Ordinances aimed in a reasonable way at the accomplishment of this purpose are undoubtedly valid. (See U.S. vs. Pacis [1915], 31 Phil., 524; 39 L. R. A., 523, Note; Cooley's Constitutional Limitations, 6th edition, pp. 138, 226, 742; Greenville vs. Kemmis [1900], 58 S. C., 427 [holding that under the general welfare clause a city may pass an ordinance prohibiting gambling in any private house].) The Philippine Legislature, as before intimated, delegated to municipalities certain legislative powers are named specifically. But in addition, and preceding both the specific powers of a mandatory and discretionary character, is the general power of a municipal council to enact ordinances and make regulations. It is this grant that the preamble of the ordinance of Orion assigns as authority for its enactment. Said section 2184 of the Administrative Code of 1916 (sec. 2238, Adm. Code of 1917) reads:

The municipal council shall enact such ordinances and make such regulations, not repugnant to law, as may be necessary to carry into effect and discharge the powers an duties conferred upon it by law an such as shall seem necessary and proper to provide for the health and safety, promote the prosperity, improve the morals, peace, good order, comfort, and convenience of the municipality and the inhabitants thereof, and for the protection of property therein. This section, known as the general welfare clause, delegates in statutory form the police power to a municipality. As above stated, this clause has been given wide application by municipal authorities and has in its relation to the particular circumstances of the case been liberally construed by the courts. Such, it is well to recall, is the progressive view of Philippine jurisprudence. The general welfare clause has two branches. One branch attaches itself to the main trunk of municipal authority, and relates to such ordinances and regulations as may be necessary to carry into effect and discharge the powers and duties conferred upon the municipal council by law. With this class we are not here directly concerned. The second branch of the clause is much more independent of the specific functions of the council which are enumerated by law. It authorizes such ordinances "as shall seem necessary and proper to provide for the health and safety, promote the prosperity, improve the morals, peace, good order, comfort, and convenience of the municipality and the inhabitants thereof, and for the protection of property therein." It is a general rule that ordinances passed by virtue of the implied power found in the general powers and purposes of the corporation, and not inconsistent with the laws or policy of the State. The ordinance of the municipality of Orion does not seem in itself to be pernicious, or unreasonable or discriminatory. Its purposes evidently are to improve the morals and stimulate the industry of the people. A person is to be compelled to refrain from private acts injurious both to himself an his neighbors. These objects, to be attained by limiting the pastime to definite days, do not infringe any law of the general government. The constitutional provision that no person shall be deprived of liberty without due process of law is not violated by this ordinance. Liberty of action by the individual is not unduly circumscribed; that is, it is not unduly circumscribed if we have in mind the correct notion of this "the greatest of all rights." That gravest of sociological questions How far, consistently with freedom, may the liberties of the individual member of society be subordinated to the will of the Government? has been debated for centuries, in vain, if we can not now discount the time worn objection to any and all interference with private rights in order to effectuate the public purpose. (See Jacobson vs. Massachusetts [1905], 197 U. S., 11; State vs. Kreutzberg [1902], 58 L. R. A., 748.) Almost countless are the governmental restrictions on the citizen. The presumption is all favor of validity. The inhabitants of a municipality are in themselves miniature states. The action of the elected representatives of the people cannot be lightly set aside. The councilors must, in the very nature of things, be familiar with the necessities of their particular municipality an with all the facts and circumstances which surround the subject, and necessities of their particular municipality and with all the facts and circumstances which surround the subject, and necessitate action. The local legislative body, by

enacting the ordinance, has in effect given notice that the regulations are essential to the well being of the people. Who is in a better position to say whether the playing of panguingue is deleterious to social order and the public interest in a certain municipality the municipal council, or the courts? The answer is self-evident. The Judiciary should not lightly set aside legislative action when there is not a clear invasion of personal or property rights under the guise of police regulation. (See U.S. vs. Joson [1913], 26 Phil., 1.) President McKinley's Instructions to the Commission still remain undisturbed by subsequent Acts of Congress dealing with Philippine affairs and yet constitute a portion of our constitutional law, as to the inviolable rule that "municipal governments . . . shall be afforded the opportunity to manage their own affairs to the fullest extent of which they are capable." Again the same organic law says, "In the distribution of powers among the governments organized by the Commission, the presumption is always to be in favor of the smaller subdivision, so that all the powers which can properly be exercised by the municipal government shall be vested in that government . . . ." Let us never forget these principles so highly protective of local selfgovernment. The judiciary can very well take notice of the fact that municipalities are accustomed to enacting ordinances aimed at the regulation of gambling. The executive authorities an the Attorney-General have usually upheld the validity of such ordinances, especially those intended to restrict the playing of panguingue. (Opinions of the Attorney-General, supra; Opinion of the Executive Secretary, July 6, 1909; Indorsement of the Governor-General, July 21, 1904.) This general municipal practice, indicative of a social cancer to be eradicated, should not be discouraged by strict judicial construction. More important still, the courts cannot but realize that gambling, in its larger sense as well as in its restricted sense, is an act beyond the pale of good morals, which, for the welfare of the Filipino people, should be exterminated. The suppression of the evil does not interfere with any of the inherent rights of citizenship. The pernicious practice is rightfully regarded as the offspring of idleness and the prolific parent of vice and immorality, demoralizing in its association and tendencies, detrimental to the best interests of society, and encouraging wastefulness, thriftlessness, and a belief that a livelihood may be earned by other means than honest industry. To be condemned in itself, it has the further effect of causing poverty, dishonesty, fraud, and deceit. Many a man has neglected his business and mortgaged his integrity to follow the fickle Goddess of the cards. Many a woman has wasted her hours and squandered her substance at the gambling board while home and children were forgotten. It is highly proper that this pastime should be subject to the control of restraints imposed by the ordinances of local governments peculiarly afflicted by the evil. (See In re Voss [1903], 11 N. D., 540; Ex parte Tuttle [1891], 91, Cal., 589; Greenwood vs. State [1873], 6 Baxt., 567; 32 Am. Rep., 539; 12 R. C. L., 709-715.) For the suppression of such an evil, coordinate and harmonious action must concur between the three departments of Government. A law or ordinance enacted by the legislative body must exist. Such an ordinance is before us. Vigorous executive enforcement must take place to make the law or ordinance a reality. Such activity by the police has brought this case to the courts. And finally the Judiciary, having full respect for the legislative action of the

municipal council and for the prosecution by the executive officials, must, by judicial construction, equally as progressive and constructive, give effect to the action of the other two powers. Wherefore, although panguingue is not entirely a game of chance, since it is a proper subject for regulation by municipal authorities acting under their delegated police power, whose laudable intention is to improve the public morals and promote the prosperity of their people, their action should be upheld by the courts. Ordinance No. 3 of Orion, Bataan, is found to be valid. The culprit in this case is himself a member of the Judiciary. Instead of enforcing the law, he has scorned it. His example to the people of Orion has been pernicious in its influence. If gambling is to be suppressed, not only the weak and ignorant must be punished, but those with full knowledge of the law and the consequences of violation. We would accordingly suggest to Courts of First Instance that in all cases arising under the Gambling Law or ordinances, except for unusual circumstances, a prison sentence should be imposed, if permitted by the law or ordinance. We further suggest that, where the defendant has been found guilty and is a man of station, he be given the maximum penalty.lawphil.net Applying the foregoing in this instance, it results that the defendant and appellant must be found guilty of a violation of ordinance No. 3 of the municipality of Orion, Bataan; and, in accordance therewith, shall be sentenced to the maximum penalty of the payment of a fine of P200, or to subsidiary imprisonment in case of insolvency, with the costs of all three instances against him. So ordered. eparate Opinions

JOHNSON, J., concurring: I concur upon the ground that the ordinance in question is fully authorized under the "general welfare" provisions of the Municipal Code. STREET, J., concurring: I agree in the conclusion that the ordinance passed by the municipality of Orion prohibiting the playing of panguingue on secular days is valid and am of the opinion that the authority to pass such an ordinance is to be found exclusively in section 2184 of the Administrative Code (1916), which gives a general authority for the enactment of ordinances which seem proper to improve the morals and good order of the community. As the game of panguingue is admittedly not a game of chance or hazard played for money, it is not within the prohibitions of Act No. 1757; an I think the case should be determined without reference to the legislation against gambling and without reference t the circumstance that under subsection (i) of section 2188 of the same Code the Legislature has made it mandatory upon municipal councils to prohibit and penalize gambling.

The legislature has clearly authorized the municipal council to use its discretion as to the measures which it esteems desirable to promote morals an good order; and I know of no rule of law which would justify any court in overruling that discretion in such a matter as is now before us. Certainly I would be sorry to see this court adopt a paternalistic attitude of captious criticism and correction tending to embarrass the free exercise of the legislative discretion vested by law in the municipal councils. Those bodies are undoubtedly destined to make mistakes in the exercise of the powers conferred on them, but there is no better school than that of experience in which their members may discover what is most likely to promote the welfare of the community and the interests of their constituents. As already suggested, I think that the Gambling Law (Act No. 1757) and the provisions of the Municipal Code relative to the suppression of gambling, strictly speaking, have nothing to do with the case; and the circumstance that those measures are upon the statute book cannot serve in the slightest degree to limit the powers of a municipal council in legislating upon a matter not implicated with gambling. From the preamble to the ordinance it may be seen that the council had in view the promotion of the general well-being and the advancement of prosperity in the community; and the ordinance was doubtless intended to discourage the playing of games which involve a frivolous and idle waste of time, rather than directly to suppress gambling. But even if the council had suppose that the games which it proposed to regulate are calculated to foment the gambling instinct and should be suppressed for that reason, the ordinance in question could not possibly have been rendered invalid by that fact. FISHER, J., dissenting: The importance of suppressing gambling, properly emphasized in the majority opinion, cannot warrant a conviction where gambling is not involved. The zeal to remedy an evil should not induce the graver evil of obliterating legal landmarks. Gambling is the playing, for money or its equivalent, of any game of which the result depends "wholly or chiefly upon chance or hazard, . . . ." (Act No. 1757). The defendant herein is accused of playing panguingue, which is avowedly not a game of chance or hazard within this definition. It is not alleged in the information that the playing was for money or any other thing of value. The fact that some money was found on the table when the accused was arrested is immaterial in this case. The ordinance under which the conviction was had does not make playing the prohibited games for money an ingredient of the offense, and the decision of the majority proceeds upon the theory that the result would have been the same had no money been staked upon the game. To play a game of skill without risking anything upon the outcome is not gambling, and the prohibition of harmless amusements cannot be justified by the authority to prohibit gambling. In recognition of the fact that the ordinance upon which is based this prosecution goes beyond the terms of the statutory authority, it is sought to find power to pass the same under the general welfare clause (section 2238, Administrative Code of 1917). But the ordinance which imposes a fine and imprisonment upon a man and wife who play a game of cards together as

mere pastime, in their own home, without risking a cent upon the outcome, is beyond the protection of such general provision for two reasons. In the first place, it is unreasonably subversive of the liberty of the citizen an unnecessary. In the second place, the Legislature of the Islands has spoken in well defined terms on the subject of gambling, and its pronouncement on the subject fills the field and precludes the possibility of stretching the authority delegated to municipalities into the right to repeal, modify, or supplement existing legislation. The subject of gambling has merited the attention of our Legislature and Act No. 1757 very clearly defines the intention and will of that body in the premises. Its limitation of the prohibition is its refusal to prohibit games of skill and games in which no value is at stake, and is the exact equivalent of a pronouncement that non-gambling pastimes shall not be prohibited. When the legislature authorized municipalities to "penalize . . . . gambling" it was aiming at the vice of risking money upon the hazard of a game of chance. The Legislature has not prohibited the playing of card games in itself an innocent pastime but the playing for money of games of hazard. When it delegated like power to municipalities it had a like object in view and not other. Equally untenable, to my mind, is the attempt to justify the statute under the "general welfare" clause. The prohibition by ordinance of the playing of certain card games as an amusement, without stake or wager, cannot be said to promote the health, safety, morals, peace, good order, comfort or convenience of the inhabitants of a municipality. The majority opinion contends that the purpose of the enactment was to "improve the morals and stimulate the industry of the people." Unfortunately for that theory it appears that the ordinance expressly permits these "immoral" diversions on Sundays and official holidays. I am unable to see how one's morals are to be improved by permitting him to play panguingue, poker or burro all day Sunday, and then sending him to jail for engaging in the same amusement Monday evening. So far as the "stimulation of . . . industry" is concerned, that argument might have had some weight if the prohibition of these amusements had been limited to working hours. But such is not the case. The inhabitants of Orion may play poker without a wager to their heart's content on Sunday, but to do it Saturday evening, after the work of the week is over, is prohibited their morals are to be "improved" and their industry "stimulated" until midnight. After that they may yield to their depraved instincts until midnight of Sunday, without let or hindrance. I submit that it is obvious that the ordinance in question was intended to prevent gambling, but is not warranted by the delegated authority of municipal councils over this subject, because it is so drawn as to include harmless amusements not within the legislative definition of gambling. By limiting the definition and prohibition of gambling to the playing for money of games of hazard, the Legislature by implication permitted the playing of all other games not within the prohibition. Is the "general welfare" clause of grant of power to municipal corporation to be so construed as to make the express delegation of power redundant and useless? If under the general welfare clause the playing of whist or chess in one's own house, not for money, but merely for amusement, may be prohibited under the general welfare clause, certainly the power "to penalize and prohibit . . . gambling" must have been included in that clause. If so, the special grant relating to gambling is merely redundant.

I submit that when a special power to enact ordinances is granted to a municipal council upon a particular subject, the power as to that matter is to be measured by the express grant, without enlargement by the interpretation of the general "welfare clause." The express grant of power to regulate public dance halls (section 2243 [k], Administrative Code of 1917) is not be expanded under the general "welfare clause" so as to authorize the prohibition and penalizing of dancing in private houses. The express grant of power to establish and maintain streets cannot be expanded, under the general welfare clause, this court has held, so as to authorize an ordinance to compel citizen to clean the streets. (U.S. vs. Gaspay, 33 Phil. Rep., 96.) I think the law on this subject is correctly expressed in Judge Dillon's authoritative work on Municipal Corporations as follows: When there are both special and general provisions, the power to pass by-laws under the special or express grant can only be exercised in the cases and to the extent, as respects those matters, allowed by the charter or incorporating act; and the power to pass by-laws under the general clause does not enlarge or annul the power conferred by the special provisions in relation to their various subject matters, but gives authority to pass by-laws, reasonable in their character, upon all other matters within the scope of their municipal authority, and not repugnant to the Constitution and general laws of the State. But if we disregard entirely the delegated power relating to the prohibition of gambling and consider the matter from the standpoint of the general welfare clause alone, it seems equally clear to me that the ordinance in question is void as being contrary to the public legislative policy, as established by the Philippine Legislature. In Dillon on Municipal Corporations (fifth edition, paragraph 601) it is said: . . . A municipal corporation . . . cannot, in virtue of its incidental power to pass-bylaws, or under any general grant of that authority, adopt by-laws which infringe the spirit or are repugnant to the policy of the State as declared in its general legislation. This principle is well exemplified by a case in Ohio (Marietta vs. Fearing, 4 Ohio, 427) in which incorporated towns were, by statute, prohibited from subjecting stray animals owned by persons not residents of such town to their corporation ordinances. It was held that an ordinance operating, not on the animals but on the non-resident owner, in the shape of a penalty, violated the spirit of the statute, and was void. So, in a later case in the same State, it was shown that the general policy of the State was to allow animals to run at large; and it was ruled that a municipal corporation with power to pass "all by-laws deemed necessary for the well-regulation, health, cleanliness & c.," of the borough, and with power to "abate nuisances," had no authority to pass a by-law restraining cattle from running at large, such a by-law being in contravention of the general law of the State. (Collins vs. Hatch, 18 Ohio, 523.) The public legislative policy is to permit the playing of card games as an amusement, without wagers upon the outcome. That is shown by the language of Act No. 1757, which, by limiting the prohibition of gambling to games of chance or hazard played for money, by implication permits the playing of games not prohibited, and by the fact that the Tariff Act in

force (section 3) by prohibiting the importation of marked cards impliedly authorizes the importation of others. Panguingue playing may be so harmful to the people of this country that the playing of it at any time, at any place, with or without the wagering of money, should be prohibited. If that is so the Legislature should prohibit it. Some people regard dancing and billiards as equally harmful. If such people happen to control a given municipal council we may see respectable citizens in jail for the offense of dancing in their own homes, for playing casino or billiards, or ping-pong, or for engaging in any other amusement which, while not prohibited by any general law, may be prohibited in any municipality under this omnibus general welfare clause.

United States vs Luis Toribio

22 11 2010

Police Power Sometime in the 1900s, Toribio applied for a license to have his carabao be slaughtered. His request was denied because his carabao is found not to be unfit for work. He nevertheless slaughtered his carabao without the necessary license. He was eventually sued and was sentenced by the trial court. His counsel in one way or the other argued that the law mandating that one should acquire a permit to slaughter his carabao is not a valid exercise of police power. ISSUE: Whether or not the said law is valid. HELD: The SC ruled against Toribio. The SC explained that it is not a taking of the property for public use, within the meaning of the constitution, but is a just and legitimate exercise of the power of the legislature to regulate and restrain such particular use of the property as would be inconsistent with or injurious to the rights of the publics. All property is acquired and held under the tacit condition that it shall not be so used as to injure the equal rights of others or greatly impair the public rights and interests of the community. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-5060 January 26, 1910

THE UNITED STATES, plaintiff-appellee, vs. LUIS TORIBIO, defendant-appellant.

Rodriguez & Del Rosario, for appellant. Attorney-General Villamor, for appellee. CARSON, J.: The evidence of record fully sustains the findings of the trial court that the appellant slaughtered or caused to be slaughtered for human consumption, the carabao described in the information, without a permit from the municipal treasure of the municipality wherein it was slaughtered, in violation of the provisions of sections 30 and 33 of Act No. 1147, an Act regulating the registration, branding, and slaughter of large cattle. It appears that in the town of Carmen, in the Province of Bohol, wherein the animal was slaughtered there is no municipal slaughterhouse, and counsel for appellant contends that under such circumstances the provisions of Act No. 1147 do not prohibit nor penalize the slaughter of large cattle without a permit of the municipal treasure. Sections 30, 31, 32, and 33 of the Act are as follows: SEC. 30. No large cattle shall be slaughtered or killed for food at the municipal slaughterhouse except upon permit secured from the municipal treasure. Before issuing the permit for the slaughter of large cattle for human consumption, the municipal treasurer shall require for branded cattle the production of the original certificate of ownership and certificates of transfer showing title in the person applying for the permit, and for unbranded cattle such evidence as may satisfy said treasurer as to the ownership of the animals for which permit to slaughter has been requested. SEC. 31. No permit to slaughter has been carabaos shall be granted by the municipal treasurer unless such animals are unfit for agricultural work or for draft purposes, and in no event shall a permit be given to slaughter for food any animal of any kind which is not fit for human consumption. SEC. 32. The municipal treasurer shall keep a record of all permits for slaughter issued by him, and such record shall show the name and residence of the owner, and the class, sex, age, brands, knots of radiated hair commonly know as remolinos or cowlicks, and other marks of identification of the animal for the slaughter of which permit is issued and the date on which such permit is issued. Names of owners shall be alphabetically arranged in the record, together with date of permit. A copy of the record of permits granted for slaughter shall be forwarded monthly to the provincial treasurer, who shall file and properly index the same under the name of the owner, together with date of permit. SEC. 33. Any person slaughtering or causing to be slaughtered for human consumption or killing for food at the municipal slaughterhouse any large cattle except upon permit duly secured from the municipal treasurer, shall be punished by a fine of not less than ten nor more than five hundred pesos, Philippine currency, or by imprisonment for not less than one month nor more than six months, or by both such fine and imprisonment, in the discretion of the court.

It is contended that the proper construction of the language of these provisions limits the prohibition contained in section 30 and the penalty imposed in section 33 to cases (1) of slaughter of large cattle for human consumption in a municipal slaughter without a permit duly secured from the municipal treasurer, and (2) cases of killing of large cattle for food in a municipal slaughterhouse without a permit duly secured from the municipal treasurer; and it is urged that the municipality of Carmen not being provided with a municipal slaughterhouse, neither the prohibition nor the penalty is applicable to cases of slaughter of large cattle without a permit in that municipality. We are of opinion, however, that the prohibition contained in section 30 refers (1) to the slaughter of large cattle for human consumption, anywhere, without a permit duly secured from the municipal treasurer, and (2) expressly and specifically to the killing for food of large cattle at a municipal slaughterhouse without such permit; and that the penalty provided in section 33 applies generally to the slaughter of large cattle for human consumption, anywhere, without a permit duly secured from the municipal treasurer, and specifically to the killing for food of large cattle at a municipal slaughterhouse without such permit. It may be admitted at once, that the pertinent language of those sections taken by itself and examined apart from the context fairly admits of two constructions: one whereby the phrase at the municipal slaughterhouse may be taken as limiting and restricting both the word slaughtered and the words killed for food in section 30, and the words slaughtering or causing to be slaughtered for human consumption and the words killing for food in section 33; and the other whereby the phrase at the municipal slaughterhouse may be taken as limiting and restricting merely the words killed for food and killing for food as used in those sections. But upon a reading of the whole Act, and keeping in mind the manifest and expressed purpose and object of its enactment, it is very clear that the latter construction is that which should be adopted. The Act primarily seeks to protect the large cattle of the Philippine Islands against theft and to make easy the recovery and return of such cattle to their proper owners when lost, strayed, or stolen. To this end it provides an elaborate and compulsory system for the separate branding and registry of ownership of all such cattle throughout the Islands, whereby owners are enabled readily and easily to establish their title; it prohibits and invalidates all transfers of large cattle unaccompanied by certificates of transfer issued by the proper officer in the municipality where the contract of sale is made; and it provides also for the disposition of thieves or persons unlawfully in possession, so as to protect the rights of the true owners. All this, manifestly, in order to make it difficult for any one but the rightful owner of such cattle to retain them in his possession or to dispose of them to others. But the usefulness of this elaborate and compulsory system of identification, resting as it does on the official registry of the brands and marks on each separate animal throughout the Islands, would be largely impaired, if not totally destroyed, if such animals were requiring proof of ownership and the production of certificates of registry by the person slaughtering or causing them to be slaughtered, and this especially if the animals were slaughtered privately or in a clandestine manner outside of a municipal slaughterhouse. Hence, as it would appear, sections 30 and 33 prohibit and penalize the slaughter for human consumption or killing for food at a municipal slaughterhouse of such animals without a permit

issued by the municipal treasurer, and section 32 provides for the keeping of detailed records of all such permits in the office of the municipal and also of the provincial treasurer. If, however, the construction be placed on these sections which is contended for by the appellant, it will readily be seen that all these carefully worked out provisions for the registry and record of the brands and marks of identification of all large cattle in the Islands would prove in large part abortion, since thieves and persons unlawfully in possession of such cattle, and naturally would, evade the provisions of the law by slaughtering them outside of municipal slaughterhouses, and thus enjoy the fruits of their wrongdoing without exposing themselves to the danger of detection incident to the bringing of the animals to the public slaughterhouse, where the brands and other identification marks might be scrutinized and proof of ownership required. Where the language of a statute is fairly susceptible of two or more constructions, that construction should be adopted which will most tend to give effect to the manifest intent of the lawmaker and promote the object for which the statute was enacted, and a construction should be rejected which would tend to render abortive other provisions of the statute and to defeat the object which the legislator sought to attain by its enactment. We are of opinion, therefore, that sections 30 and 33 of the Act prohibit and penalize the slaughtering or causing to be slaughtered for human consumption of large cattle at any place without the permit provided for in section 30. It is not essential that an explanation be found for the express prohibition in these sections of the killing for food at a municipal slaughterhouse of such animals, despite the fact that this prohibition is clearly included in the general prohibition of the slaughter of such animals for human consumption anywhere; but it is not improbable that the requirement for the issue of a permit in such cases was expressly and specifically mentioned out of superabundance of precaution, and to avoid all possibility of misunderstanding in the event that some of the municipalities should be disposed to modify or vary the general provisions of the law by the passage of local ordinances or regulations for the control of municipal slaughterhouse. Similar reasoning applied to the specific provisions of section 31 of the Act leads to the same conclusion. One of the secondary purposes of the law, as set out in that section, is to prevent the slaughter for food of carabaos fit for agricultural and draft purposes, and of all animals unfit for human consumption. A construction which would limit the prohibitions and penalties prescribed in the statute to the killing of such animals in municipal slaughterhouses, leaving unprohibited and unpenalized their slaughter outside of such establishments, so manifestly tends to defeat the purpose and object of the legislator, that unless imperatively demanded by the language of the statute it should be rejected; and, as we have already indicated, the language of the statute is clearly susceptible of the construction which we have placed upon it, which tends to make effective the provisions of this as well as all the other sections of the Act. It appears that the defendant did in fact apply for a permit to slaughter his carabao, and that it was denied him on the ground that the animal was not unfit for agricultural work or for draft purposes. Counsel for appellant contends that the statute, in so far as it undertakes to penalize the slaughter of carabaos for human consumption as food, without first obtaining a permit which can not be procured in the event that the animal is not unfit for agricultural work or draft purposes, is unconstitutional and in violation of the terms of section 5 of the Philippine Bill

(Act of Congress, July 1, 1902), which provides that no law shall be enacted which shall deprive any person of life, liberty, or property without due process of law. It is not quite clear from the argument of counsel whether his contention is that this provision of the statute constitutes a taking of property for public use in the exercise of the right of eminent domain without providing for the compensation of the owners, or that it is an undue and unauthorized exercise of the police power of the State. But whatever may be the basis of his contention, we are of opinion, appropriating, with necessary modifications understood, the language of that great jurist, Chief Justice Shaw (in the case of Com. vs. Tewksbury, 11 Met., 55, where the question involved was the constitutionality of a statute prohibiting and penalizing the taking or carrying away by any person, including the owner, of any stones, gravel, or sand, from any of the beaches in the town of Chesea,) that the law in question is not a taking of the property for public use, within the meaning of the constitution, but is a just and legitimate exercise of the power of the legislature to regulate and restrain such particular use of the property as would be inconsistent with or injurious to the rights of the public. All property is acquired and held under the tacit condition that it shall not be so used as to injure the equal rights of others or greatly impair the public rights and interest of the community. It may be conceded that the benificial use and exclusive enjoyment of the property of all carabao owners in these Islands is to a greater or less degree interfered with by the provisions of the statute; and that, without inquiring what quantum of interest thus passes from the owners of such cattle, it is an interest the deprivation of which detracts from their right and authority, and in some degree interferes with their exclusive possession and control of their property, so that if the regulations in question were enacted for purely private purpose, the statute, in so far as these regulations are concerned, would be a violation of the provisions of the Philippine Bill relied on be appellant; but we are satisfied that it is not such a taking, such an interference with the right and title of the owners, as is involved in the exercise by the State of the right of eminent domain, so as to entitle these owners to compensation, and that it is no more than a just restrain of an injurious private use of the property, which the legislature had authority to impose. In the case of Com. vs. Alger (7 Cush., 53, 84), wherein the doctrine laid down in Com. vs. Tewksbury (supra) was reviewed and affirmed, the same eminent jurist who wrote the former opinion, in distinguishing the exercise of the right of eminent domain from the exercise of the sovereign police powers of the State, said: We think it is settled principle, growing out of the nature of well-ordered civil society, that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it may be so regulated that is shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community. . . . Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable restrain and regulations establish by law, as the legislature, under the governing and controlling power vested in them by the constitution, may think necessary and expedient. This is very different from the right of eminent domain, the right of a government to take and appropriate private property to public use, whenever the public exigency requires it; which can

be done only on condition of providing a reasonable compensation therefor. The power we allude to is rather the police power, the power vested in the legislature by the constitution, to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same. It is much easier to perceive and realize the existence and sources of this power than to mark its boundaries or prescribe limits to its exercise. Applying these principles, we are opinion that the restrain placed by the law on the slaughter for human consumption of carabaos fit for agricultural work and draft purpose is not an appropriation of property interests to a public use, and is not, therefore, within the principle of the exercise by the State of the right of eminent domain. It is fact a mere restriction or limitation upon a private use, which the legislature deemed to be determental to the public welfare. And we think that an examination of the general provisions of the statute in relation to the public interest which it seeks to safeguard and the public necessities for which it provides, leaves no room for doubt that the limitations and restraints imposed upon the exercise of rights of ownership by the particular provisions of the statute under consideration were imposed not for private purposes but, strictly, in the promotion of the general welfare and the public interest in the exercise of the sovereign police power which every State possesses for the general public welfare and which reaches to every species of property within the commonwealth. For several years prior to the enactment of the statute a virulent contagious or infectious disease had threatened the total extinction of carabaos in these Islands, in many sections sweeping away seventy, eighty, and in some cases as much as ninety and even one hundred per cent of these animals. Agriculture being the principal occupation of the people, and the carabao being the work animal almost exclusively in use in the fields as well as for draft purposes, the ravages of the disease with which they were infected struck an almost vital blow at the material welfare of the country. large areas of productive land lay waste for years, and the production of rice, the staple food of the inhabitants of the Islands, fell off to such an extent that the impoverished people were compelled to spend many millions of pesos in its importation, notwithstanding the fact that with sufficient work animals to cultivate the fields the arable rice lands of the country could easily be made to produce a supply more that sufficient for its own needs. The drain upon the resources of the Islands was such that famine soon began to make itself felt, hope sank in the breast of the people, and in many provinces the energies of the breadwinners seemed to be paralyzed by the apparently hopeless struggle for existence with which they were confronted. To meet these conditions, large sums of money were expended by the Government in relieving the immediate needs of the starving people, three millions of dollars were voted by the Congress of the United States as a relief or famine fund, public works were undertaken to furnish employment in the provinces where the need was most pressing, and every effort made to alleviate the suffering incident to the widespread failure of the crops throughout the Islands, due in large measure to the lack of animals fit for agricultural work and draft purposes. Such measures, however, could only temporarily relieve the situation, because in an agricultural community material progress and permanent prosperity could hardly be hoped for in the absence

of the work animals upon which such a community must necessarily rely for the cultivation of the fields and the transportation of the products of the fields to market. Accordingly efforts were made by the Government to increase the supply of these animals by importation, but, as appears from the official reports on this subject, hope for the future depended largely on the conservation of those animals which had been spared from the ravages of the diseased, and their redistribution throughout the Islands where the need for them was greatest. At large expense, the services of experts were employed, with a view to the discovery and applications of preventive and curative remedies, and it is hoped that these measures have proved in some degree successful in protecting the present inadequate supply of large cattle, and that the gradual increase and redistribution of these animals throughout the Archipelago, in response to the operation of the laws of supply and demand, will ultimately results in practically relieving those sections which suffered most by the loss of their work animals. As was to be expected under such conditions, the price of carabaos rapidly increase from the three to five fold or more, and it may fairly be presumed that even if the conservative measures now adopted prove entirely successful, the scant supply will keep the price of these animals at a high figure until the natural increase shall have more nearly equalized the supply to the demand. Coincident with and probably intimately connected with this sudden rise in the price of cattle, the crime of cattle stealing became extremely prevalent throughout the Islands, necessitating the enactment of a special law penalizing with the severest penalties the theft of carabaos and other personal property by roving bands; and it must be assumed from the legislative authority found that the general welfare of the Islands necessitated the enactment of special and somewhat burdensome provisions for the branding and registration of large cattle, and supervision and restriction of their slaughter for food. It will hardly be questioned that the provisions of the statute touching the branding and registration of such cattle, and prohibiting and penalizing the slaughter of diseased cattle for food were enacted in the due and proper exercise of the police power of the State; and we are of opinion that, under all the circumstances, the provision of the statute prohibiting and penalizing the slaughter for human consumption of carabaos fit for work were in like manner enacted in the due and proper exercise of that power, justified by the exigent necessities of existing conditions, and the right of the State to protect itself against the overwhelming disaster incident to the further reduction of the supply of animals fit for agricultural work or draft purposes. It is, we think, a fact of common knowledge in these Islands, and disclosed by the official reports and records of the administrative and legislative departments of the Government, that not merely the material welfare and future prosperity of this agricultural community were threatened by the ravages of the disease which swept away the work animals during the years prior to the enactment of the law under consideration, but that the very life and existence of the inhabitants of these Islands as a civilized people would be more or less imperiled by the continued destruction of large cattle by disease or otherwise. Confronted by such conditions, there can be no doubt of the right of the Legislature to adopt reasonable measures for the preservation of work animals, even to the extent of prohibiting and penalizing what would, under ordinary conditions, be a perfectly legitimate and proper exercise of rights of ownership and control of the private property of the citizen. The police power rests upon necessity and the right of self-protection and

if ever the invasion of private property by police regulation can be justified, we think that the reasonable restriction placed upon the use of carabaos by the provision of the law under discussion must be held to be authorized as a reasonable and proper exercise of that power. As stated by Mr. Justice Brown in his opinion in the case of Lawton vs. Steele (152 U.S., 133, 136): The extent and limits of what is known as the police power have been a fruitful subject of discussion in the appellate courts of nearly every State in the Union. It is universally conceded to include everything essential to the public safely, health, and morals, and to justify the destruction or abatement, by summary proceedings, of whatever may be regarded as a public nuisance. Under this power it has been held that the State may order the destruction of a house falling to decay or otherwise endangering the lives of passers-by; the demolition of such as are in the path of a conflagration; the slaughter of diseased cattle; the destruction of decayed or unwholesome food; the prohibition of wooden buildings in cities; the regulation of railways and other means of public conveyance, and of interments in burial grounds; the restriction of objectionable trades to certain localities; the compulsary vaccination of children; the confinement of the insane or those afficted with contagious deceases; the restraint of vagrants, beggars, and habitual drunkards; the suppression of obscene publications and houses of ill fame; and the prohibition of gambling houses and places where intoxicating liquors are sold. Beyond this, however, the State may interfere wherever the public interests demand it, and in this particular a large discretion is necessarily vested in the legislature to determine, not only what the interests of the public require, but what measures are necessary for the protection of such interests. (Barbier vs. Connolly, 113 U. S., 27; Kidd vs. Pearson, 128 U. S., 1.) To justify the State in thus interposing its authority in behalf of the public, it must appear, first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations. In other words, its determination as to what is a proper exercise of its police powers is not final or conclusive, but is subject to the supervision of the court. From what has been said, we think it is clear that the enactment of the provisions of the statute under consideration was required by the interests of the public generally, as distinguished from those of a particular class; and that the prohibition of the slaughter of carabaos for human consumption, so long as these animals are fit for agricultural work or draft purposes was a reasonably necessary limitation on private ownership, to protect the community from the loss of the services of such animals by their slaughter by improvident owners, tempted either by greed of momentary gain, or by a desire to enjoy the luxury of animal food, even when by so doing the productive power of the community may be measurably and dangerously affected. Chief Justice Redfield, in Thorpe vs. Rutland & Burlington R. R. Co. (27 Vt., 140), said (p. 149) that by this general police power of the State, persons and property are subjected to all kinds of restraints and burdens, in order to secure the general comfort, health, and prosperity of the State;

of the perfect right in the legislature to do which no question ever was, or, upon acknowledge and general principles, ever can be made, so far as natural persons are concerned. And Cooley in his Constitutional Limitations (6th ed., p. 738) says: It would be quite impossible to enumerate all the instances in which the police power is or may be exercised, because the various cases in which the exercise by one individual of his rights may conflict with a similar exercise by others, or may be detrimental to the public order or safety, are infinite in number and in variety. And there are other cases where it becomes necessary for the public authorities to interfere with the control by individuals of their property, and even to destroy it, where the owners themselves have fully observed all their duties to their fellows and to the State, but where, nevertheless, some controlling public necessity demands the interference or destruction. A strong instance of this description is where it becomes necessary to take, use, or destroy the private property of individuals to prevent the spreading of a fire, the ravages of a pestilence, the advance of a hostile army, or any other great public calamity. Here the individual is in no degree in fault, but his interest must yield to that necessity which knows no law. The establishment of limits within the denser portions of cities and villages within which buildings constructed of inflammable materials shall not be erected or repaired may also, in some cases, be equivalent to a destruction of private property; but regulations for this purpose have been sustained notwithstanding this result. Wharf lines may also be established for the general good, even though they prevent the owners of water-fronts from building out on soil which constitutes private property. And, whenever the legislature deem it necessary to the protection of a harbor to forbid the removal of stones, gravel, or sand from the beach, they may establish regulations to that effect under penalties, and make them applicable to the owners of the soil equally with other persons. Such regulations are only a just restraint of an injurious use of property, which the legislature have authority to impose. So a particular use of property may sometimes be forbidden, where, by a change of circumstances, and without the fault of the power, that which was once lawful, proper, and unobjectionable has now become a public nuisance, endangering the public health or the public safety. Milldams are sometimes destroyed upon this grounds; and churchyards which prove, in the advance of urban population, to be detrimental to the public health, or in danger of becoming so, are liable to be closed against further use for cemetery purposes. These citations from some of the highest judicial and text-book authorities in the United States clearly indicate the wide scope and extent which has there been given to the doctrine us in our opinion that the provision of the statute in question being a proper exercise of that power is not in violation of the terms of section 5 of the Philippine Bill, which provide that no law shall be enacted which shall deprive any person of life, liberty, or property without due process of law, a provision which itself is adopted from the Constitution of the United States, and is found in substance in the constitution of most if not all of the States of the Union. The judgment of conviction and the sentence imposed by the trial court should be affirmed with the costs of this instance against the appellant. So ordered. Arellano, C.J., Torres, Johnson, Moreland and Elliott, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-24693 July 31, 1967

ERMITA-MALATE HOTEL AND MOTEL OPERATORS ASSOCIATION, INC., HOTEL DEL MAR INC. and GO CHIU, petitioners-appellees, vs. THE HONORABLE CITY MAYOR OF MANILA, respondent-appellant. VICTOR ALABANZA, intervenor-appellee. Panganiban, Abad and Associates Law Office for respondent-appellant. J. M. Aruego, Tenchavez and Associates for intervenor-appellee. FERNANDO, J.: The principal question in this appeal from a judgment of the lower court in an action for prohibition is whether Ordinance No. 4760 of the City of Manila is violative of the due process clause. The lower court held that it is and adjudged it "unconstitutional, and, therefore, null and void." For reasons to be more specifically set forth, such judgment must be reversed, there being a failure of the requisite showing to sustain an attack against its validity. The petition for prohibition against Ordinance No. 4760 was filed on July 5, 1963 by the petitioners, Ermita-Malate Hotel and Motel Operators Association, one of its members, Hotel del Mar Inc., and a certain Go Chiu, who is "the president and general manager of the second petitioner" against the respondent Mayor of the City of Manila who was sued in his capacity as such "charged with the general power and duty to enforce ordinances of the City of Manila and to give the necessary orders for the faithful execution and enforcement of such ordinances." (par. 1). It was alleged that the petitioner non-stock corporation is dedicated to the promotion and protection of the interest of its eighteen (18) members "operating hotels and motels, characterized as legitimate businesses duly licensed by both national and city authorities, regularly paying taxes, employing and giving livelihood to not less than 2,500 person and representing an investment of more than P3 million."1 (par. 2). It was then alleged that on June 13, 1963, the Municipal Board of the City of Manila enacted Ordinance No. 4760, approved on June 14, 1963 by the then Vice-Mayor Herminio Astorga, who was at the time acting as Mayor of the City of Manila. (par. 3). After which the alleged grievances against the ordinance were set forth in detail. There was the assertion of its being beyond the powers of the Municipal Board of the City of Manila to enact insofar as it would regulate motels, on the ground that in the revised charter of the City of Manila or in any other law, no reference is made to motels; that Section 1 of the challenged ordinance is unconstitutional and void for being unreasonable and violative of due process insofar as it would impose P6,000.00 fee per annum for first class motels and P4,500.00 for second class motels;

that the provision in the same section which would require the owner, manager, keeper or duly authorized representative of a hotel, motel, or lodging house to refrain from entertaining or accepting any guest or customer or letting any room or other quarter to any person or persons without his filling up the prescribed form in a lobby open to public view at all times and in his presence, wherein the surname, given name and middle name, the date of birth, the address, the occupation, the sex, the nationality, the length of stay and the number of companions in the room, if any, with the name, relationship, age and sex would be specified, with data furnished as to his residence certificate as well as his passport number, if any, coupled with a certification that a person signing such form has personally filled it up and affixed his signature in the presence of such owner, manager, keeper or duly authorized representative, with such registration forms and records kept and bound together, it also being provided that the premises and facilities of such hotels, motels and lodging houses would be open for inspection either by the City Mayor, or the Chief of Police, or their duly authorized representatives is unconstitutional and void again on due process grounds, not only for being arbitrary, unreasonable or oppressive but also for being vague, indefinite and uncertain, and likewise for the alleged invasion of the right to privacy and the guaranty against self-incrimination; that Section 2 of the challenged ordinance classifying motels into two classes and requiring the maintenance of certain minimum facilities in first class motels such as a telephone in each room, a dining room or, restaurant and laundry similarly offends against the due process clause for being arbitrary, unreasonable and oppressive, a conclusion which applies to the portion of the ordinance requiring second class motels to have a dining room; that the provision of Section 2 of the challenged ordinance prohibiting a person less than 18 years old from being accepted in such hotels, motels, lodging houses, tavern or common inn unless accompanied by parents or a lawful guardian and making it unlawful for the owner, manager, keeper or duly authorized representative of such establishments to lease any room or portion thereof more than twice every 24 hours, runs counter to the due process guaranty for lack of certainty and for its unreasonable, arbitrary and oppressive character; and that insofar as the penalty provided for in Section 4 of the challenged ordinance for a subsequent conviction would, cause the automatic cancellation of the license of the offended party, in effect causing the destruction of the business and loss of its investments, there is once again a transgression of the due process clause. There was a plea for the issuance of preliminary injunction and for a final judgment declaring the above ordinance null and void and unenforceable. The lower court on July 6, 1963 issued a writ of preliminary injunction ordering respondent Mayor to refrain from enforcing said Ordinance No. 4760 from and after July 8, 1963. In the a answer filed on August 3, 1963, there was an admission of the personal circumstances regarding the respondent Mayor and of the fact that petitioners are licensed to engage in the hotel or motel business in the City of Manila, of the provisions of the cited Ordinance but a denial of its alleged nullity, whether on statutory or constitutional grounds. After setting forth that the petition did fail to state a cause of action and that the challenged ordinance bears a reasonable relation, to a proper purpose, which is to curb immorality, a valid and proper exercise of the police power and that only the guests or customers not before the court could complain of the alleged invasion of the right to privacy and the guaranty against self incrimination, with the assertion that the issuance of the preliminary injunction ex parte was contrary to law, respondent Mayor prayed for, its dissolution and the dismissal of the petition.

Instead of evidence being offered by both parties, there was submitted a stipulation of facts dated September 28, 1964, which reads: 1. That the petitioners Ermita-Malate Hotel and Motel Operators Association, Inc. and Hotel del Mar Inc. are duly organized and existing under the laws of the Philippines, both with offices in the City of Manila, while the petitioner Go Chin is the president and general manager of Hotel del Mar Inc., and the intervenor Victor Alabanza is a resident of Baguio City, all having the capacity to sue and be sued; 2. That the respondent Mayor is the duly elected and incumbent City Mayor and chief executive of the City of Manila charged with the general power and duty to enforce ordinances of the City of Manila and to give the necessary orders for the faithful execution and enforcement of such ordinances; 3. That the petitioners are duly licensed to engage in the business of operating hotels and motels in Malate and Ermita districts in Manila; 4. That on June 13, 1963, the Municipal Board of the City of Manila enacted Ordinance No. 4760, which was approved on June 14, 1963, by Vice-Mayor Herminio Astorga, then the acting City Mayor of Manila, in the absence of the respondent regular City Mayor, amending sections 661, 662, 668-a, 668-b and 669 of the compilation of the ordinances of the City of Manila besides inserting therein three new sections. This ordinance is similar to the one vetoed by the respondent Mayor (Annex A) for the reasons stated in its 4th Indorsement dated February 15, 1963 (Annex B); 5. That the explanatory note signed by then Councilor Herminio Astorga was submitted with the proposed ordinance (now Ordinance 4760) to the Municipal Board, copy of which is attached hereto as Annex C; 6. That the City of Manila derived in 1963 an annual income of P101,904.05 from license fees paid by the 105 hotels and motels (including herein petitioners) operating in the City of Manila.1wph1.t Thereafter came a memorandum for respondent on January 22, 1965, wherein stress was laid on the presumption of the validity of the challenged ordinance, the burden of showing its lack of conformity to the Constitution resting on the party who assails it, citing not only U.S. v. Salaveria, but likewise applicable American authorities. Such a memorandum likewise refuted point by point the arguments advanced by petitioners against its validity. Then barely two weeks later, on February 4, 1965, the memorandum for petitioners was filed reiterating in detail what was set forth in the petition, with citations of what they considered to be applicable American authorities and praying for a judgment declaring the challenged ordinance "null and void and unenforceable" and making permanent the writ of preliminary injunction issued. After referring to the motels and hotels, which are members of the petitioners association, and referring to the alleged constitutional questions raised by the party, the lower court observed: "The only remaining issue here being purely a question of law, the parties, with the nod of the

Court, agreed to file memoranda and thereafter, to submit the case for decision of the Court." It does appear obvious then that without any evidence submitted by the parties, the decision passed upon the alleged infirmity on constitutional grounds of the challenged ordinance, dismissing as is undoubtedly right and proper the untenable objection on the alleged lack of authority of the City of Manila to regulate motels, and came to the conclusion that "the challenged Ordinance No. 4760 of the City of Manila, would be unconstitutional and, therefore, null and void." It made permanent the preliminary injunction issued against respondent Mayor and his agents "to restrain him from enforcing the ordinance in question." Hence this appeal. As noted at the outset, the judgment must be reversed. A decent regard for constitutional doctrines of a fundamental character ought to have admonished the lower court against such a sweeping condemnation of the challenged ordinance. Its decision cannot be allowed to stand, consistently with what has hitherto been the accepted standards of constitutional adjudication, in both procedural and substantive aspects. Primarily what calls for a reversal of such a decision is the absence of any evidence to offset the presumption of validity that attaches to a challenged statute or ordinance. As was expressed categorically by Justice Malcolm: "The presumption is all in favor of validity x x x . The action of the elected representatives of the people cannot be lightly set aside. The councilors must, in the very nature of things, be familiar with the necessities of their particular municipality and with all the facts and circumstances which surround the subject and necessitate action. The local legislative body, by enacting the ordinance, has in effect given notice that the regulations are essential to the well being of the people x x x . The Judiciary should not lightly set aside legislative action when there is not a clear invasion of personal or property rights under the guise of police regulation.2 It admits of no doubt therefore that there being a presumption of validity, the necessity for evidence to rebut it is unavoidable, unless the statute or ordinance is void on its face which is not the case here. The principle has been nowhere better expressed than in the leading case of O'Gorman & Young v. Hartford Fire Insurance Co.,3 where the American Supreme Court through Justice Brandeis tersely and succinctly summed up the matter thus: The statute here questioned deals with a subject clearly within the scope of the police power. We are asked to declare it void on the ground that the specific method of regulation prescribed is unreasonable and hence deprives the plaintiff of due process of law. As underlying questions of fact may condition the constitutionality of legislation of this character, the resumption of constitutionality must prevail in the absence of some factual foundation of record for overthrowing the statute." No such factual foundation being laid in the present case, the lower court deciding the matter on the pleadings and the stipulation of facts, the presumption of validity must prevail and the judgment against the ordinance set aside. Nor may petitioners assert with plausibility that on its face the ordinance is fatally defective as being repugnant to the due process clause of the Constitution. The mantle of protection associated with the due process guaranty does not cover petitioners. This particular manifestation of a police power measure being specifically aimed to safeguard public morals is immune from such imputation of nullity resting purely on conjecture and unsupported by anything of substance. To hold otherwise would be to unduly restrict and narrow the scope of police power

which has been properly characterized as the most essential, insistent and the least limitable of powers,4 extending as it does "to all the great public needs."5 It would be, to paraphrase another leading decision, to destroy the very purpose of the state if it could be deprived or allowed itself to be deprived of its competence to promote public health, public morals, public safety and the genera welfare.6 Negatively put, police power is "that inherent and plenary power in the State which enables it to prohibit all that is hurt full to the comfort, safety, and welfare of society.7 There is no question but that the challenged ordinance was precisely enacted to minimize certain practices hurtful to public morals. The explanatory note of the Councilor Herminio Astorga included as annex to the stipulation of facts, speaks of the alarming increase in the rate of prostitution, adultery and fornication in Manila traceable in great part to the existence of motels, which "provide a necessary atmosphere for clandestine entry, presence and exit" and thus become the "ideal haven for prostitutes and thrill-seekers." The challenged ordinance then proposes to check the clandestine harboring of transients and guests of these establishments by requiring these transients and guests to fill up a registration form, prepared for the purpose, in a lobby open to public view at all times, and by introducing several other amendatory provisions calculated to shatter the privacy that characterizes the registration of transients and guests." Moreover, the increase in the licensed fees was intended to discourage "establishments of the kind from operating for purpose other than legal" and at the same time, to increase "the income of the city government." It would appear therefore that the stipulation of facts, far from sustaining any attack against the validity of the ordinance, argues eloquently for it. It is a fact worth noting that this Court has invariably stamped with the seal of its approval, ordinances punishing vagrancy and classifying a pimp or procurer as a vagrant;8 provide a license tax for and regulating the maintenance or operation of public dance halls;9 prohibiting gambling;10 prohibiting jueteng;11 and monte;12 prohibiting playing of panguingui on days other than Sundays or legal holidays;13 prohibiting the operation of pinball machines;14 and prohibiting any person from keeping, conducting or maintaining an opium joint or visiting a place where opium is smoked or otherwise used,15 all of which are intended to protect public morals. On the legislative organs of the government, whether national or local, primarily rest the exercise of the police power, which, it cannot be too often emphasized, is the power to prescribe regulations to promote the health, morals, peace, good order, safety and general welfare of the people. In view of the requirements of due process, equal protection and other applicable constitutional guaranties however, the exercise of such police power insofar as it may affect the life, liberty or property of any person is subject to judicial inquiry. Where such exercise of police power may be considered as either capricious, whimsical, unjust or unreasonable, a denial of due process or a violation of any other applicable constitutional guaranty may call for correction by the courts. We are thus led to considering the insistent, almost shrill tone, in which the objection is raised to the question of due process.16 There is no controlling and precise definition of due process. It furnishes though a standard to which the governmental action should conform in order that deprivation of life, liberty or property, in each appropriate case, be valid. What then is the standard of due process which must exist both as a procedural and a substantive requisite to free the challenged ordinance, or any governmental action for that matter, from the imputation of

legal infirmity sufficient to spell its doom? It is responsiveness to the supremacy of reason, obedience to the dictates of justice. Negatively put, arbitrariness is ruled out and unfairness avoided. To satisfy the due process requirement, official action, to paraphrase Cardozo, must not outrun the bounds of reason and result in sheer oppression. Due process is thus hostile to any official action marred by lack of reasonableness. Correctly it has been identified as freedom from arbitrariness. It is the embodiment of the sporting idea of fair play.17 It exacts fealty "to those strivings for justice" and judges the act of officialdom of whatever branch "in the light of reason drawn from considerations of fairness that reflect [democratic] traditions of legal and political thought."18 It is not a narrow or "technical conception with fixed content unrelated to time, place and circumstances,"19 decisions based on such a clause requiring a "close and perceptive inquiry into fundamental principles of our society."20 Questions of due process are not to be treated narrowly or pedantically in slavery to form or phrases.21 It would thus be an affront to reason to stigmatize an ordinance enacted precisely to meet what a municipal lawmaking body considers an evil of rather serious proportion an arbitrary and capricious exercise of authority. It would seem that what should be deemed unreasonable and what would amount to an abdication of the power to govern is inaction in the face of an admitted deterioration of the state of public morals. To be more specific, the Municipal Board of the City of Manila felt the need for a remedial measure. It provided it with the enactment of the challenged ordinance. A strong case must be found in the records, and, as has been set forth, none is even attempted here to attach to an ordinance of such character the taint of nullity for an alleged failure to meet the due process requirement. Nor does it lend any semblance even of deceptive plausibility to petitioners' indictment of Ordinance No. 4760 on due process grounds to single out such features as the increased fees for motels and hotels, the curtailment of the area of freedom to contract, and, in certain particulars, its alleged vagueness. Admittedly there was a decided increase of the annual license fees provided for by the challenged ordinance for hotels and motels, 150% for the former and over 200% for the latter, first-class motels being required to pay a P6,000 annual fee and second-class motels, P4,500 yearly. It has been the settled law however, as far back as 1922 that municipal license fees could be classified into those imposed for regulating occupations or regular enterprises, for the regulation or restriction of non-useful occupations or enterprises and for revenue purposes only.22 As was explained more in detail in the above Cu Unjieng case: (2) Licenses for nonuseful occupations are also incidental to the police power and the right to exact a fee may be implied from the power to license and regulate, but in fixing amount of the license fees the municipal corporations are allowed a much wider discretion in this class of cases than in the former, and aside from applying the well-known legal principle that municipal ordinances must not be unreasonable, oppressive, or tyrannical, courts have, as a general rule, declined to interfere with such discretion. The desirability of imposing restraint upon the number of persons who might otherwise engage in non-useful enterprises is, of course, generally an important factor in the determination of the amount of this kind of license fee. Hence license fees clearly in the nature of privilege taxes for revenue have frequently been upheld, especially in of licenses for the sale of liquors. In fact, in the latter cases the fees have rarely been declared unreasonable.23 Moreover in the equally leading case of Lutz v. Araneta24 this Court affirmed the doctrine earlier announced by the American Supreme Court that taxation may be made to implement the state's

police power. Only the other day, this Court had occasion to affirm that the broad taxing authority conferred by the Local Autonomy Act of 1959 to cities and municipalities is sufficiently plenary to cover a wide range of subjects with the only limitation that the tax so levied is for public purposes, just and uniform.25 As a matter of fact, even without reference to the wide latitude enjoyed by the City of Manila in imposing licenses for revenue, it has been explicitly held in one case that "much discretion is given to municipal corporations in determining the amount," here the license fee of the operator of a massage clinic, even if it were viewed purely as a police power measure.26 The discussion of this particular matter may fitly close with this pertinent citation from another decision of significance: "It is urged on behalf of the plaintiffs-appellees that the enforcement of the ordinance could deprive them of their lawful occupation and means of livelihood because they can not rent stalls in the public markets. But it appears that plaintiffs are also dealers in refrigerated or cold storage meat, the sale of which outside the city markets under certain conditions is permitted x x x . And surely, the mere fact, that some individuals in the community may be deprived of their present business or a particular mode of earning a living cannot prevent the exercise of the police power. As was said in a case, persons licensed to pursue occupations which may in the public need and interest be affected by the exercise of the police power embark in these occupations subject to the disadvantages which may result from the legal exercise of that power."27 Nor does the restriction on the freedom to contract, insofar as the challenged ordinance makes it unlawful for the owner, manager, keeper or duly authorized representative of any hotel, motel, lodging house, tavern, common inn or the like, to lease or rent room or portion thereof more than twice every 24 hours, with a proviso that in all cases full payment shall be charged, call for a different conclusion. Again, such a limitation cannot be viewed as a transgression against the command of due process. It is neither unreasonable nor arbitrary. Precisely it was intended to curb the opportunity for the immoral or illegitimate use to which such premises could be, and, according to the explanatory note, are being devoted. How could it then be arbitrary or oppressive when there appears a correspondence between the undeniable existence of an undesirable situation and the legislative attempt at correction. Moreover, petitioners cannot be unaware that every regulation of conduct amounts to curtailment of liberty which as pointed out by Justice Malcolm cannot be absolute. Thus: "One thought which runs through all these different conceptions of liberty is plainly apparent. It is this: 'Liberty' as understood in democracies, is not license; it is 'liberty regulated by law.' Implied in the term is restraint by law for the good of the individual and for the greater good of the peace and order of society and the general well-being. No man can do exactly as he pleases. Every man must renounce unbridled license. The right of the individual is necessarily subject to reasonable restraint by general law for the common good x x x The liberty of the citizen may be restrained in the interest of the public health, or of the public order and safety, or otherwise within the proper scope of the police power."28 A similar observation was made by Justice Laurel: "Public welfare, then, lies at the bottom of the enactment of said law, and the state in order to promote the general welfare may interfere with personal liberty, with property, and with business and occupations. Persons and property may be subjected to all kinds of restraints and burdens, in order to secure the general comfort, health,

and prosperity of the state x x x To this fundamental aim of our Government the rights of the individual are subordinated. Liberty is a blessing without which life is a misery, but liberty should not be made to prevail over authority because then society will fall into anarchy. Neither should authority be made to prevail over liberty because then the individual will fall into slavery. The citizen should achieve the required balance of liberty and authority in his mind through education and personal discipline, so that there may be established the resultant equilibrium, which means peace and order and happiness for all.29 It is noteworthy that the only decision of this Court nullifying legislation because of undue deprivation of freedom to contract, People v. Pomar,30 no longer "retains its virtuality as a living principle. The policy of laissez faire has to some extent given way to the assumption by the government of the right of intervention even in contractual relations affected with public interest.31 What may be stressed sufficiently is that if the liberty involved were freedom of the mind or the person, the standard for the validity of governmental acts is much more rigorous and exacting, but where the liberty curtailed affects at the most rights of property, the permissible scope of regulatory measure is wider.32 How justify then the allegation of a denial of due process? Lastly, there is the attempt to impugn the ordinance on another due process ground by invoking the principles of vagueness or uncertainty. It would appear from a recital in the petition itself that what seems to be the gravamen of the alleged grievance is that the provisions are too detailed and specific rather than vague or uncertain. Petitioners, however, point to the requirement that a guest should give the name, relationship, age and sex of the companion or companions as indefinite and uncertain in view of the necessity for determining whether the companion or companions referred to are those arriving with the customer or guest at the time of the registry or entering the room With him at about the same time or coming at any indefinite time later to join him; a proviso in one of its sections which cast doubt as to whether the maintenance of a restaurant in a motel is dependent upon the discretion of its owners or operators; another proviso which from their standpoint would require a guess as to whether the "full rate of payment" to be charged for every such lease thereof means a full day's or merely a half-day's rate. It may be asked, do these allegations suffice to render the ordinance void on its face for alleged vagueness or uncertainty? To ask the question is to answer it. From Connally v. General Construction Co.33 to Adderley v. Florida,34 the principle has been consistently upheld that what makes a statute susceptible to such a charge is an enactment either forbidding or requiring the doing of an act that men of common intelligence must necessarily guess at its meaning and differ as to its application. Is this the situation before us? A citation from Justice Holmes would prove illuminating: "We agree to all the generalities about not supplying criminal laws with what they omit but there is no canon against using common sense in construing laws as saying what they obviously mean."35 That is all then that this case presents. As it stands, with all due allowance for the arguments pressed with such vigor and determination, the attack against the validity of the challenged ordinance cannot be considered a success. Far from it. Respect for constitutional law principles so uniformly held and so uninterruptedly adhered to by this Court compels a reversal of the appealed decision.

Wherefore, the judgment of the lower court is reversed and the injunction issued lifted forthwith. With costs. Reyes, J.B.L., Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro and Angeles, JJ., concur. Concepcion, C.J. and Dizon, J., are on leave.

ERMITA-MALATE HOTEL AND MOTEL OPERATORS ASSOCIATION, INC. vs CITY MAYOR OF MANILA, digested
Posted by Pius Morados on November 7, 2011

GR # l-24693 July 31, 1967 (Constitutional Law Police Power, Ordinance) FACTS: Petitioners assailed the constitutionality of Manila Ordinance No. 4760 regulating the operation of hotels, motels and lodging houses on the ground that it is unreasonable and hence violative to the due process clause, wherein it requires establishments to provide guest registration forms on the lobby open for public view at all times. RespondentCityMayor contends that the challenged ordinance was a valid and proper exercise of police power measure for the proper purpose of curbing immorality. An explanatory note for the challenged ordinance made mention of the alarming increase in the rate of prostitution, adultery and fornication inManilatraceable in great part to the existence of motels and the like. ISSUE: Whether or not Ordinance No. 4760 is violative of the due process clause. HELD: No, the challenged ordinance as an exercise of police power was precisely enacted to minimize certain practices hurtful to public morals. As a due process requirement, an ordinance must not outrun the bounds of reason and result in sheer oppression for it to be valid. Thus it would be unreasonable to stigmatize an ordinance enacted precisely for the well-being of the people, specially if there is no factual foundation being laid to prove its alleged violation of due process and offset the ordinances presumed validity. EN BANC [G.R. No. 111953. December 12, 1997] HON. RENATO C. CORONA, in his capacity as Assistant Secretary for Legal Affairs, HON. JESUS B. GARCIA, in his capacity as Acting Secretary, Department of Transportation and Communications, and ROGELIO A. DAYAN, in his capacity as General Manager of Philippine Ports Authority, petitioners, vs. UNITED HARBOR PILOTS ASSOCIATION OF THE PHILIPPINES and MANILA PILOTS ASSOCIATION, respondents. DECISION

ROMERO, J.: In issuing Administrative Order No. 04-92 (PPA-AO No. 04-92), limiting the term of appointment of harbor pilots to one year subject to yearly renewal or cancellation, did the Philippine Ports Authority (PPA) violate respondents right to exercise their profession and their right to due process of law? The PPA was created on July 11, 1974, by virtue of Presidential Decree No. 505. On December 23, 1975, Presidential Decree No. 857 was issued revising the PPAs charter. Pursuant to its power of control, regulation, and supervision of pilots and the pilotage profession, i[1] the PPA promulgated PPA-AO-03-85 ii[2] on March 21, 1985, which embodied the Rules and Regulations Governing Pilotage Services, the Conduct of Pilots and Pilotage Fees in Philippine Ports. These rules mandate, inter alia, that aspiring pilots must be holders of pilot licenses iii[3] and must train as probationary pilots in outports for three months and in the Port of Manila for four months. It is only after they have achieved satisfactory performance iv[4] that they are given permanent and regular appointments by the PPA itself v[5] to exercise harbor pilotage until they reach the age of 70, unless sooner removed by reason of mental or physical unfitness by the PPA General Manager. vi[6] Harbor pilots in every harbor district are further required to organize themselves into pilot associations which would make available such equipment as may be required by the PPA for effective pilotage services. In view of this mandate, pilot associations invested in floating, communications, and office equipment. In fact, every new pilot appointed by the PPA automatically becomes a member of a pilot association and is required to pay a proportionate equivalent equity or capital before being allowed to assume his duties, as reimbursement to the association concerned of the amount it paid to his predecessor. Subsequently, then PPA General Manager Rogelio A. Dayan issued PPA-AO No. 04-92 vii[7] on July 15, 1992, whose avowed policy was to instill effective discipline and thereby afford better protection to the port users through the improvement of pilotage services. This was implemented by providing therein that all existing regular appointments which have been previously issued either by the Bureau of Customs or the PPA shall remain valid up to 31 December 1992 only and that all appointments to harbor pilot positions in all pilotage districts shall, henceforth, be only for a term of one (1) year from date of effectivity subject to yearly renewal or cancellation by the Authority after conduct of a rigid evaluation of performance. On August 12, 1992, respondents United Harbor Pilots Association and the Manila Pilots Association, through Capt. Alberto C. Compas, questioned PPA-AO No. 04-92 before the Department of Transportation and Communication, but they were informed by then DOTC Secretary Jesus B. Garcia that the matter of reviewing, recalling or annulling PPAs administrative issuances lies exclusively with its Board of Directors as its governing body. Meanwhile, on August 31, 1992, the PPA issued Memorandum Order No. 08-92 viii[8] which laid down the criteria or factors to be considered in the reappointment of harbor pilots, viz.: (1) Qualifying Factors: ix[9] safety record and physical/mental medical exam report and (2) Criteria for Evaluation: x[10] promptness in servicing vessels, compliance with PPA Pilotage Guidelines, number of years as a harbor pilot, average GRT of vessels serviced as pilot, awards/commendations as harbor pilot, and age.

Respondents reiterated their request for the suspension of the implementation of PPA-AO No. 04-92, but Secretary Garcia insisted on his position that the matter was within the jurisdiction of the Board of Directors of the PPA. Compas appealed this ruling to the Office of the President (OP), reiterating his arguments before the DOTC. On December 23, 1992, the OP issued an order directing the PPA to hold in abeyance the implementation of PPA-AO No. 04-92. In its answer, the PPA countered that said administrative order was issued in the exercise of its administrative control and supervision over harbor pilots under Section 6-a (viii), Article IV of P. D. No. 857, as amended, and it, along with its implementing guidelines, was intended to restore order in the ports and to improve the quality of port services. On March 17, 1993, the OP, through then Assistant Executive Secretary for Legal Affairs Renato C. Corona, dismissed the appeal/petition and lifted the restraining order issued earlier. xi[11] He concluded that PPA-AO No. 04-92 applied to all harbor pilots and, for all intents and purposes, was not the act of Dayan, but of the PPA, which was merely implementing Section 6 of P.D. No. 857, mandating it to control, regulate and supervise pilotage and conduct of pilots in any port district. On the alleged unconstitutionality and illegality of PPA-AO No. 04-92 and its implementing memoranda and circulars, Secretary Corona opined that: The exercise of ones profession falls within the constitutional guarantee against wrongful deprivation of, or interference with, property rights without due process. In the limited context of this case, PPA-AO 04-92 does not constitute a wrongful interference with, let alone a wrongful deprivation of, the property rights of those affected thereby. As may be noted, the issuance aims no more than to improve pilotage services by limiting the appointment to harbor pilot positions to one year, subject to renewal or cancellation after a rigid evaluation of the appointees performance. PPA-AO 04-92 does not forbid, but merely regulates, the exercise by harbor pilots of their profession in PPAs jurisdictional area. (Emphasis supplied) Finally, as regards the alleged absence of ample prior consultation before the issuance of the administrative order, Secretary Corona cited Section 26 of P.D. No. 857, which merely requires the PPA to consult with relevant Government agencies. Since the PPA Board of Directors is composed of the Secretaries of the DOTC, the Department of Public Works and Highways, the Department of Finance, and the Department of Environment and Natural Resources, as well as the Director-General of the National Economic Development Agency, the Administrator of the Maritime Industry Authority (MARINA), and the private sector representative who, due to his knowledge and expertise, was appointed by the President to the Board, he concluded that the law has been sufficiently complied with by the PPA in issuing the assailed administrative order. Consequently, respondents filed a petition for certiorari, prohibition and injunction with prayer for the issuance of a temporary restraining order and damages, before Branch 6 of the Regional

Trial Court of Manila, which was docketed as Civil Case No. 93-65673. On September 6, 1993, the trial court rendered the following judgment: xii[12] WHEREFORE, for all the foregoing, this Court hereby rules that: 1. Respondents (herein petitioners) have acted in excess of jurisdiction and with grave abuse of discretion and in a capricious, whimsical and arbitrary manner in promulgating PPA Administrative Order 04-92 including all its implementing Memoranda, Circulars and Orders; 2. PPA Administrative Order 04-92 and its implementing Circulars and Orders are declared null and void; 3. The respondents are permanently enjoined from implementing PPA Administrative Order 0492 and its implementing Memoranda, Circulars and Orders. No costs. SO ORDERED. The court a quo pointed out that the Bureau of Customs, the precursor of the PPA, recognized pilotage as a profession and, therefore, a property right under Callanta v. Carnation Philippines, Inc. xiii[13] Thus, abbreviating the term within which that privilege may be exercised would be an interference with the property rights of the harbor pilots. Consequently, any withdrawal or alteration of such property right must be strictly made in accordance with the constitutional mandate of due process of law. This was apparently not followed by the PPA when it did not conduct public hearings prior to the issuance of PPA-AO No. 04-92; respondents allegedly learned about it only after its publication in the newspapers. From this decision, petitioners elevated their case to this Court on certiorari. After carefully examining the records and deliberating on the arguments of the parties, the Court is convinced that PPA-AO No. 04-92 was issued in stark disregard of respondents right against deprivation of property without due process of law. Consequently, the instant petition must be denied. Section 1 of the Bill of Rights lays down what is known as the due process clause of the Constitution, viz.: SECTION 1. No person shall be deprived of life, liberty, or property without due process of law, x x x. In order to fall within the aegis of this provision, two conditions must concur, namely, that there is a deprivation and that such deprivation is done without proper observance of due process. When one speaks of due process of law, however, a distinction must be made between matters of procedure and matters of substance. In essence, procedural due process refers to the method or manner by which the law is enforced, while substantive due process requires that the law itself,

not merely the procedures by which the law would be enforced, is fair, reasonable, and just. xiv[14] PPA-AO No. 04-92 must be examined in light of this distinction. Respondents argue that due process was not observed in the adoption of PPA-AO No. 04-92 allegedly because no hearing was conducted whereby relevant government agencies and the pilots themselves could ventilate their views. They are obviously referring to the procedural aspect of the enactment. Fortunately, the Court has maintained a clear position in this regard, a stance it has stressed in the recent case of Lumiqued v. Hon. Exevea, xv[15] where it declared that (a)s long as a party was given the opportunity to defend his interests in due course, he cannot be said to have been denied due process of law, for this opportunity to be heard is the very essence of due process. Moreover, this constitutional mandate is deemed satisfied if a person is granted an opportunity to seek reconsideration of the action or ruling complained of. In the case at bar, respondents questioned PPA-AO No. 04-92 no less than four times xvi[16] before the matter was finally elevated to this Tribunal. Their arguments on this score, however, fail to persuade. While respondents emphasize that the Philippine Coast Guard, which issues the licenses of pilots after administering the pilots examinations, was not consulted, xvii[17] the facts show that the MARINA, which took over the licensing function of the Philippine Coast Guard, was duly represented in the Board of Directors of the PPA. Thus, petitioners correctly argued that, there being no matters of naval defense involved in the issuance of the administrative order, the Philippine Coast Guard need not be consulted.xviii[18] Neither does the fact that the pilots themselves were not consulted in any way taint the validity of the administrative order. As a general rule, notice and hearing, as the fundamental requirements of procedural due process, are essential only when an administrative body exercises its quasi-judicial function. In the performance of its executive or legislative functions, such as issuing rules and regulations, an administrative body need not comply with the requirements of notice and hearing.xix[19] Upon the other hand, it is also contended that the sole and exclusive right to the exercise of harbor pilotage by pilots is a settled issue. Respondents aver that said right has become vested and can only be withdrawn or shortened by observing the constitutional mandate of due process of law. Their argument has thus shifted from the procedural to one of substance. It is here where PPA-AO No. 04-92 fails to meet the condition set by the organic law. There is no dispute that pilotage as a profession has taken on the nature of a property right. Even petitioner Corona recognized this when he stated in his March 17, 1993, decision that (t)he exercise of ones profession falls within the constitutional guarantee against wrongful deprivation of, or interference with, property rights without due process. xx[20] He merely expressed the opinion that (i)n the limited context of this case, PPA-AO 04-92 does not constitute a wrongful interference with, let alone a wrongful deprivation of, the property rights of those affected thereby, and that PPA-AO 04-92 does not forbid, but merely regulates, the exercise by harbor pilots of their profession. As will be presently demonstrated, such supposition is gravely erroneous and tends to perpetuate an administrative order which is not only unreasonable but also superfluous.

Pilotage, just like other professions, may be practiced only by duly licensed individuals. Licensure is the granting of license especially to practice a profession. It is also the system of granting licenses (as for professional practice) in accordance with established standards. xxi[21] A license is a right or permission granted by some competent authority to carry on a business or do an act which, without such license, would be illegal. xxii[22] Before harbor pilots can earn a license to practice their profession, they literally have to pass through the proverbial eye of a needle by taking, not one but five examinations, each followed by actual training and practice. Thus, the court a quo observed: Petitioners (herein respondents) contend, and the respondents (herein petitioners) do not deny, that here (sic) in this jurisdiction, before a person can be a harbor pilot, he must pass five (5) government professional examinations, namely, (1) For Third Mate and after which he must work, train and practice on board a vessel for at least a year; (2) For Second Mate and after which he must work, train and practice for at least a year; (3) For Chief Mate and after which he must work, train and practice for at least a year; (4) For a Master Mariner and after which he must work as Captain of vessels for at least two (2) years to qualify for an examination to be a pilot; and finally, of course, that given for pilots. Their license is granted in the form of an appointment which allows them to engage in pilotage until they retire at the age 70 years. This is a vested right. Under the terms of PPA-AO No. 0492, (a)ll existing regular appointments which have been previously issued by the Bureau of Customs or the PPA shall remain valid up to 31 December 1992 only, and (a)ll appointments to harbor pilot positions in all pilotage districts shall, henceforth, be only for a term of one (1) year from date of effectivity subject to renewal or cancellation by the Authority after conduct of a rigid evaluation of performance. It is readily apparent that PPA-AO No. 04-92 unduly restricts the right of harbor pilots to enjoy their profession before their compulsory retirement. In the past, they enjoyed a measure of security knowing that after passing five examinations and undergoing years of on-the-job training, they would have a license which they could use until their retirement, unless sooner revoked by the PPA for mental or physical unfitness. Under the new issuance, they have to contend with an annual cancellation of their license which can be temporary or permanent depending on the outcome of their performance evaluation. Veteran pilots and neophytes alike are suddenly confronted with one-year terms which ipso facto expire at the end of that period. Renewal of their license is now dependent on a rigid evaluation of performance which is conducted only after the license has already been cancelled. Hence, the use of the term renewal. It is this pre-evaluation cancellation which primarily makes PPA-AO No. 04-92 unreasonable and constitutionally infirm. In a real sense, it is a deprivation of property without due process of law. The Court notes that PPA-AO No. 04-92 and PPA-MO No. 08-92 are already covered by PPAAO No. 03-85, which is still operational. Respondents are correct in pointing out that PPA-AO No. 04-92 is a surplusage xxiii[23] and, therefore, an unnecessary enactment. PPA-AO 03-85 is a comprehensive order setting forth the Rules and Regulations Governing Pilotage Services, the Conduct of Pilots and Pilotage Fees in Philippine Ports. It provides, inter alia, for the

qualification, appointment, performance evaluation, disciplining and removal of harbor pilots matters which are duplicated in PPA-AO No. 04-92 and its implementing memorandum order. Since it adds nothing new or substantial, PPA-AO No. 04-92 must be struck down. Finally, respondents insinuation that then PPA General Manager Dayan was responsible for the issuance of the questioned administrative order may have some factual basis; after all, power and authority were vested in his office to propose rules and regulations. The trial courts finding of animosity between him and private respondents might likewise have a grain of truth. Yet the number of cases filed in court between private respondents and Dayan, including cases which have reached this Court, cannot certainly be considered the primordial reason for the issuance of PPA-AO No. 04-92. In the absence of proof to the contrary, Dayan should be presumed to have acted in accordance with law and the best of professional motives. In any event, his actions are certainly always subject to scrutiny by higher administrative authorities. WHEREFORE, the instant petition is hereby DISMISSED and the assailed decision of the court a quo dated September 6, 1993, in Civil Case No. 93-65673 is AFFIRMED. No pronouncement as to costs. SO ORDERED.

El Banco ESPAOL-Filipino vs Vicente Palanca

23 11 2010

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Judicial Due Process Requisites

Engracio Palanca was indebted to El Banco and he had his parcel of land as security to his debt. His debt amounted to P218,294.10. His property is worth 75k more than what he owe. Due to the failure of Engracio to make his payments, El Banco executed an instrument to mortgage Engracios property. Engracio however left for China and he never returned til he died. Since Engracio is a non resident El Banco has to notify Engracio about their intent to sue him by means

of publication using a newspaper. The lower court further orderdd the clerk of court to furnish Engracio a copy and that itd be sent to Amoy, China. The court eventually granted El Banco petition to execute Engracios property. 7 years thereafter, Vicente surfaced on behalf of Engracio as his administrator to petition for the annulment of the ruling. Vicente averred that there had been no due process as Engracio never received the summons. ISSUE: Whether or not due process was not observed. HELD: The SC ruled against Palanca. The SC ruled that the requisites for judicial due process had been met. The requisites are;
1. There must be an impartial court or tribunal clothed with judicial power to hear and decide the matter before it. 2. Jurisdiction must be lawfully acquired over the person of the defendant or over the property subject of the proceedings. 3. The defendant must be given the opportunity to be heard. 4. Judgment must be rendered only after lawful hearing.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-11390 March 26, 1918

EL BANCO ESPAOL-FILIPINO, plaintiff-appellant, vs. VICENTE PALANCA, administrator of the estate of Engracio Palanca Tanquinyeng, defendant-appellant. Aitken and DeSelms for appellant. Hartigan and Welch for appellee. STREET, J.: This action was instituted upon March 31, 1908, by El Banco Espanol-Filipino to foreclose a mortgage upon various parcels of real property situated in the city of Manila. The mortgage in question is dated June 16, 1906, and was executed by the original defendant herein, Engracio Palanca Tanquinyeng y Limquingco, as security for a debt owing by him to the bank. Upon March 31, 1906, the debt amounted to P218,294.10 and was drawing interest at the rate of 8 per centum per annum, payable at the end of each quarter. It appears that the parties to this mortgage at that time estimated the value of the property in question at P292,558, which was about P75,000 in excess of the indebtedness. After the execution of this instrument by the mortgagor, he returned to China which appears to have been his native country; and he there died, upon January 29, 1810, without again returning to the Philippine Islands.

As the defendant was a nonresident at the time of the institution of the present action, it was necessary for the plaintiff in the foreclosure proceeding to give notice to the defendant by publication pursuant to section 399 of the Code of Civil Procedure. An order for publication was accordingly obtained from the court, and publication was made in due form in a newspaper of the city of Manila. At the same time that the order of the court should deposit in the post office in a stamped envelope a copy of the summons and complaint directed to the defendant at his last place of residence, to wit, the city of Amoy, in the Empire of China. This order was made pursuant to the following provision contained in section 399 of the Code of Civil Procedure: In case of publication, where the residence of a nonresident or absent defendant is known, the judge must direct a copy of the summons and complaint to be forthwith deposited by the clerk in the post-office, postage prepaid, directed to the person to be served, at his place of residence Whether the clerk complied with this order does not affirmatively appear. There is, however, among the papers pertaining to this case, an affidavit, dated April 4, 1908, signed by Bernardo Chan y Garcia, an employee of the attorneys of the bank, showing that upon that date he had deposited in the Manila post-office a registered letter, addressed to Engracio Palanca Tanquinyeng, at Manila, containing copies of the complaint, the plaintiffs affidavit, the summons, and the order of the court directing publication as aforesaid. It appears from the postmasters receipt that Bernardo probably used an envelope obtained from the clerks office, as the receipt purports to show that the letter emanated from the office. The cause proceeded in usual course in the Court of First Instance; and the defendant not having appeared, judgment was, upon July 2, 1908, taken against him by default. Upon July 3, 1908, a decision was rendered in favor of the plaintiff. In this decision it was recited that publication had been properly made in a periodical, but nothing was said about this notice having been given mail. The court, upon this occasion, found that the indebtedness of the defendant amounted to P249,355. 32, with interest from March 31, 1908. Accordingly it was ordered that the defendant should, on or before July 6, 1908, deliver said amount to the clerk of the court to be applied to the satisfaction of the judgment, and it was declared that in case of the failure of the defendant to satisfy the judgment within such period, the mortgage property located in the city of Manila should be exposed to public sale. The payment contemplated in said order was never made; and upon July 8, 1908, the court ordered the sale of the property. The sale took place upon July 30, 1908, and the property was bought in by the bank for the sum of P110,200. Upon August 7, 1908, this sale was confirmed by the court. About seven years after the confirmation of this sale, or to the precise, upon June 25, 1915, a motion was made in this cause by Vicente Palanca, as administrator of the estate of the original defendant, Engracio Palanca Tanquinyeng y Limquingco, wherein the applicant requested the court to set aside the order of default of July 2, 1908, and the judgment rendered upon July 3, 1908, and to vacate all the proceedings subsequent thereto. The basis of this application, as set forth in the motion itself, was that the order of default and the judgment rendered thereon were void because the court had never acquired jurisdiction over the defendant or over the subject of the action.

At the hearing in the court below the application to vacate the judgment was denied, and from this action of the court Vicente Planca, as administrator of the estate of the original defendant, has appealed. No other feature of the case is here under consideration than such as related to the action of the court upon said motion. The case presents several questions of importance, which will be discussed in what appears to be the sequence of most convenient development. In the first part of this opinion we shall, for the purpose of argument, assume that the clerk of the Court of First Instance did not obey the order of the court in the matter of mailing the papers which he was directed to send to the defendant in Amoy; and in this connection we shall consider, first, whether the court acquired the necessary jurisdiction to enable it to proceed with the foreclosure of the mortgage and, secondly, whether those proceedings were conducted in such manner as to constitute due process of law. The word jurisdiction, as applied to the faculty of exercising judicial power, is used in several different, though related, senses since it may have reference (1) to the authority of the court to entertain a particular kind of action or to administer a particular kind of relief, or it may refer to the power of the court over the parties, or (2) over the property which is the subject to the litigation. The sovereign authority which organizes a court determines the nature and extent of its powers in general and thus fixes its competency or jurisdiction with reference to the actions which it may entertain and the relief it may grant. Jurisdiction over the person is acquired by the voluntary appearance of a party in court and his submission to its authority, or it is acquired by the coercive power of legal process exerted over the person. Jurisdiction over the property which is the subject of the litigation may result either from a seizure of the property under legal process, whereby it is brought into the actual custody of the law, or it may result from the institution of legal proceedings wherein, under special provisions of law, the power of the court over the property is recognized and made effective. In the latter case the property, though at all times within the potential power of the court, may never be taken into actual custody at all. An illustration of the jurisdiction acquired by actual seizure is found in attachment proceedings, where the property is seized at the beginning of the action, or some subsequent stage of its progress, and held to abide the final event of the litigation. An illustration of what we term potential jurisdiction over the res, is found in the proceeding to register the title of land under our system for the registration of land. Here the court, without taking actual physical control over the property assumes, at the instance of some person claiming to be owner, to exercise a jurisdiction in rem over the property and to adjudicate the title in favor of the petitioner against all the world. In the terminology of American law the action to foreclose a mortgage is said to be a proceeding quasi in rem, by which is expressed the idea that while it is not strictly speaking an action in rem yet it partakes of that nature and is substantially such. The expression action in rem is, in its narrow application, used only with reference to certain proceedings in courts of admiralty wherein the property alone is treated as responsible for the claim or obligation upon which the

proceedings are based. The action quasi rem differs from the true action in rem in the circumstance that in the former an individual is named as defendant, and the purpose of the proceeding is to subject his interest therein to the obligation or lien burdening the property. All proceedings having for their sole object the sale or other disposition of the property of the defendant, whether by attachment, foreclosure, or other form of remedy, are in a general way thus designated. The judgment entered in these proceedings is conclusive only between the parties. In speaking of the proceeding to foreclose a mortgage the author of a well known treaties, has said: Though nominally against person, such suits are to vindicate liens; they proceed upon seizure; they treat property as primarily indebted; and, with the qualification above-mentioned, they are substantially property actions. In the civil law, they are styled hypothecary actions, and their sole object is the enforcement of the lien against the res; in the common law, they would be different in chancery did not treat the conditional conveyance as a mere hypothecation, and the creditors right ass an equitable lien; so, in both, the suit is real action so far as it is against property, and seeks the judicial recognition of a property debt, and an order for the sale of the res. (Waples, Proceedings In Rem. sec. 607.) It is true that in proceedings of this character, if the defendant for whom publication is made appears, the action becomes as to him a personal action and is conducted as such. This, however, does not affect the proposition that where the defendant fails to appear the action is quasi in rem; and it should therefore be considered with reference to the principles governing actions in rem. There is an instructive analogy between the foreclosure proceeding and an action of attachment, concerning which the Supreme Court of the United States has used the following language: If the defendant appears, the cause becomes mainly a suit in personam, with the added incident, that the property attached remains liable, under the control of the court, to answer to any demand which may be established against the defendant by the final judgment of the court. But, if there is no appearance of the defendant, and no service of process on him, the case becomes, in its essential nature, a proceeding in rem, the only effect of which is to subject the property attached to the payment of the defendant which the court may find to be due to the plaintiff. (Cooper vs. Reynolds, 10 Wall., 308.) In an ordinary attachment proceeding, if the defendant is not personally served, the preliminary seizure is to, be considered necessary in order to confer jurisdiction upon the court. In this case the lien on the property is acquired by the seizure; and the purpose of the proceedings is to subject the property to that lien. If a lien already exists, whether created by mortgage, contract, or statute, the preliminary seizure is not necessary; and the court proceeds to enforce such lien in the manner provided by law precisely as though the property had been seized upon attachment. (Roller vs. Holly, 176 U. S., 398, 405; 44 L. ed., 520.) It results that the mere circumstance that in an attachment the property may be seized at the inception of the proceedings, while in the foreclosure suit it is not taken into legal custody until the time comes for the sale, does not

materially affect the fundamental principle involved in both cases, which is that the court is here exercising a jurisdiction over the property in a proceeding directed essentially in rem. Passing now to a consideration of the jurisdiction of the Court of First Instance in a mortgage foreclosure, it is evident that the court derives its authority to entertain the action primarily from the statutes organizing the court. The jurisdiction of the court, in this most general sense, over the cause of action is obvious and requires no comment. Jurisdiction over the person of the defendant, if acquired at all in such an action, is obtained by the voluntary submission of the defendant or by the personal service of process upon him within the territory where the process is valid. If, however, the defendant is a nonresident and, remaining beyond the range of the personal process of the court, refuses to come in voluntarily, the court never acquires jurisdiction over the person at all. Here the property itself is in fact the sole thing which is impleaded and is the responsible object which is the subject of the exercise of judicial power. It follows that the jurisdiction of the court in such case is based exclusively on the power which, under the law, it possesses over the property; and any discussion relative to the jurisdiction of the court over the person of the defendant is entirely apart from the case. The jurisdiction of the court over the property, considered as the exclusive object of such action, is evidently based upon the following conditions and considerations, namely: (1) that the property is located within the district; (2) that the purpose of the litigation is to subject the property by sale to an obligation fixed upon it by the mortgage; and (3) that the court at a proper stage of the proceedings takes the property into custody, if necessary, and expose it to sale for the purpose of satisfying the mortgage debt. An obvious corollary is that no other relief can be granted in this proceeding than such as can be enforced against the property. We may then, from what has been stated, formulated the following proposition relative to the foreclosure proceeding against the property of a nonresident mortgagor who fails to come in and submit himself personally to the jurisdiction of the court: (I) That the jurisdiction of the court is derived from the power which it possesses over the property; (II) that jurisdiction over the person is not acquired and is nonessential; (III) that the relief granted by the court must be limited to such as can be enforced against the property itself. It is important that the bearing of these propositions be clearly apprehended, for there are many expressions in the American reports from which it might be inferred that the court acquires personal jurisdiction over the person of the defendant by publication and notice; but such is not the case. In truth the proposition that jurisdiction over the person of a nonresident cannot be acquired by publication and notice was never clearly understood even in the American courts until after the decision had been rendered by the Supreme Court of the United States in the leading case of Pennoyer vs. Neff (95 U. S. 714; 24 L. ed., 565). In the light of that decision, and of other decisions which have subsequently been rendered in that and other courts, the proposition that jurisdiction over the person cannot be thus acquired by publication and notice is no longer open to question; and it is now fully established that a personal judgment upon constructive or substituted service against a nonresident who does not appear is wholly invalid. This doctrine applies to all kinds of constructive or substituted process, including service by publication and personal service outside of the jurisdiction in which the judgment is rendered; and the only exception seems to be found in the case where the nonresident defendant has

expressly or impliedly consented to the mode of service. (Note to Raher vs. Raher, 35 L. R. A. [N. S. ], 292; see also 50 L .R. A., 585; 35 L. R. A. [N. S.], 312 The idea upon which the decision in Pennoyer vs. Neff (supra) proceeds is that the process from the tribunals of one State cannot run into other States or countries and that due process of law requires that the defendant shall be brought under the power of the court by service of process within the State, or by his voluntary appearance, in order to authorize the court to pass upon the question of his personal liability. The doctrine established by the Supreme Court of the United States on this point, being based upon the constitutional conception of due process of law, is binding upon the courts of the Philippine Islands. Involved in this decision is the principle that in proceedings in rem or quasi in rem against a nonresident who is not served personally within the state, and who does not appear, the relief must be confined to the res, and the court cannot lawfully render a personal judgment against him. (Dewey vs. Des Moines, 173 U. S., 193; 43 L. ed., 665; Heidritter vs. Elizabeth Oil Cloth Co., 112 U. S., 294; 28 L. ed., 729.) Therefore in an action to foreclose a mortgage against a nonresident, upon whom service has been effected exclusively by publication, no personal judgment for the deficiency can be entered. (Latta vs. Tutton, 122 Cal., 279; Blumberg vs. Birch, 99 Cal., 416.) It is suggested in the brief of the appellant that the judgment entered in the court below offends against the principle just stated and that this judgment is void because the court in fact entered a personal judgment against the absent debtor for the full amount of the indebtedness secured by the mortgage. We do not so interpret the judgment. In a foreclosure proceeding against a nonresident owner it is necessary for the court, as in all cases of foreclosure, to ascertain the amount due, as prescribed in section 256 of the Code of Civil Procedure, and to make an order requiring the defendant to pay the money into court. This step is a necessary precursor of the order of sale. In the present case the judgment which was entered contains the following words: Because it is declared that the said defendant Engracio Palanca Tanquinyeng y Limquingco, is indebted in the amount of P249,355.32, plus the interest, to the Banco Espanol-Filipino . . . therefore said appellant is ordered to deliver the above amount etc., etc. This is not the language of a personal judgment. Instead it is clearly intended merely as a compliance with the requirement that the amount due shall be ascertained and that the evidence of this it may be observed that according to the Code of Civil Procedure a personal judgment against the debtor for the deficiency is not to be rendered until after the property has been sold and the proceeds applied to the mortgage debt. (sec. 260). The conclusion upon this phase of the case is that whatever may be the effect in other respects of the failure of the clerk of the Court of First Instance to mail the proper papers to the defendant in Amoy, China, such irregularity could in no wise impair or defeat the jurisdiction of the court, for in our opinion that jurisdiction rest upon a basis much more secure than would be supplied by any form of notice that could be given to a resident of a foreign country.

Before leaving this branch of the case, we wish to observe that we are fully aware that many reported cases can be cited in which it is assumed that the question of the sufficiency of publication or notice in a case of this kind is a question affecting the jurisdiction of the court, and the court is sometimes said to acquire jurisdiction by virtue of the publication. This phraseology was undoubtedly originally adopted by the court because of the analogy between service by the publication and personal service of process upon the defendant; and, as has already been suggested, prior to the decision of Pennoyer vs. Neff (supra) the difference between the legal effects of the two forms of service was obscure. It is accordingly not surprising that the modes of expression which had already been molded into legal tradition before that case was decided have been brought down to the present day. But it is clear that the legal principle here involved is not effected by the peculiar language in which the courts have expounded their ideas. We now proceed to a discussion of the question whether the supposed irregularity in the proceedings was of such gravity as to amount to a denial of that due process of law which was secured by the Act of Congress in force in these Islands at the time this mortgage was foreclosed. (Act of July 1, 1902, sec. 5.) In dealing with questions involving the application of the constitutional provisions relating to due process of law the Supreme Court of the United States has refrained from attempting to define with precision the meaning of that expression, the reason being that the idea expressed therein is applicable under so many diverse conditions as to make any attempt ay precise definition hazardous and unprofitable. As applied to a judicial proceeding, however, it may be laid down with certainty that the requirement of due process is satisfied if the following conditions are present, namely; (1) There must be a court or tribunal clothed with judicial power to hear and determine the matter before it; (2) jurisdiction must be lawfully acquired over the person of the defendant or over the property which is the subject of the proceeding; (3) the defendant must be given an opportunity to be heard; and (4) judgment must be rendered upon lawful hearing. Passing at once to the requisite that the defendant shall have an opportunity to be heard, we observe that in a foreclosure case some notification of the proceedings to the nonresident owner, prescribing the time within which appearance must be made, is everywhere recognized as essential. To answer this necessity the statutes generally provide for publication, and usually in addition thereto, for the mailing of notice to the defendant, if his residence is known. Though commonly called constructive, or substituted service of process in any true sense. It is merely a means provided by law whereby the owner may be admonished that his property is the subject of judicial proceedings and that it is incumbent upon him to take such steps as he sees fit to protect it. In speaking of notice of this character a distinguish master of constitutional law has used the following language: . . . if the owners are named in the proceedings, and personal notice is provided for, it is rather from tenderness to their interests, and in order to make sure that the opportunity for a hearing shall not be lost to them, than from any necessity that the case shall assume that form. (Cooley on Taxation [2d. ed.], 527, quoted in Leigh vs. Green, 193 U. S., 79, 80.) It will be observed that this mode of notification does not involve any absolute assurance that the absent owner shall thereby receive actual notice. The periodical containing the publication may never in fact come to his hands, and the chances that he should discover the notice may often be

very slight. Even where notice is sent by mail the probability of his receiving it, though much increased, is dependent upon the correctness of the address to which it is forwarded as well as upon the regularity and security of the mail service. It will be noted, furthermore, that the provision of our law relative to the mailing of notice does not absolutely require the mailing of notice unconditionally and in every event, but only in the case where the defendants residence is known. In the light of all these facts, it is evident that actual notice to the defendant in cases of this kind is not, under the law, to be considered absolutely necessary. The idea upon which the law proceeds in recognizing the efficacy of a means of notification which may fall short of actual notice is apparently this: Property is always assumed to be in the possession of its owner, in person or by agent; and he may be safely held, under certain conditions, to be affected with knowledge that proceedings have been instituted for its condemnation and sale. It is the duty of the owner of real estate, who is a nonresident, to take measures that in some way he shall be represented when his property is called into requisition, and if he fails to do this, and fails to get notice by the ordinary publications which have usually been required in such cases, it is his misfortune, and he must abide the consequences. (6 R. C. L., sec. 445 [p. 450]). It has been well said by an American court: If property of a nonresident cannot be reached by legal process upon the constructive notice, then our statutes were passed in vain, and are mere empty legislative declarations, without either force, or meaning; for if the person is not within the jurisdiction of the court, no personal judgment can be rendered, and if the judgment cannot operate upon the property, then no effective judgment at all can be rendered, so that the result would be that the courts would be powerless to assist a citizen against a nonresident. Such a result would be a deplorable one. (Quarl vs. Abbett, 102 Ind., 233; 52 Am. Rep., 662, 667.) It is, of course universally recognized that the statutory provisions relative to publication or other form of notice against a nonresident owner should be complied with; and in respect to the publication of notice in the newspaper it may be stated that strict compliance with the requirements of the law has been held to be essential. In Guaranty Trust etc. Co. vs. Green Cove etc., Railroad Co. (139 U. S., 137, 138), it was held that where newspaper publication was made for 19 weeks, when the statute required 20, the publication was insufficient. With respect to the provisions of our own statute, relative to the sending of notice by mail, the requirement is that the judge shall direct that the notice be deposited in the mail by the clerk of the court, and it is not in terms declared that the notice must be deposited in the mail. We consider this to be of some significance; and it seems to us that, having due regard to the principles upon which the giving of such notice is required, the absent owner of the mortgaged property must, so far as the due process of law is concerned, take the risk incident to the possible failure of the clerk to perform his duty, somewhat as he takes the risk that the mail clerk or the mail carrier might possibly lose or destroy the parcel or envelope containing the notice before it should reach its destination and be delivered to him. This idea seems to be strengthened by the consideration that placing upon the clerk the duty of sending notice by mail, the performance of

that act is put effectually beyond the control of the plaintiff in the litigation. At any rate it is obvious that so much of section 399 of the Code of Civil Procedure as relates to the sending of notice by mail was complied with when the court made the order. The question as to what may be the consequences of the failure of the record to show the proof of compliance with that requirement will be discussed by us further on. The observations which have just been made lead to the conclusion that the failure of the clerk to mail the notice, if in fact he did so fail in his duty, is not such an irregularity, as amounts to a denial of due process of law; and hence in our opinion that irregularity, if proved, would not avoid the judgment in this case. Notice was given by publication in a newspaper and this is the only form of notice which the law unconditionally requires. This in our opinion is all that was absolutely necessary to sustain the proceedings. It will be observed that in considering the effect of this irregularity, it makes a difference whether it be viewed as a question involving jurisdiction or as a question involving due process of law. In the matter of jurisdiction there can be no distinction between the much and the little. The court either has jurisdiction or it has not; and if the requirement as to the mailing of notice should be considered as a step antecedent to the acquiring of jurisdiction, there could be no escape from the conclusion that the failure to take that step was fatal to the validity of the judgment. In the application of the idea of due process of law, on the other hand, it is clearly unnecessary to be so rigorous. The jurisdiction being once established, all that due process of law thereafter requires is an opportunity for the defendant to be heard; and as publication was duly made in the newspaper, it would seem highly unreasonable to hold that failure to mail the notice was fatal. We think that in applying the requirement of due process of law, it is permissible to reflect upon the purposes of the provision which is supposed to have been violated and the principle underlying the exercise of judicial power in these proceedings. Judge in the light of these conceptions, we think that the provision of Act of Congress declaring that no person shall be deprived of his property without due process of law has not been infringed. In the progress of this discussion we have stated the two conclusions; (1) that the failure of the clerk to send the notice to the defendant by mail did not destroy the jurisdiction of the court and (2) that such irregularity did not infringe the requirement of due process of law. As a consequence of these conclusions the irregularity in question is in some measure shorn of its potency. It is still necessary, however, to consider its effect considered as a simple irregularity of procedure; and it would be idle to pretend that even in this aspect the irregularity is not grave enough. From this point of view, however, it is obvious that any motion to vacate the judgment on the ground of the irregularity in question must fail unless it shows that the defendant was prejudiced by that irregularity. The least, therefore, that can be required of the proponent of such a motion is to show that he had a good defense against the action to foreclose the mortgage. Nothing of the kind is, however, shown either in the motion or in the affidavit which accompanies the motion. An application to open or vacate a judgment because of an irregularity or defect in the proceedings is usually required to be supported by an affidavit showing the grounds on which the relief is sought, and in addition to this showing also a meritorious defense to the action. It is held that a general statement that a party has a good defense to the action is insufficient. The

necessary facts must be averred. Of course if a judgment is void upon its face a showing of the existence of a meritorious defense is not necessary. (10 R. C. L., 718.) The lapse of time is also a circumstance deeply affecting this aspect of the case. In this connection we quote the following passage from the encyclopedic treatise now in course of publication: Where, however, the judgment is not void on its face, and may therefore be enforced if permitted to stand on the record, courts in many instances refuse to exercise their quasi equitable powers to vacate a judgement after the lapse of the term ay which it was entered, except in clear cases, to promote the ends of justice, and where it appears that the party making the application is himself without fault and has acted in good faith and with ordinary diligence. Laches on the part of the applicant, if unexplained, is deemed sufficient ground for refusing the relief to which he might otherwise be entitled. Something is due to the finality of judgments, and acquiescence or unnecessary delay is fatal to motions of this character, since courts are always reluctant to interfere with judgments, and especially where they have been executed or satisfied. The moving party has the burden of showing diligence, and unless it is shown affirmatively the court will not ordinarily exercise its discretion in his favor. (15 R. C. L., 694, 695.) It is stated in the affidavit that the defendant, Engracio Palanca Tanquinyeng y Limquingco, died January 29, 1910. The mortgage under which the property was sold was executed far back in 1906; and the proceedings in the foreclosure were closed by the order of court confirming the sale dated August 7, 1908. It passes the rational bounds of human credulity to suppose that a man who had placed a mortgage upon property worth nearly P300,000 and had then gone away from the scene of his life activities to end his days in the city of Amoy, China, should have long remained in ignorance of the fact that the mortgage had been foreclosed and the property sold, even supposing that he had no knowledge of those proceedings while they were being conducted. It is more in keeping with the ordinary course of things that he should have acquired information as to what was transpiring in his affairs at Manila; and upon the basis of this rational assumption we are authorized, in the absence of proof to the contrary, to presume that he did have, or soon acquired, information as to the sale of his property. The Code of Civil Procedure, indeed, expressly declares that there is a presumption that things have happened according to the ordinary habits of life (sec. 334 [26]); and we cannot conceive of a situation more appropriate than this for applying the presumption thus defined by the lawgiver. In support of this presumption, as applied to the present case, it is permissible to consider the probability that the defendant may have received actual notice of these proceedings from the unofficial notice addressed to him in Manila which was mailed by an employee of the banks attorneys. Adopting almost the exact words used by the Supreme Court of the United States in Grannis vs. Ordeans (234 U. S., 385; 58 L. ed., 1363), we may say that in view of the wellknown skill of postal officials and employees in making proper delivery of letters defectively addressed, we think the presumption is clear and strong that this notice reached the defendant, there being no proof that it was ever returned by the postal officials as undelivered. And if it was delivered in Manila, instead of being forwarded to Amoy, China, there is a probability that the recipient was a person sufficiently interested in his affairs to send it or communicate its contents to him.

Of course if the jurisdiction of the court or the sufficiency of the process of law depended upon the mailing of the notice by the clerk, the reflections in which we are now indulging would be idle and frivolous; but the considerations mentioned are introduced in order to show the propriety of applying to this situation the legal presumption to which allusion has been made. Upon that presumption, supported by the circumstances of this case, ,we do not hesitate to found the conclusion that the defendant voluntarily abandoned all thought of saving his property from the obligation which he had placed upon it; that knowledge of the proceedings should be imputed to him; and that he acquiesced in the consequences of those proceedings after they had been accomplished. Under these circumstances it is clear that the merit of this motion is, as we have already stated, adversely affected in a high degree by the delay in asking for relief. Nor is it an adequate reply to say that the proponent of this motion is an administrator who only qualified a few months before this motion was made. No disability on the part of the defendant himself existed from the time when the foreclosure was effected until his death; and we believe that the delay in the appointment of the administrator and institution of this action is a circumstance which is imputable to the parties in interest whoever they may have been. Of course if the minor heirs had instituted an action in their own right to recover the property, it would have been different. It is, however, argued that the defendant has suffered prejudice by reason of the fact that the bank became the purchaser of the property at the foreclosure sale for a price greatly below that which had been agreed upon in the mortgage as the upset price of the property. In this connection, it appears that in article nine of the mortgage which was the subject of this foreclosure, as amended by the notarial document of July 19, 1906, the parties to this mortgage made a stipulation to the effect that the value therein placed upon the mortgaged properties should serve as a basis of sale in case the debt should remain unpaid and the bank should proceed to a foreclosure. The upset price stated in that stipulation for all the parcels involved in this foreclosure was P286,000. It is said in behalf of the appellant that when the bank bought in the property for the sum of P110,200 it violated that stipulation. It has been held by this court that a clause in a mortgage providing for a tipo, or upset price, does not prevent a foreclosure, nor affect the validity of a sale made in the foreclosure proceedings. (Yangco vs. Cruz Herrera and Wy Piaco, 11 Phil. Rep., 402; Banco-Espaol Filipino vs. Donaldson, Sim and Co., 5 Phil. Rep., 418.) In both the cases here cited the property was purchased at the foreclosure sale, not by the creditor or mortgagee, but by a third party. Whether the same rule should be applied in a case where the mortgagee himself becomes the purchaser has apparently not been decided by this court in any reported decision, and this question need not here be considered, since it is evident that if any liability was incurred by the bank by purchasing for a price below that fixed in the stipulation, its liability was a personal liability derived from the contract of mortgage; and as we have already demonstrated such a liability could not be the subject of adjudication in an action where the court had no jurisdiction over the person of the defendant. If the plaintiff bank became liable to account for the difference between the upset price and the price at which in bought in the property, that liability remains unaffected by the disposition which the court made of this case; and the fact that the bank may have violated such an obligation can in no wise affect the validity of the judgment entered in the Court of First Instance.

In connection with the entire failure of the motion to show either a meritorious defense to the action or that the defendant had suffered any prejudice of which the law can take notice, we may be permitted to add that in our opinion a motion of this kind, which proposes to unsettle judicial proceedings long ago closed, can not be considered with favor, unless based upon grounds which appeal to the conscience of the court. Public policy requires that judicial proceedings be upheld. The maximum here applicable is non quieta movere. As was once said by Judge Brewer, afterwards a member of the Supreme Court of the United States: Public policy requires that judicial proceedings be upheld, and that titles obtained in those proceedings be safe from the ruthless hand of collateral attack. If technical defects are adjudged potent to destroy such titles, a judicial sale will never realize that value of the property, for no prudent man will risk his money in bidding for and buying that title which he has reason to fear may years thereafter be swept away through some occult and not readily discoverable defect. (Martin vs. Pond, 30 Fed., 15.) In the case where that language was used an attempt was made to annul certain foreclosure proceedings on the ground that the affidavit upon which the order of publication was based erroneously stated that the State of Kansas, when he was in fact residing in another State. It was held that this mistake did not affect the validity of the proceedings. In the preceding discussion we have assumed that the clerk failed to send the notice by post as required by the order of the court. We now proceed to consider whether this is a proper assumption; and the proposition which we propose to establish is that there is a legal presumption that the clerk performed his duty as the ministerial officer of the court, which presumption is not overcome by any other facts appearing in the cause. In subsection 14 of section 334 of the Code of Civil Procedure it is declared that there is a presumption that official duty has been regularly performed; and in subsection 18 it is declared that there is a presumption that the ordinary course of business has been followed. These presumptions are of course in no sense novelties, as they express ideas which have always been recognized. Omnia presumuntur rite et solemniter esse acta donec probetur in contrarium. There is therefore clearly a legal presumption that the clerk performed his duty about mailing this notice; and we think that strong considerations of policy require that this presumption should be allowed to operate with full force under the circumstances of this case. A party to an action has no control over the clerk of the court; and has no right to meddle unduly with the business of the clerk in the performance of his duties. Having no control over this officer, the litigant must depend upon the court to see that the duties imposed on the clerk are performed. Other considerations no less potent contribute to strengthen the conclusion just stated. There is no principle of law better settled than that after jurisdiction has once been required, every act of a court of general jurisdiction shall be presumed to have been rightly done. This rule is applied to every judgment or decree rendered in the various stages of the proceedings from their initiation to their completion (Voorhees vs. United States Bank, 10 Pet., 314; 35 U. S., 449); and if the record is silent with respect to any fact which must have been established before the court could have rightly acted, it will be presumed that such fact was properly brought to its knowledge. (The Lessee of Grignon vs. Astor, 2 How., 319; 11 L. ed., 283.)

In making the order of sale [of the real state of a decedent] the court are presumed to have adjudged every question necessary to justify such order or decree, viz: The death of the owners; that the petitioners were his administrators; that the personal estate was insufficient to pay the debts of the deceased; that the private acts of Assembly, as to the manner of sale, were within the constitutional power of the Legislature, and that all the provisions of the law as to notices which are directory to the administrators have been complied with. . . . The court is not bound to enter upon the record the evidence on which any fact was decided. (Florentine vs. Barton, 2 Wall., 210; 17 L. ed., 785.) Especially does all this apply after long lapse of time. Applegate vs. Lexington and Carter County Mining Co. (117 U. S., 255) contains an instructive discussion in a case analogous to that which is now before us. It there appeared that in order to foreclose a mortgage in the State of Kentucky against a nonresident debtor it was necessary that publication should be made in a newspaper for a specified period of time, also be posted at the front door of the court house and be published on some Sunday, immediately after divine service, in such church as the court should direct. In a certain action judgment had been entered against a nonresident, after publication in pursuance of these provisions. Many years later the validity of the proceedings was called in question in another action. It was proved from the files of an ancient periodical that publication had been made in its columns as required by law; but no proof was offered to show the publication of the order at the church, or the posting of it at the front door of the court-house. It was insisted by one of the parties that the judgment of the court was void for lack of jurisdiction. But the Supreme Court of the United States said: The court which made the decree . . . was a court of general jurisdiction. Therefore every presumption not inconsistent with the record is to be indulged in favor of its jurisdiction. . . . It is to be presumed that the court before making its decree took care of to see that its order for constructive service, on which its right to make the decree depended, had been obeyed. It is true that in this case the former judgment was the subject of collateral , or indirect attack, while in the case at bar the motion to vacate the judgment is direct proceeding for relief against it. The same general presumption, however, is indulged in favor of the judgment of a court of general jurisdiction, whether it is the subject of direct or indirect attack the only difference being that in case of indirect attack the judgment is conclusively presumed to be valid unless the record affirmatively shows it to be void, while in case of direct attack the presumption in favor of its validity may in certain cases be overcome by proof extrinsic to the record. The presumption that the clerk performed his duty and that the court made its decree with the knowledge that the requirements of law had been complied with appear to be amply sufficient to support the conclusion that the notice was sent by the clerk as required by the order. It is true that there ought to be found among the papers on file in this cause an affidavit, as required by section 400 of the Code of Civil Procedure, showing that the order was in fact so sent by the clerk; and no such affidavit appears. The record is therefore silent where it ought to speak. But the very purpose of the law in recognizing these presumptions is to enable the court to sustain a prior judgment in the face of such an omission. If we were to hold that the judgment in this case is void because the proper affidavit is not present in the file of papers which we call the record, the result would be that in the future every title in the Islands resting upon a judgment like that now before us would depend, for its continued security, upon the presence of such affidavit among

the papers and would be liable at any moment to be destroyed by the disappearance of that piece of paper. We think that no court, with a proper regard for the security of judicial proceedings and for the interests which have by law been confided to the courts, would incline to favor such a conclusion. In our opinion the proper course in a case of this kind is to hold that the legal presumption that the clerk performed his duty still maintains notwithstanding the absence from the record of the proper proof of that fact. In this connection it is important to bear in mind that under the practice prevailing in the Philippine Islands the word record is used in a loose and broad sense, as indicating the collective mass of papers which contain the history of all the successive steps taken in a case and which are finally deposited in the archives of the clerks office as a memorial of the litigation. It is a matter of general information that no judgment roll, or book of final record, is commonly kept in our courts for the purpose of recording the pleadings and principal proceedings in actions which have been terminated; and in particular, no such record is kept in the Court of First Instance of the city of Manila. There is, indeed, a section of the Code of Civil Procedure which directs that such a book of final record shall be kept; but this provision has, as a matter of common knowledge, been generally ignored. The result is that in the present case we do not have the assistance of the recitals of such a record to enable us to pass upon the validity of this judgment and as already stated the question must be determined by examining the papers contained in the entire file. But it is insisted by counsel for this motion that the affidavit of Bernardo Chan y Garcia showing that upon April 4, 1908, he sent a notification through the mail addressed to the defendant at Manila, Philippine Islands, should be accepted as affirmative proof that the clerk of the court failed in his duty and that, instead of himself sending the requisite notice through the mail, he relied upon Bernardo to send it for him. We do not think that this is by any means a necessary inference. Of course if it had affirmatively appeared that the clerk himself had attempted to comply with this order and had directed the notification to Manila when he should have directed it to Amoy, this would be conclusive that he had failed to comply with the exact terms of the order; but such is not this case. That the clerk of the attorneys for the plaintiff erroneously sent a notification to the defendant at a mistaken address affords in our opinion very slight basis for supposing that the clerk may not have sent notice to the right address. There is undoubtedly good authority to support the position that when the record states the evidence or makes an averment with reference to a jurisdictional fact, it will not be presumed that there was other or different evidence respecting the fact, or that the fact was otherwise than stated. If, to give an illustration, it appears from the return of the officer that the summons was served at a particular place or in a particular manner, it will not be presumed that service was also made at another place or in a different manner; or if it appears that service was made upon a person other than the defendant, it will not be presumed, in the silence of the record, that it was made upon the defendant also (Galpin vs. Page, 18 Wall., 350, 366; Settlemier vs. Sullivan, 97 U. S., 444, 449). While we believe that these propositions are entirely correct as applied to the case where the person making the return is the officer who is by law required to make the return, we do not think that it is properly applicable where, as in the present case, the affidavit was made by a person who, so far as the provisions of law are concerned, was a mere intermeddler.

The last question of importance which we propose to consider is whether a motion in the cause is admissible as a proceeding to obtain relief in such a case as this. If the motion prevails the judgment of July 2, 1908, and all subsequent proceedings will be set aside, and the litigation will be renewed, proceeding again from the date mentioned as if the progress of the action had not been interrupted. The proponent of the motion does not ask the favor of being permitted to interpose a defense. His purpose is merely to annul the effective judgment of the court, to the end that the litigation may again resume its regular course. There is only one section of the Code of Civil Procedure which expressly recognizes the authority of a Court of First Instance to set aside a final judgment and permit a renewal of the litigation in the same cause. This is as follows: SEC. 113. Upon such terms as may be just the court may relieve a party or legal representative from the judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect; Provided, That application thereof be made within a reasonable time, but in no case exceeding six months after such judgment, order, or proceeding was taken. An additional remedy by petition to the Supreme Court is supplied by section 513 of the same Code. The first paragraph of this section, in so far as pertinent to this discussion, provides as follows: When a judgment is rendered by a Court of First Instance upon default, and a party thereto is unjustly deprived of a hearing by fraud, accident, mistake or excusable negligence, and the Court of First Instance which rendered the judgment has finally adjourned so that no adequate remedy exists in that court, the party so deprived of a hearing may present his petition to the Supreme Court within sixty days after he first learns of the rendition of such judgment, and not thereafter, setting forth the facts and praying to have judgment set aside. . . . It is evident that the proceeding contemplated in this section is intended to supplement the remedy provided by section 113; and we believe the conclusion irresistible that there is no other means recognized by law whereby a defeated party can, by a proceeding in the same cause, procure a judgment to be set aside, with a view to the renewal of the litigation. The Code of Civil Procedure purports to be a complete system of practice in civil causes, and it contains provisions describing with much fullness the various steps to be taken in the conduct of such proceedings. To this end it defines with precision the method of beginning, conducting, and concluding the civil action of whatever species; and by section 795 of the same Code it is declared that the procedure in all civil action shall be in accordance with the provisions of this Code. We are therefore of the opinion that the remedies prescribed in sections 113 and 513 are exclusive of all others, so far as relates to the opening and continuation of a litigation which has been once concluded. The motion in the present case does not conform to the requirements of either of these provisions; and the consequence is that in our opinion the action of the Court of First Instance in dismissing the motion was proper.

If the question were admittedly one relating merely to an irregularity of procedure, we cannot suppose that this proceeding would have taken the form of a motion in the cause, since it is clear that, if based on such an error, the came to late for relief in the Court of First Instance. But as we have already seen, the motion attacks the judgment of the court as void for want of jurisdiction over the defendant. The idea underlying the motion therefore is that inasmuch as the judgment is a nullity it can be attacked in any way and at any time. If the judgment were in fact void upon its face, that is, if it were shown to be a nullity by virtue of its own recitals, there might possibly be something in this. Where a judgment or judicial order is void in this sense it may be said to be a lawless thing, which can be treated as an outlaw and slain at sight, or ignored wherever and whenever it exhibits its head. But the judgment in question is not void in any such sense. It is entirely regular in form, and the alleged defect is one which is not apparent upon its face. It follows that even if the judgment could be shown to be void for want of jurisdiction, or for lack of due process of law, the party aggrieved thereby is bound to resort to some appropriate proceeding to obtain relief. Under accepted principles of law and practice, long recognized in American courts, a proper remedy in such case, after the time for appeal or review has passed, is for the aggrieved party to bring an action to enjoin the judgment, if not already carried into effect; or if the property has already been disposed of he may institute suit to recover it. In every situation of this character an appropriate remedy is at hand; and if property has been taken without due process, the law concedes due process to recover it. We accordingly old that, assuming the judgment to have been void as alleged by the proponent of this motion, the proper remedy was by an original proceeding and not by motion in the cause. As we have already seen our Code of Civil Procedure defines the conditions under which relief against a judgment may be productive of conclusion for this court to recognize such a proceeding as proper under conditions different from those defined by law. Upon the point of procedure here involved, we refer to the case of People vs. Harrison (84 Cal., 607) wherein it was held that a motion will not lie to vacate a judgment after the lapse of the time limited by statute if the judgment is not void on its face; and in all cases, after the lapse of the time limited by statute if the judgment is not void on its face; and all cases, after the lapse of such time, when an attempt is made to vacate the judgment by a proceeding in court for that purpose an action regularly brought is preferable, and should be required. It will be noted taken verbatim from the California Code (sec. 473). The conclusions stated in this opinion indicate that the judgment appealed from is without error, and the same is accordingly affirmed, with costs. So ordered. Arellano, C.J., Torres, Carson, and Avancea, JJ., concur. Separate Opinions MALCOLM, J., dissenting: I dissent. It will not make me long to state my reasons. An immutable attribute the fundamental idea of due process of law is that no man shall be condemned in his person or property without notice and an opportunity of being heard in his defense. Protection of the parties demands a strict and an exact compliance with this constitutional provision in our organic

law and of the statutory provisions in amplification. Literally hundreds of precedents could be cited in support of these axiomatic principles. Where as in the instant case the defendant received no notice and had no opportunity to be heard, certainly we cannot say that there is due process of law. Resultantly, A judgment which is void upon its face, and which requires only an inspection of the judgment roll to demonstrate its want of vitality is a dead limb upon the judicial tree, which should be lopped off, if the power so to do exists. It can bear no fruit to the plaintiff, but is a constant menace to the defendant. (Mills vs. Dickons, 6 Rich [S. C.], 487.)

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-6157 July 30, 19101

W. CAMERON FORBES, J. E. HARDING, and C. R. TROWBRIDGE, plaintiffs, vs. CHUOCO TIACO (alias CHOA TEA) and A. S. CROSSFIELD, defendants. W. A. Kincaid, for plaintiffs. O'Brien and DeWitt and Hartford Beaumont, for defendant Chuoco Tiaco. JOHNSON, J.: An original action commenced in this court to secure a writ of prohibition against the Hon. A. S. Crossfield, as one of the judges of the Court of First Instance of the city of Manila, to prohibit him from taking or continuing jurisdiction in a certain case commenced and pending before him, in which Chuoco Tiaco (alias Choa Tea) (respondent herein) is plaintiff, and W. Cameron Forbes, J. E. Harding, and C. R. Trowbridge (petitioners herein) are defendants. Upon the filing of the petition in this court, Mr. Justice Trent granted a preliminary injunction restraining the said lower court from proceeding in said cause until the question could be heard and passed upon by the Supreme court. The questions presented by this action are so important and the result of the conclusions may be so far reaching that we deem it advisable to make a full statement of all of the facts presented here for consideration. These facts may be more accurately gathered from the pleadings. They are as follows: FACTS. SECOND AMENDED COMPLAINT.

The plaintiffs set forth: I. That all the parties in this case reside in the city of Manila, Philippine Islands. II. That the plaintiff W. Cameron Forbes is the Governor-General of the Philippine Islands and that the plaintiff J. E. Harding and C. R. Trowbridge are, respectively, chief of police and chief of the secret service of the city of Manila. III. That the defendant A. S. Crossfield is one of the judges of the Court of First Instance of the city of Manila. IV. That the defendant Chuoco Tiaco (alias Choa Tea) is a foreigner of Chinese nationality and a subject of the Chinese Empire. V. That on the 1st of April, 1910, the defendant Chuoco Tiaco (alias Choa Tea) filed a suit in the Court of First Instance of the city of Manila against the plaintiffs in which substantially the following allegations and petition were made, alleging that on the 19th of August, 1909, under the orders of the said W. Cameron Forbes, Governor-General of the Philippine Islands, he was deported therefrom and sent to Amoy, China, by the aforesaid J. E. Harding and C. R. Trowbridge, chiefs, as above stated, of the police and of the secret service, respectively, of the city of Manila, and that having been able to return to these Islands he feared, as it was threatened, that he should be again deported by the said defendants, concluding with a petition that a preliminary injunction should be issued against the plaintiffs in this case prohibiting them from deporting the defendant, Chuoco Tiaco (alias Choa Tea), and that they be sentenced to pay him P20,000 as an indemnity. VI. It is true that the said defendant Chuoco Tiaco (alias Choa Tea), was, with eleven others or his nationality, expelled from these Islands and returned to China by the plaintiffs J. E. Harding and C. R. Trowbridge, under the orders of the plaintiff W. Cameron Forbes, on the date mentioned in Paragraph V of this complaint, but the said expulsion was carried out in the public interest of the Government and at the request of the proper representative of the Chinese Government in these Islands, to wit, the consulgeneral of said country, the said W. Cameron Forbes acting in his official capacity as such Governor-General, the act performed by this plaintiff being one of the Government itself and which the said plaintiff immediately reported to the Secretary of War. VII. The said complaint having been filed with the defendant A. S. Crossfield, he, granting the petition, issued against the plaintiffs the injunction requested, prohibiting them from deporting the defendant Chuoco Tiaco (alias Choa Tea). VIII. The plaintiffs having been summoned in the matter of the said complaint, filed a demurrer against the same and presented a motion asking that the injunction be dissolved, the grounds of the demurrer being that the facts set out in the complaint did not constitute a motive of action, and that the latter was one in which the court lacked jurisdiction to issue such an injunction against the plaintiffs for the reasons set out in the complaint; notwithstanding which, the defendant A. S. Crossfield overruled the demurrer and

disallowed the motion, leaving the complaint and the injunction standing, in proof of which the plaintiffs attach a certified copy by the clerk of the Court of First Instance of the city of Manila of all the proceedings in said case, except the summons and notifications, marking said copy "Exhibit A" of this complaint. (See below.) IX. The Court of First Instance, according to the facts related in the complaint, lacks jurisdiction in the matter, since the power to deport foreign subjects of the Chinese Empire is a private one of the Governor-General of these Islands, and the defendant A. S. Crossfield exceeded these authority by trying the case and issuing the injunction and refusing to allow the demurrer and motion for the dismissal of the complaint and the dissolution of the injunction. Therefore the plaintiffs pray the court: (a) That an injunction immediately issue against the defendant A. S. Crossfield ordering him to discontinue the trial of said cause until further orders from this court; (b) That the defendants being the summoned in accordance with law, a prohibitive order issue against the said defendant A. S. Crossfield, restraining him from assuming jurisdiction in said case and ordering him to dismiss the same and cease from the trial thereof; (c) Finally, that the plaintiffs be granted such other and further relief to which they may be entitled according to the facts, and that they may be allowed the costs of the trial. Manila, July 9, 1910. IGNACIO VILLAMOR, Attorney-General. W. A. KINCAID, THOMAS L. HARTIGAN, By W. A, KINCAID, Attorneys for the plaintiffs. UNITED STATES OF AMERICA, Philippine Islands, city of Manila, ss: W. A. Kincaid, being first duly sworn, states that he is one of the attorneys for the plaintiffs in the preceding second amended complaint, and that all the facts alleged therein are true, to the best of his knowledge and belief.

(Signed) W. A. KINCAID. Subscribed and sworn to before me this 9th day of July, 1910. Cedula No. F. 1904, issued in Manila on January 3, 1910. (Signed) IGNACIO DE ICAZA, 31, 1910.) We have received a copy of the above. (Signed) O'BRIEN AND DEWITT, HARTFORD BEAUMONT, Attorneys for defendants. EXHIBIT A. [United States of America, Philippine Islands. In the Court of First Instance of the city of Manila. No. 7740. Chuoco Tiaco (alias Choa Tea), plaintiff, vs. W. Cameron Forbes, Charles R. Trowbridge, and J. E. Harding, defendants.] COMPLAINT. Comes now the plaintiff, by his undersigned attorneys, and for the cause of action alleges: First. That the plaintiff is and has been for the last thirty-five years a resident of the city of Manila, Philippine Islands. Second. That the defendant W. Cameron Forbes is the Governor-General of the Philippine islands and resides in the municipality of Baguio, Province of Benguet, Philippine Islands; that the defendant Charles R. Trowbridge is chief of the secret service of the city of Manila, and that the defendant J. E. Harding is chief of police of the city of Manila, and that both of said defendants reside in the said city of Manila, Philippine Islands. Third. That the said plaintiff is a Chinese person and is lawfully a resident of the Philippine Islands, his right to be and remain therein having been duly established in accordance with law by the Insular customs and immigration authorities. Fourth. That on or about the 19th day of August, 1909, the defendants herein, Charles R. Trowbridge and J. E. Harding, unlawfully and fraudulently conspiring and conniving with the other defendant herein, the said W. Cameron Forbes, and acting under the direction of the said defendant, W. Charles Forbes, did unlawfully seize and carry on board the steamer Yuensang the said plaintiff herein against his will, with the intent by Notary Public. (My appointment ends Dec.

said force to unlawfully deport and expel the said plaintiff herein from the Philippine Islands against the will of the said plaintiff herein. Fifth. That the said defendants herein and each of them, after forcibly placing the said plaintiff herein upon the said streamer Yuensang, as hereinbefore alleged, did cause the said steamer Yuensang to take and carry away the plaintiff herein from the Philippine Islands to the port of Amoy, in the Empire of China. Sixth. That the said defendants herein, unlawfully conspiring and conniving together, the said Charles R. Trowbridge and the said J. E. Harding, acting under the direction of the said defendant, W. Cameron Forbes, did forcibly prevent the plaintiff herein from returning to these Philippine Islands until the 29th day of March, 1910. Seventh. That the defendants herein, by their unlawful acts hereinbefore alleged, have damaged the plaintiff herein in the sum of twenty thousand pesos (P20,000) Philippine currency. SECOND CAUSE OF ACTION. As a second cause of action the plaintiff alleges: First. He repeats and reiterates each and every allegation contained in the first (1st) and second (2nd) paragraphs of the first cause of action, and hereby makes the said paragraphs a part of this cause of action. Second. That the said plaintiff herein is a Chinese person who is and has been a resident of the Philippine Islands for the last twenty-nine years, he having duly established his right to be and remain in the Philippine Islands since the American occupation thereof in accordance with law. Third. That the said plaintiff herein, during his residence in these Islands, has acquired and is actually the owner, or part owner, of property and business interests and enterprises of great value within the Philippine Islands, and that said property and business interests and enterprises require the personal presence of the plaintiff herein in the Philippine Islands for the proper management and supervision and preservation thereof. Fourth. That the plaintiff has a family in the Philippine Islands and that said family is dependent upon the said plaintiff for support and that it is impossible for the said plaintiff to give the said family that support unless he, the said plaintiff, is actually present within the Philippine Islands. Fifth. That on or about the 19th day of August, 1909, the defendants herein, Charles R. Trowbridge and J. E. Harding, unlawfully and fraudulently conspiring and conniving with the other defendant herein, the said W. Cameron Forbes, and acting under the direction of the said defendant, W. Cameron Forbes, did unlawfully seize and carry on

board the steamer Yuensang the said plaintiff herein with the intent by said force to unlawfully deport and expel the said plaintiff herein from the Philippine Islands against the will of the said plaintiff herein. Sixth. That, notwithstanding the efforts of the said defendants herein to forcibly and unlawfully prevent the said plaintiff herein from returning to the Philippine Islands, the said plaintiff here in returned to the said city of Manila, Philippine Islands, on the 29th day of March, 1910, and was duly landed by the customs and immigration authorities in accordance with law, after having duly established his right to be and to remain herein. Seventh. That since the arrival of the said plaintiff herein in the Philippine Islands on the 29th day of March, 1910, as hereinbefore alleged, the said defendants herein unlawfully and fraudulently conniving and conspiring together, the said J. E. harding and Charles R. Trowbridge, acting under the orders and directions of the said defendant, W. Cameron Forbes, have threatened, unlawfully, forcibly, and against the will of the plaintiff herein, to expel and deport plaintiff herein from the Philippine Islands, and that the defendants herein, and each and every one of them are doing all that is in their power to procure the unlawful, forcible, and involuntary expulsion of the plaintiff herein from the Philippine Islands in violation of the right of the said plaintiff herein to be and to remain in the Philippine Islands as established by law. Eight. That the plaintiff herein has no adequate remedy other than that herein prayed for. Wherefore, the plaintiff prays that a temporary writ of injunction issue out of this court enjoining the said defendants and each of them and their and each of their agents, servants, employees, attorneys, successors in office, subordinate officers, and every person in any way in privity with them, from expelling or deporting or threatening to expel or deport or procure in any way the expulsion or deportation in any way of the plaintiff herein during the continuance of this action. And upon the final hearing of the cause of the said temporary writ of injunction be made perpetual, and that the defendants and each of them be condemned to pay to the plaintiff herein the sum of twenty thousand pesos (P20,000) damages and the costs of this action. Manila, P. I., April 1, 1910. (Signed) O'BRIEN AND DEWITT, H. BEAUMONT, Attorneys for plaintiff. CITY OF MANILA, Philippine Islands, ss: C. W. O'Brien, holding cedula No. 1095, dated at Manila, P. I., January 4, 1910, being duly sworn, upon oath deposes and says that he is one of the attorneys for the plaintiff

and has read the above-entitled complaint and knows that the facts therein stated are true and correct, except such as are stated upon information and belief, and as to those he believes them to be true. (Signed) C. W. O'BRIEN. Subscribed and sworn to before me this 1st day of April, 1910, at Manila, P.I. (Signed) J. McMICKING. The Hon. A. S. Crossfield issued the following order: ORDER. To the defendants, W. Cameron Forbes, Charles R. Trowbridge, J. E. Harding, and all their attorneys, agents, subordinates, servants, employees, successors in office, and all persons in any way in privity with them, greeting: The plaintiff having presented a complaint before this Court of First Instance of the city of Manila, in the cause above entitled, against the defendants W. Cameron Forbes, Charles R. Trowbridge, and J. E. Harding, above named, and having prayed likewise that a temporary injunction issue against the said defendants restraining them from doing and continuing to do certain acts mentioned in the said complaint and which are more particularly set forth hereinafter in this order; in view of the said complaint and the verification thereof by this attorney, and it appearing satisfactorily to me because of the facts alleged in said complaint that the case is one in which a preliminary injunction ought to issue, and the required bond having been executed in the sum of P2,000. It is hereby ordered by the undersigned, judge of this Court of First Instance of the city of Manila, that the said defendants, W. Cameron Forbes, Charles R. Trowbridge, and J. E. Harding, and all of their attorneys, agents, subordinates, servants, employees, successors in office, and all persons in any way in privity with them, are, each of them is, hereby restrained and enjoined from spelling or deporting or threatening to expel or deport, or procuring in any way the expulsion or deportation in any way of the plaintiff herein during the continuance of this action. Manila, P.I. , April 9, 1910. (signed) A. S. CROSSFIELD, Judge, Court of First Instance, city of Manila, P. I. DEMURRER. Comes the defendant, W. Cameron Forbes, Governor-General of the Philippine Islands, and

I. Demurs to the first count or cause of action in the complaint because the same does not state fact sufficient to constitute a cause of action against the defendant. II. He demurs to the second count or cause of action in the complaint because the same does not state facts sufficient to constitute a cause of action against this defendant. Wherefore he prays the judgment of the court upon the sufficiency of each of the pretended causes of action set forth in the complaint. (Signed) W. A. KINCAID, THOMAS L. HARTIGAN. By W. A. KINCAID, Attorneys for defendant W. Cameron Forbes. Comes the defendant, W. Cameron Forbes, and moves the court to dissolve the temporary injunction issued against him in this cause, without notice to this defendant, for the following reasons: I. The complaint is insufficient to justify the issuance of the injunction. II. The court is without jurisdiction to issue said injunction. (Signed) W. A. KINCAID and THOMAS HARTIGAN, By W. A. KINCAID, Attorneys for defendant W. Cameron Forbes. (Signed) IGNACIO VILLAMOR, Attorney-General.

DEMURRER. Come the defendants, C. R. Trowbridge and J. E. Harding, and I. Demur to the first count or cause of action in the complaint because the same does not state facts sufficient to constitute a cause of action against these defendants. II. They demur to the second count or cause of action in the complaint because the same does not state facts sufficient to constitute a cause of action against these defendants. (Signed) W. A. KINCAID,

THOMAS HARTIGAN, By W. A. KINCAID, Attorneys for defendants C. R. Trowbridge and J. E. Harding. (Signed) IGNACIO VILLAMOR, ORDER. This case is now before the court for hearing the demurrer presented by the defendants to plaintiff's complaint and defendants' motion to dissolve the injunction issued against the defendants upon plaintiff's complaint. Messrs. O'Brien and DeWitt appeared for the plaintiff; W. A. Kincaid, esq., for the defendants. The demurrer is based upon the ground that the complaint does not state the facts sufficient to constitute a cause of action. The motion to dissolve the injunction is grounded upon an insufficiency of the complaint and lack of jurisdiction in the court. Counsel for both parties made exhaustive arguments, both apparently considering the primal issue to be whether the defendant, W. Cameron Forbes, had authority at law, as Governor-General of the Philippine Islands, to deport plaintiff, as alleged in the complaint, and whether the court had jurisdiction to restrain him from making such deportation. No question was raised as to the sufficiency of the complaint if all question as to the Governor-General's authority was eliminated. A reading of the complaint discloses that the Governor-General of the Philippine Islands, as such, is not a party to the action. The allegations of the second paragraph of the complaint, to the effect that W. Cameron Forbes is the Governor-General of the Philippine Islands, that Charles R. Trowbridge is chief of the secret service of Manila, are descriptive only, and there is no allegation in the complaint that any of the defendants performed the acts complained of in his official capacity. The court can not determine the authority or liability of an executive officer of the Government until the pleadings disclose that his actions as such officer are brought in issue. The complaint upon its faces a cause of action. Attorney-General.

The complaint, stating a cause of action and alleging that the plaintiff is threatened with an injury by the defendants, they may be properly restrained from committing the alleged injury until issues raised have been tried and determined and the courts has jurisdiction to issue an injunction. The demurrer is, therefore, overruled. The motion to dissolve the preliminary injunction is denied. Manila, P. I., this 17th day of May, 1910. (Signed) A. S. CROSSFIELD, Judge. Upon filing of the original complaint and after a due consideration of the facts stated therein, the Hon. Grant Trent, acting as vacation justice, on the 24th day of May, 1910, issued the following order or injunction: PRELIMINARY INJUNCTION. Whereas, from the facts alleged in the complaint filed in the above-entitled case, it is found that the plaintiffs are entitled to the preliminary injunction prayed for by them; Therefore, the bond of P500 mentioned in the order of the 24th of May, 1910, having been filed, the Hon. A. s. Crossfield, judge of the Court of First Instance of the city of Manila, is hereby notified that, until he shall have received further orders from this court, he is prohibited from proceeding with the trial of the case filed by the defendant Chuoco Tiaco, alias Choa Tea, in the Court of First Instance of this city, against the within plaintiffs for indemnity as damages for the alleged deportation of the said Chuoco alias Choa Tea. Given in Manila this 24th day of May, 1910. (Signed) GRANT TRENT, Associate Justice, Supreme Court, acting in vacation. On the 2nd of June, 1910, the defendants presented the following demurrer to the original complaint: And now come the defendants in the above-entitled cause, by their undersigned attorneys, and hereby file their demurrer to the complaint upon the grounds that the facts alleged in the complaint do not constitute a right of action. Therefore the court is petitioned to dismiss the complaint, with the costs against the plaintiff.

Manila, June 2, 1910. (Signed) O'BRIEN & DEWITT, and Attorneys for defendants. To the plaintiffs or their attorneys; You are hereby notified that on Monday, the 15th inst., at nine o'clock in the morning, we shall ask the court to hear and decide the preceding demurrer. Manila, June 2, 1910. (Signed) O'BRIEN & DEWITT, and Attorney for plaintiffs. We have this day, June 2, 1910, received a copy of the above. (Stamp) W. A. KINCAID and THOMAS L. HARTIGAN, By J. BORJA, Attorneys for plaintiffs. On the 2nd day of June, 1910, the defendants made a motion to dissolve the said injunction, which motion was in the following language: And now come the defendants in the above-entitled case and pray the court to dissolve the preliminary injunction issued in the above-entitled case, on the 24th day of May, 1910, on the grounds: (1) That the facts alleged in the complaint are not sufficient to justify the issuance of the said preliminary investigation; (2) That the facts alleged in the complaint do not constitute a right of action. Manila, P.I., June 2, 1910. (Signed) O'BRIEN & DEWITT, and HARTFORD BEAUMONT, Attorneys for defendants. To the plaintiffs and to their attorneys: You are hereby notified that on Monday, the 13th inst., at nine o'clock a.m. we shall ask for a hearing on the preceding motion. Manila, June 2, 1910. HARTFORD BEAUMONT, HARTFORD BEAUMONT,

(Signed) O'BRIEN & DEWITT, and HARTFORD BEAUMONT, Attorneys for defendants. We have this day received a copy of the foregoing. (Stamp) W. A. KINCAID and THOMAS L. HARTIGAN, By J. BORJA, Attorneys for plaintiffs. Later the plaintiffs obtained permission to file the second amended complaint above quoted. By a stipulation between the parties "the demurrer" and "motion to dissolve" were to be considered as relating to the said second amended complaint. By said "demurrer" and "motion to dissolve" the question is presented whether or not the facts stated in "the second amended complaint" are sufficient upon which to issue the writ of prohibition prayed for. If it should be determined that they are not, then, of course, the writ should be denied and the injunction should be dissolved. If, on the other hand, it should be determined that the facts stated are sufficient to justify the issuance of said writ, then it should be granted and the injunction should not be dissolved, but should not be made perpetual. From the allegations of the complaint (second amended complaint), including Exhibit A (which constituted the pleadings in the court below), we find the following facts are admitted to be true: First. That the plaintiff W. Cameron Forbes is the Governor-General of the Philippine Islands; Second. That the plaintiff J. E. Harding is the chief of police of the city of Manila; Third. That the plaintiff C. R. Trowbridge is the chief of the secret service of the city of Manila; Fourth. That the defendant, A. S. Crossfield, is one of the judges of the Court of First Instance of the city of Manila; Fifth. That the defendant Chuoco Tiaco (alias Choa Tea) is a foreigner of Chinese nationality and a subject of the Chinese Empire; Sixth. That the plaintiff W. Cameron Forbes, acting in his official capacity as Governor-General of the Philippine Islands, in the public interest of the Philippine Government and at the request of the proper representative of the Imperial Government of China, to wit: the consul-general of the said Imperial Government, did, on or about the 19th day of August, 1909, order the said defendant, together with eleven others of Chinese nationality, to be deported from the Philippine Islands; Seventh. That whatever the said plaintiffs J. E. Harding and C. R. Trowbridge did in connection with said deportation was done by each of them, acting under the orders of the said GovernorGeneral, as the chief of police of the city of Manila and as the chief of the secret service of the city of Manila;

Eight. That later, and on the 29th day of March, 1910, the said defendant Chouco Tiaco returned to the Philippine Islands; Ninth. That the plaintiff W. Cameron Forbes, acting through the said chief of police and the said chief of the secret service, was threatening to again deport the said Chuoco Tiaco from the Philippine Islands; Tenth. That upon the 1st day of April, 1910, the said Chuoco Tiaco commenced an action against the plaintiff herein (the said W. Cameron Forbes, Governor-General) in the Court of said court over which the said A. S. Crossfield was presiding as one of the judges of said court, for the purpose of (a) Recovering a judgment against said defendants (plaintiffs herein) for P20,000 damages for said alleged wrongful deportation; and (b) To procure an injunction against said defendants (plaintiffs herein) to prevent them from again deporting said plaintiff (defendant herein) from the Philippine Islands; Eleventh. That upon the presentation or filing of the petition in the said action in the Court of First Instance and on the 9th day of April, 1910, the said A. S. Crossfield issued a preliminary injunction against the defendants, W. Cameron Forbes, J. E. Harding, and C. R. Trowbridge, and all their attorneys, agents, subordinates, servants, employees, successors in office, and all persons in any way in privity with them, forbidding them from expelling or deporting or threatening to expel or deport or procuring in any way the expulsion or deportation of the plaintiff (chuoco Tiaco) during the continuance of the action; Twelfth. Later, and on the .......... day of ........., 1910, the plaintiffs herein (defendants below) each presented (1) A demurrer to the causes of action described in the petition filed; and (2) A motion to dissolve the said preliminary injunction upon the general grounds (a) That the facts alleged were not sufficient to constitute a cause of action or for the issuance of the injunction; and (b) Because the court was without jurisdiction. Thirteenth. On the 17th day of May, 1910, A. S. Crossfield, after hearing the arguments of the respective parties, found (1) That the fact alleged in the petition did constitute a cause of action; and (2 That the Court of First Instance did have jurisdiction to try the questions presented.

Fourteenth. On the 24th day of May, 1910, the plaintiffs herein, through their attorney, W. A. Kincaid, presented a petition in the Supreme Court asking that (a) An injunction be issued against the said A. S. Crossfield, restraining him from proceeding in said action until further orders from this court; and (b) That the writ of prohibition be granted against the said judge, forbidding him from taking jurisdiction of said action and to dismiss the same. Fifteenth. On the 24th day of May, 1910, the Hon. Grant Trent, Associate Justice, acting in vacation, issued the preliminary injunction prayed for. On the 2nd day of June, 1910, the attorneys for the defendants (herein), Messrs. O'Brien and DeWitt, and Hartforf Beaumont, filed: (1) A demurrer to the petition; and (2) A motion to dissolve said injunction, each based upon the general ground that the facts alleged in the petition were insufficient to constitute a cause of action. The said "demurrer" and "motion to dissolve" were brought on for hearing before the Supreme Court on the 11th day of July, 1910, and the questions presented were argued at length by the attorneys for the respective parties. One of the questions which is presented by the pleadings and by the arguments presented in the cause is whether or not the action pending in the lower court is an action against the GovernorGeneral, as such, as well as against the other defendant in their official capacity. If it should be decided that the action is one against the defendants in their official capacity, then the question will be presented for decision whether or not the courts have jurisdiction over the GovernorGeneral, for the purpose of reviewing his action in any case and with especial reference to the facts presented. The pleadings presented in this court affirmatively allege that the action in the lower court was against the defendants (plaintiffs herein) in their official capacity. The pleadings here also allege positively that the acts complained of in the lower court were done by the defendants in their official capacity; that the expulsion of the defendant (plaintiff below) was in the public interest of the Government, at the request of the consul-general of the Imperial Government of China; that the said plaintiffs J. E. Harding and C. R. Trowbridge acted under the orders of the plaintiff W. Cameron Forbes; that W. Cameron Forbes acted in his official capacity as Governor-General, the act being an act of the Government itself, which action was immediately reported to the Secretary of War. The pleadings in the lower court simply described the defendants (plaintiffs herein) as W. Cameron Forbes, the Governor-General; J. E. Harding, chief of police of the city of Manila, and C. R. Trowbridge, chief of the secret service of the city of Manila. The lower court held that:

The allegations of the second paragraph of the complaint, to the effect that W. Cameron Forbes is the Governor-General of the Philippine Islands, that Charles R. Trowbridge is the chief of the secret service of Manila, and that J. E. Harding is the chief of police of Manila, are descriptive only, and there is no allegation in the complaint that any of the defendants (plaintiffs herein) performed the acts complained of in his official capacity. The theory of the lower court evidently was that the defendants should have been described, for example, "W. Cameron Forbes, as Governor-General," etc. In this theory the lower court has much authority in its support. However, this failure of correct and technical description of the parties is an objection which the parties themselves should present, but when all the parties treat the action as one based upon a particular theory, that theory should be accepted. Upon this question the lower court, in his order, said: Counsel for both parties made exhaustive arguments, both apparently considering the primal issue to be whether the defendant, W. Cameron Forbes, had authority at law, as Governor-General of the Philippine Islands, to deport plaintiff, as alleged in the complaint and whether the court had jurisdiction to restrain him from making such deportation. It will be noted also that the prayer of the complaint in the lower court asked for relief against "his successors in office." The injunction also ran against "his successors in office." Thus clearly it appears that the action was against the defendants in their official capacity. In this court there was no pretension by the attorney for the defendant (plaintiff below) that the action was not against the Governor-General as Governor-General, and the others as well, in their official capacity. In fact, when an inquiry was made of the attorney for the defense concerning his theory, his reply was simply that the acts of the Governor-General, being illegal, were not performed in his official capacity. The argument of the attorney for the defendant was directed to the proposition that the GovernorGeneral, in deporting or expelling the said Chinamen, did not act in accordance with that provision of the Philippine Bill (sec. 5, Act of Congress, July 1, 1902), which provides that: No law shall be enacted in said Islands which shall deprive any person of life, liberty, or property, without due process of law; or deny to any person therein equal protection of the laws. The attorney for the plaintiffs, in answering this argument, maintained: First. That the act of the Governor-General was the act of the Philippine Government and that he had a right, inherent in him as the representative of the Government and acting for the Government, to deport or expel the defendant; and Second. In the absence of express rules and regulations for carrying such power into operation, he (the Governor-General) had a right to use his own official judgment and discretion in the exercise of such power.

In order to arrive at a correct solution of the questions presented by the foregoing facts, we shall discuss the following propositions: I. WHAT ARE THE POWERS OF THE PHILIPPINE GOVERNMENT TO DEPORT OR EXPEL OBJECTIONABLE ALIENS? The Government of the United States in the Philippine Islands is a government with such delegated, implied, inherent, and necessary military, civil, political, and police powers as are necessary to maintain itself, subjected to such restrictions and limitations as the people of the United States, acting through Congress and the President, may deem advisable, from time to time, to interpose. (Instructions of the President McKinley to the Taft Commission; executive order of President McKinley dated June 21, 1910, appointing Mr. Taft Civil Governor of the Philippine Islands; that part of the Act of Congress of March 2, 1901, known as the Spooner Amendment; Barcelon vs. Baker, 5 Phil. Rep., 87; U. S. vs. Bull, 15 Phil. Rep., 7, 8 Off. Gaz., 271.) The Spooner Amendment provided that All military, civil, and judicial powers necessary to govern the Philippine Islands . . . shall, until otherwise provided by Congress, be vested in such person and persons, and shall be exercised in such manner, as the President of the United States shall direct, for the establishment of civil governments and for maintaining and protecting the inhabitants of said Islands in the free enjoyment of their liberty, property, and religion. By this Act of Congress a system of government was established in the Philippine Islands which carried with it the right and duty on the part of such government to perform all acts that might be necessary or expedient for the security, safety, and welfare of the people of the Islands. In the case of United States vs. Bull, this court, speaking through Mr. Justice Elliot, said: Within the limits of its authority the Government of the Philippine Islands is a complete governmental organisms, with executive, legislative, and judicial departments exercising the functions commonly assigned to such departments. The separation of powers is as complete as in most governments. Having reached the conclusion that the Government of the United States in the Philippine Islands is a government with all the necessary powers of a government, subject to certain control in the exercise thereof, we are of the opinion and so hold, that it has impliedly or inherently itself in conformity with the will of the Congress of the United States and the President thereof, and to this end it may prevent the entrance into or eliminate from its borders all such aliens whose presence is found to be detrimental or injurious to its public interest, peace, and domestic tranquility. Every government having the dignity of a government possesses this power. Every author who has written upon the subject of international law and who has discussed this question has reached the same conclusion. Among these authors may be mentioned such noted men and

statemen as Vattel, Ortolan, Blackstone, Chitty, Phillimore, Puffendorf, Fiore, Martens, Lorimer, Torres, Castro, Bello, Heffer, Marshall, Cooley, Wharton, Story, Moore, Taylor, Oppenheim, Westlake, Holland, Scott, Haycroft, Craies, Pollock, Campbell, and others. Not only have all noted authors upon this question of international law reached this conclusion, but all the courts before which this particular question has been involved have also held that every government has the inherent power to expel from its borders aliens whose presence has been found detrimental to the public interest. This court, speaking through its Chief Justice, in the case of In re Patterson (i Phil. Rep., 93), said: Unquestionably every State has a fundamental right to its existence and development, and also to the integrity of its territory and the exclusive and peaceable possession of its dominions, which it may guard and defend by all possible means against any attack. . . . We believe it is a doctrine generally professed by virtue of that fundamental right to which we have referred that under no aspect of the case does this right of intercourse give rise to any obligation on the part of the State to admit foreigners under all circumstances into its territory. The international community, as Martens says, leaves States at liberty to fix the conditions under which foreigners should be allowed to enter their territory. These conditions may be more or less convenient to foreigners, but they are a legitimate manifestation of territorial power and not contrary to law. In the same way a State may possess the right to expel from its territory any foreigner who does not conform to the provisions of the local law. (Marten's Treatise on International Law, vol. 1, p. 381.) Superior to the law which protest personal liberty, and the agreements which exist for their own interests and for the benefit of their respective subjects, is the supreme and fundamental right of each State to self-preservation and the integrity of its dominion and its sovereignty. Therefore it is not strange that this right should be exercised in a sovereign manner by the executive power, to which is especially entrusted, in the very nature of things, the preservation of so essential a right, without interference on the part of the judicial power. If it can not be denied that under normal circumstances when foreigners are present in the country the sovereign power has the right to take all necessary precautions to prevent such foreigners from imperiling the public safety and to apply repressive measures in case they should abuse the hospitality extended to them, neither can we shut our eyes to the fact that there may be danger to personal liberty and international liberty if to the executive branch of the government there should be conceded absolutely the power to order the expulsion of foreigners by means of summary and discretional proceedings; nevertheless, the greater part of modern laws, notwithstanding these objections, have sanctioned the maxim that the expulsion of foreigners is a political measure and that the executive power may expel, without appeal, any person whose presence tends to disturb the public peace. The Supreme Court of the United States, speaking through Mr. Justice Field, in the case of Chao Chan Ping vs. United States (130 U. S., 581) (A. D. 1888) said:

These laborers are not citizens of the United States; they are aliens. That the Government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence, subject to the control of another power. The United States in their relation to foreign countries and their subjects or citizens are one nation invested with powers which belong to independent nations, the exercise of which can be invoked for the maintenance of its absolute independence and security throughout its entire territory. . .. . . . The power of exclusion of foreigners being an incident of sovereignty, belonging to the Government of the United States as a part of those sovereign powers delegated by the Constitution, the right to its exercise at nay time when, in the judgment of the Governments, the interests of the country require it, can not be granted away or restrained on behalf of anyone. The powers of the Government are delegated in trust to the United States and are incapable of transfer to any other parties. They (the incidents of sovereignty),can not be abandoned or surrendered nor can their exercise be hampered when needed for the public, by any consideration of private interests. In the case of Ekiu vs. United States (142 U. S., 651, 659) (A. D. 1891) the Supreme Court of the United States, speaking through Mr. Justice Gray, said: It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions or to admit them only in such cases and upon such conditions as it may see fit to prescribe. In the United States this power is vested in the National Government, to which the Constitution has committed the entire control of international relations, in peace as well as in war. It belongs to the political department of the Government and may be exercised either through treaties made by the President and Senate or through statutes enacted by Congress. Later, The Supreme Court of the United States, in the case of Fong Yue Ting vs. United States (149 U. S., 698) (A. D. 1892), speaking through Mr. Justice Gray, again said: The right of a nation to expel or deport foreigners who have not been naturalized or taken any steps toward becoming citizens of the country, rests upon the same grounds and is as absolute and unqualified as the right to prohibit and prevent their entrance into the country. The power to exclude or expel aliens being a power affecting international relations is vested in the political department of the Government. The power to exclude aliens and the power to expel them rest upon one foundation, are derived from one source, are supported by the same reasons, and are, in truth, but the exercise of one and the same power. In a very recent case The Attorney-General of Canada vs. Cain (House of Lords Reports, Appeal Cases, 1906), Lord Atkinson, speaking for the court said (p. 545):

In 1763 Canada and all its dependencies, with the sovereignty, property, and possession, and all other rights which had at ant time been held or acquired by the Crown of France, were ceded to Great Britain (St. Catherine's Milling and Lumber Company vs. Reg., 145 Appeal cases, 46, 53). Upon that event the Crown of England became possessed of all legislative and executive powers within the country so ceded to it and save so far as it has since parted with these powers by legislation, royal proclamation, or voluntary grant, it is still possessed of them. One of the rights possessed by the supreme power in every State is the right to refuse to permit an alien to enter that State, to annex what conditions it pleases to the permission to enter it, and to expel or deport from the State, at pleasure, even a friendly alien, especially if it considers his presence in the State opposed to its peace, order, and good government, or to its social or material interests. (Citing Vattel's Law of Nations in support of his proposition.) In the case of Hodge vs. Reg. (9 Appeal Cases, 117) it was decided that a colonial legislature, under the British Government, has, within the limits prescribed by the statute which created it, an authority as plenary and as ample as the imperial parliament in the plenitude of its power possessed and could bestow. See also In re Adams, 1 Moore's Privy Council, 460, 472-476 (A. D. 1837); Donegani vs. Donegani, 3 Knapp, 63, 68 (A. D. 1835); Cameron vs. Kyte, 3 Knapp, 332, 343 (A. D. 1835); Mustgrave vs. Pulido, Law Reports, 5 Appeal Cases, 102 (A. D. 1879); Nudtgrave vs. Chun Teong Toy, Law Reports, Appeal cases, 272 (a. D. 1891); Hill vs. Bigge, 3 Moore's Privy Council, 465; The Nabob of Carnatic vs. The East Indian Company, 1 Vese, Jr., 388; Fabrigas vs. Mostyn, 1 Cowpoer, 161. Mr. Vattel, writing as early as 1797, in discussing the question of the right of nation or government to prevent foreigners from entering its territory or to expel them, said: Every nation has the right to refuse to admit a foreigner into the country when he can not enter without putting the nation in evident danger or doing it manifest injury. What it (the nation) owes to itself, the care of its own safety, gives to it this right; and in virtue of its national liberty, it belongs to the nation to judge whether its circumstances will or will not justify the admission of the foreigner. Thus, also, it has a right to send them elsewhere it if has just cause to fear that they will corrupt the manners of the citizens; that they will create religious disturbances or occasion any other disorder contrary to the public safety. In a word, it has a right, and is even obliged in this respect, to follow the rules which prudence dictates." (Vattel's Law of Nations, book 1, Chapter 19, secs. 230, 231.) Mr. Ortolan said: The Government of each State has always the right to compel foreigners who are found within its territory to go away, by having them taken to the frontier, not making a part of the nation, his individual reception into the territory is a matter of pure permission and simple tolerance and creates no obligation. The exercise of this right may be subject,

doubtless, to certain forms prescribed by the domestic laws of each country; but the right exists, none the less, universally recognized and put in force. In France, no special form is now prescribed in this matter; the exercise of this right of expulsion is wholly left to the executive power. (Ortolan, Diplomatie de la Mer, book 2, chapter 14, edition, p. 297.) Mr. Phillimore said: It is a received maxim of international law that the government of the State may prohibit the entrance of strangers into the country and may, therefore, regulate the conditions under which they shall be allowed to remain in it or may require or compel their deportation from it. (1 Phillimore's International Law, 3d edition, chapter 10, sec. 220.) Mr. Taylor said: Every independent State possesses the right to grant or refuse hospitality. Undoubtedly such a State possesses the power to close the door to all foreigners who, for social, political or economical reasons, it deems expedient to exclude; and for like reasons it may subject a resident foreigner or a group of them to expulsion, subject, of course, to such retaliatory measures as an abuse of the excluding or expelling power may provoke. (Tayloy, International Public Law, p. 231.) Mr. Oppenheim said: Just as a State is competent to refuse admission to foreigners, so it is in conformity with its territorial supremacy competent to expel at any moment a foreigner who has been admitted into its territory. And it matter not whether the respective individual is only on a temporary visit or has settled down professional or business purposes on that territory, having taken his domicile thereon. It has also been held that a State may expel a foreigner who has been residing within its territory for some length of time and has established a business there, and that his only remedy is to have his home State, by virtue of the right of protection of a State over its citizens abroad, to make diplomatic representations to the expelling State and ask for the reasons for such expulsion; but the right being inherent in the sovereignty or State, it can expel or deport even domiciled foreigners without so much as giving the reasons therefor. The expulsion of aliens from a State may be an unfriendly act to the State of the individual expelled, but that does not constitute the expulsion an illegal act, the law nations permitting such expulsions. (Oppenheim, International Law, sec. 323.) Mr. Marthens said: The Government of each State has always a right to compel foreigners who live within its territory to go away, having them conveyed to the frontier. This right has its cause in the fact that as a stranger does not form a part of a nation, his individual admission into the country is merely discretional, a mere act of tolerance, in no way obligatory. The practice of this right might be subject to certain forms prescribed by the international laws of each

country, but the right is always universally acknowledged and put into practice. (Marten's Droit des Gens, book 3, p. 91.) This implied or inherent right in the Government to prevent aliens from entering its territory or to deport or expel them after entrance, has not only been recognized by the courts and eminent writers of international law, but has also been recognized many times by the executive and legislative branches of the Government. Acts of the Congress of the United States, of the Parliament of Great Britain, as well as the British colonial parliaments, and royal decrees might be cited in support of this doctrine. One of the very early Acts of Congress of the United States (A. D. 1798) authorized the President of the United States to order all such aliens as he should judge to be dangerous to the peace and safety of the country, or that he should have reasonable grounds to suspect of being concerned in any treasonable machinations against the Government, to deport out of the territory of the United States within such time as he should express in his order. And it was further provided that if any such aliens, so sent out, should return without the permission of the President, they should be imprisoned so long as, in the opinion of the President, the public safety might require. Mr. Frelinghuysen, as Secretary of State of the United States (1882), said: This Government (United States) can not contest the right of foreign governments to exclude, on policy or other grounds, American citizens from their shores. Mr. Gresham, Secretary of State of the United States, in speaking of the right of Hayti to expel from its borders American citizens from their shores. This government does not propose to controvert the principle of international law which authorizes every independent State to expel objectionable foreigners or class of foreigners from its territory. The right of expulsion or exclusion of foreigners is one which the United States, as well as many other countries, has, upon occasions, exercised when deemed necessary in the interest of the Government or its citizens. . . . Every State is authorized, for reasons of public order, to expel foreigners who are temporarily residing in its territory, but when a Government expels foreigners without cause and in an injurious manner, the State of which the foreigner is a citizen has a right to prefer a claim for this violation of international law and to demand satisfaction, if there is occasion for it. Many other cases might be cited showing the arbitrary manner in which aliens have, from time to time, been deported. Expulsion is a police measure, having for its object the purging of the State of obnoxious foreigners. It is a preventive, not a penal process, and it can not be substituted for criminal prosecution and punishment by judicial procedure.

The right of deportation or expulsion is generally exercised by the executive head of the Government, sometimes with and sometimes without express legislation. Sometimes it is delegated in particular instances to the heads of some departments of the Government. (Act No. 265, U. S. Philippine Commission.) In Canada the right was given by statute to the attorney-general of Canada. (Dominion Act, 60th and 61st Victoria, chap. 11, sec. 6, as amended by 1st Edward 7th, Chap. 13.) It having been established that every government has the implied or inherent right to deport or expel from its territory objectionable aliens, whenever it is deemed necessary for the public good, we deem it pertinent to inquire: II IN WHAT DEPARTMENT OR DEPARTMENTS OF THE INDEPENDENT DEPARTMENTS OF A GOVERNMENT DOES THIS INHERENT POWER EXISTS? The rule of law permitting nations to deport or expel objectionable aliens, while international in its character is yet, nevertheless, in its application, executed by the ]particular nation desiring to rid itself of such aliens and must, therefore, be carried into operation by that departments of the government charged with the execution of the nation's laws. Its enforcement belongs peculiarly to the political department of the government. The right is inherent in the government and, as Mr. Justice Field said, "can not be granted away or restrained on behalf of anyone." It being inherent in the political department of the government, it need not be defined by express legislation, although in some States the legislative department of the government has prescribed the condition and the method under which and by which it shall be carried into operation. The mere absence of legislation regulating this inherent right to deport or expel aliens is not sufficient to prevent the chief executive head of the government, acting in his own sphere and in accordance with his official duty, to deport or expel objectionable aliens, when he deems such] action necessary for the peace and domestic tranquility of the nation. One of the principal duties of the chief executive of a nation is to preserve peace and order within the territory. To do this he is possessed of certain powers. It is believed and asserted to be sound doctrine of political law that if in a particular case he finds that there are aliens within its territory whose continued presence is injurious to the public interest, he may, even in the absence of express law, deport them. The legislative department of the government is not always in session. It may require days and even months for that department to assemble. Sudden and unexpected conditions may arise, growing out of the presence of obnoxious and untrustworthy foreigners, which demand immediate action. Their continued presence in the country may jeopardize even the very life of the government. To hold that, in view of the inherent power of the government, the chief executive authority was without power to expel such foreigners, would be to hold that at times, at least, the very existence and life of the government might be subjected to the will of designing and obnoxious foreigners, who were entirely out of sympathy with the existing government, and whose continued presence in the territory might be for the purpose of destroying such government.

Suppose for example, that some of the inhabitants of the thickly populated countries situated near the Philippine Archipelago, should suddenly decide to enter the Philippine Islands and should, without warning appear in one of the remote harbors and at once land, for the purpose of stirring up the inhabitants and inciting dissensions against the present Government. And suppose, for example, that the Legislature was not in session; could it be denied that the GovernorGeneral, under his general political powers to protect the very existence of the Government, has the power to take such steps as he may deem wise and necessary for the purpose of ridding the country of such obnoxious and dangerous foreigners? To admit such a doctrine would be to admit that every government was without the power to protect its own life, and at times might be subjected to the control of people who were out of sympathy with the spirit of the Government and who owe no allegiance whatever to it, and are under no obligation to assist in its perpetuity. It has never been denied, in a government of separate and independent departments, executive, legislative, and judicial, that the legislature may prescribe the methods or conditions for the exercise of his power, but the mere absence of such rules neither proves that the power does not exist nor that the executive head of the government may not adopt himself such methods as he may deem advisable for the public good and the public safety. He can only be controlled in the conditions and methods as to when and have the powers shall be exercised. The right itself can not be destroyed or bartered away. When the power is once created and no rules are adopted for its enforcement, the person or authority who has to exercise such power has the right to adopt such sane methods for carrying the power into operation as prudence, good judgment and the exigencies of the case may demand; and whatever rules and regulations may be adopted by the person or department possessing this power for carrying into operation this inherent power of the government, whether they are prescribed or not, will constitute due process of law. (See speech delivered by John Marshall in the House of Representatives of the United States, Annals of the Sixth Congress, 595; United States vs. Robins, Fed. Cas. No. 16,175, 27 Fed. Cas., 825; Moyer vs. Peabody, 212 U. S., 78; Murray vs. Hoboken Land and Improvement Co., 18 How., 272; U. s., vs. Ju Toy, 198 U. S., 253, 263.) We have said that the power to deport or expel foreigners pertains to the political department of the government. Even in those jurisdictions where the conditions under which persons may be deported are left to the courts to decide, even then the actual deportations must be carried into operation by the executive department of the government. The courts have no machinery for carrying into operation their orders except through the executive department. In the present case the fact is charged and admitted that the defendant was deported by W. Cameron Forbes as Governor-General of the Philippine Islands, acting for the Government. Mr. Forbes is "the chief executive authority in all civil affairs of the Government of the Philippine Islands" as such it is his duty to enforce the laws. It is out opinion and we so hold that as such "executive authority" he had full power, being responsible to his superiors only, to deport the defendant by whatever methods his conscience and good judgment might dictate. But even though we are wrong in our conclusions that he is the possessor of the inherent right to deport aliens, and it is true that the power belongs to the legislative department to prescribe rules and regulations for such deportation, yet, in the present case, the legislative department expressly recognized his authority and approved his acts by a resolution adopted by it on the 19th of April, 1910. This power of the legislature to expressly ratify acts alleged to be illegal by the executive

department, has been expressly recognized by the Supreme court of the United States in the case of United States vs. Heinszen & Co., (206 U. S., 370); O'Reilly de Camara vs. Brooke, MajorGeneral (142 Fed. Rep., 859). An act done by an agent of the Government, though in excess of his authority, being ratified and adopted by the Government, is held to be equivalent to previous authority. (142 Federal Reporter, supra; Phillips vs. Eyre, Law Reports, 6 Queen's Bench Cases, 1; Secretary of State vs. Kamachee Baye Sahaba, 13 Moore's Privy Council, 22; O'Reilly de Camara vs. Brooke, Major-General, 209 U. S., 54.) It is also admitted that the act of the Governor-General in deporting the defendant was in compliance with a request made by the official representative of the Imperial Government of China. It would seem, therefore, that said request, in the absence of any other power, would be sufficient justification of his act. The mere fact that a citizen or subject is out of the territory of his country does not relieve him from that allegiance which he owes to his government, and his government may, under certain conditions, properly and legally request his return. This power is expressly recognized by the Congress of the United States. (See Act of Congress of January 30, 1799, 1 Statutes at large, 613; sec. 5533, Revised Statutes of United States; sec. 5, United States Penal Code, adopted March 4, 1909.) It was strenuously argued at the hearings of this cause that the defendant was deported without due process of law, in fact, that was the burden of the argument of attorney for the defendant. Due process of law, in any particular case, means such an exercise of the powers of the government as the settled maxims of law permit and sanction and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in questions belongs. (U. S. vs. Ling Su Fan, 10 Phil. Rep., 104, 111; Moyer vs. Peabody, 212 U. S., 78; Murray vs. Hoboken Land and Improvement Co., 18 How., 272; U. S. vs. Ju Toy, 198 U. S., 253, 263.) An examination of the methods by which the defendant was deported, as stated by the attorney for the defendant, as compared with the numerous cases of deportation by the various governments of the world, shows that the method adopted in the present case was in accordance with the methods adopted by governments generally and the method sanctioned by international law. (See Moore's International Law Digest, vol. 4.) It has been repeatedly decided when a government is dealing with the political rights of aliens that it is not governed by that "due process of law" which governs in dealing with the civil rights of aliens. For instance, the courts of the United States have decided that in the deportation of an alien he is not entitled to right of trial by jury, the right of trial by jury being one of the steps in the "due process of law" in dealing with civil rights. (Fong Yue Ting vs. U. S., 149 U. S. 698; U. S. vs. Wong Dep Ken, 57 Fed. Rep., 206; U. S. vs. Wong Sing, 51 Fed. Rep., 79; In re Ng Loy Hoe, 53 Fed. Rep., 914.) In the case of Moyer vs. Peabody, Governor of Colorado (212 U. S. , 78), Mr. Justice Holmes, speaking for the court upon the question of what is "due process of law," said:

But it is familiar that what is due process of law depends on circumstances. It varies with the subject-matter and the necessities of the situation. Thus, summary proceedings suffice for taxes and executive decisions for exclusion from the country. Neither will the fact that an alien residing in the territory holds a certificate of admission justify his right to remain within such territory as against an act of the executive department of the Government which attempts to deport him. (Chae Chan Ping vs. U. S. 581, 36 Fed. Rep., 431.) The certificate is a mere license and may be revoked at any time. An alien's right to remain in the territory of a foreign government is purely a political one and may be terminated at the will of such government. No cases have been found, and it is confidently asserted that there are none, which establish a contrary doctrine. Having established, as we believe: (a) That a government has the inherent right to deport aliens whenever the government believes it necessary for the public good; and (b) That the power belongs to the political department of the government and in the Philippine Islands to the Governor-General, who is "the chief executive authority in all civil affairs" in the Government of the Philippine Islands: We deem it pertinent to inquire: III. WHETHER OR NOT THE COURTS CAN TAKE JURISDICTION IN ANY CASE RELATING TO THE EXERCISE OF THIS INHERENT POWER IN THE DEPORTATION OF ALIENS, FOR THE PURPOSE OF CONTROLLING THIS POWER VESTED IN THE POLITICAL DEPARTMENT OF THE GOVERNMENT. The question whether or not the courts will ever intervene or take jurisdiction in any case against the chief executive head of the government is one which has been discussed by many eminent courts and learned authors. They have been unable to agree. They have not been able to agree even as to what is the weight of authority, but they all agree, when the intervention of the courts is prayed for, for the purpose of controlling or attempting to control the chief executive head of the government in any matter pertaining to either his political or discretionary duties, that the courts will never take jurisdiction of such case. The jurisdiction is denied by the courts themselves on the broad ground that the executive department of the government is separate and independent department, with its duties and obligations, the responsibility for the compliance with which is wholly upon that department. In the exercise of those duties the chief executive is alone accountable to his country in his political character and to his own conscience. For the judiciary to interfere for the purpose of questioning the manner of exercising the legal, political, inherent duties of the chief executive head of the government would, in effect, destroy the independence of the departments of the government and would make all the departments subject to the judicial. Such a conclusion or condition was never contemplated by the organizers of the government. Each department should be sovereign and supreme in the performance of his duties

within its own sphere, and should be left without interference in the full and free exercise of all such powers, rights, and duties which rightfully, under the genius of the government belong to it. Each department should be left to interpret and apply, without interference, the rules and regulations governing it in the performance of what may be termed its political duties. Then for one department to assume to interpret or to apply or to attempt to indicate how such political duties shall be performed would be an unwarranted, gross, and palpable violation of the duties shall be performed would be an unwarranted, gross, and palpable violation of the duties which were intended by the creation of the separate and distinct departments of the government. It is no answer to this conclusion to say that the chief executive authority may violate his duties and the constitutional guaranties of the people, or that injustice may be done, or that great and irreparable damage may be occasioned without a remedy. The judicial is not the only department of the government which can do justice or perpetually conserve the rights of the people. The executive department of the government is daily applying laws and deciding questions which have to do with the most vital interest of the people. (Marbury vs. Madison, 1 Cranch, U. S., 152; State of Miss. vs. Johnson, 4 Wall., 475, 497; Hawkins vs. The Governor, 1 Ark., 570 (33 Am. Dec., 346); Sutherland vs. The Governor, 29 Mich., 320; People vs. Bissell, 19 Ill., 229 (68 Am. Dec., 591); State vs. Warmoth, 22 La. An., 1.) In the case of State vs. Warmoth (22 La. An., 10 Mr. Justice Taliaferro said (pp. 3,4): He [the governor] must be presumed to have this discretion, and the right of deciding what acts his duties require him to perform; otherwise his functions would be trammeled, and the executive branch of the government made subservient, in an important feature, to the judiciary. When the official acts to be performed by the executive branch of the government are divided into ministerial and political, and courts assume the right to enforce the performance of the former, it opens a wide margin for the exercise of judicial power. The judge may say what acts are ministerial an what political. Circumstances may arise and conditions may exist which would require the Governor of a State, in the proper exercise of his duty, and with regard to the interests of the State, not to perform a ministerial act. Is the judge to determine his duty in such case, and compel him to perform it? The reasons of the executive for the nonperformance of an act, the judge may never know, or, if brought to his knowledge, he may review and overrule them, and, in doing, assume political functions. He would determine, in such a case, the policy of doing the act. The legislator himself, who prescribed the act might hold the executive harmless while the judge condemned him. We believe that there are certain inherent powers vested in the chief executive authority of the State which are universally denominated political, which are not defined either by the constitution or by the laws. We believe that those inherent powers would continue to exist for the preservation of the life and integrity of the State and the peace and quietude of its people, even though the constitution were destroyed and every letter of the statutes were repealed. This must necessarily be true, or, otherwise, the hands of the chief executive authority of the government might, at times, be paralyzed in his efforts to maintain the existence of the government. The

United States Government never intended to create in the Philippine Islands a government without giving it adequate power to preserve itself and to protect the highest interests of the people of the Archipelago. These inherent, inalienable, and uncontrollable powers which must necessarily exists in the absence of express law in the chief executive authority of a nation have been clearly demonstrated by the action of the President of the United States, notably in putting down what is known as the "Whisky Rebellion" in the State of Pennsylvania, in the case of the protection of a judge of the United States (In re Neagle, 135 U. S., 1, 64), as well as in the case of the uprising of labor organizations in the city of Chicago under the direction and control of Mr. Debbs (In re Debbs, 158 U. S., 568). These powers and the right to exercise them according to his own good judgment and the conscience and his acts in pursuance of them are purely political and are not subject to control by any other department of the government. It is believed that even the Legislature can not deprive him of the right to exercise them. Upon the question of the right of the courts to interfere with the executive, this court has already pronounced, in the case of In re Patterson (1 Phil. Rep., 93) that: Superior to the law which protects personal liberty and the agreements which exist between nations for their own interests and the benefit of their respective subjects is the supreme and fundamental right of each state to self-preservation and the integrity of its dominion and its sovereignty. Therefore it is not strange that this right should be exercised in a sovereign manner by the executive power to which is entrusted, in the very nature of things, the preservation of so essential a right, without interference on the part of the judicial power. This court has also announced the doctrine, in the case of Barcelon vs. Baker et al (5 Phil. Rep., 87) that: Under the form of the government established in the Philippine Islands one department of the Government has no power or authority to interfere in the acts of another, which acts are performed within the discretion of the other department. In the case of Martin vs. Mott it was decided by the Supreme Court of the United States, whenever the performance of a political duty developed upon the chief executive authority of a nation and when he had decided as to the method of performing that duty, that no court could question his decision. We are of the opinion and so hold, whenever the authority to decide a political question devolves upon any separate and distinct department of the Government, which authority impose upon that department the right to decide whether the exigencies for its exercise have arisen, and when that department had decided, that decision is conclusive upon all other persons or departments. This doctrine has been further recognized by this court in the case of Merchant vs. Del Rosario (4 Phil. Rep., 316) as well as in the case of Debrunner vs. Jaramillo (12 Phil. Rep., 316).

Under the system of government established in the Philippine Islands the Governor-General is "the chief executive authority," one of the coordinate branches of the Government, each of which, within the sphere of its governmental powers, is independent of the others. Within these limits the legislative branch can not control the judicial nor the judicial the legislative branch, nor either the executive department. In the exercise of his political duties the Governor-General is, by the laws in force in the Philippine Islands, invested with certain important governmental and political powers and duties belonging to the executive branch of the Government, the due performance of which is entrusted to his official honesty, judgment, and discretion. So far as these governmental or political or discretionary powers and duties which adhere and belong to the Chief Executive, as such, are concerned, it is universally agreed that the courts possess no power to supervise or control him in the manner or mode of their discharge or exercise. (Hawkins vs. The Governor, supra; People vs. The Governor, supra; Marbury vs. Madison, supra; Meecham on Public Officers, sec. 954; In re Patterson, supra; Barcelon vs. Baker, supra.) It may be argued, however, that the present action is one to recover damages against the Governor and the others mentioned in the cause, for the illegal acts performed by them, and not an action for the purpose of in any way controlling or restraining or interfering with their political or discretionary duties. No one can be held legally responsible in damages or otherwise for doing in a legal manner what he had authority, under the law, to do. Therefore, if the Governor-General had authority, under the law, to deport or expel the defendants, and the circumstances justifying the deportation and the method of carrying it out are left to him, then he can not be held liable for damages for the exercise of this power. Moreover, if the courts are without authority to interfere in any manner, for the purpose of controlling or interfering with the exercise of the political powers vested in the chief executive authority of the Government, then it must follow that the courts can not intervene for the purpose of declaring that he is liable in damages for the exercise of this authority. Happily we are not without authority upon this question. This precise question has come before the English courts on several different occasions. In the cases of The Lord-Lieutenant of Ireland (Governor of Ireland), Tandy vs. Earl of Westmoreland (27 State Trials, 1246), and Luby vs. Lord Wodehouse (17 Iredell, Common Law Reports, 618) the courts held that the acts complained of were political acts dine by the lordLieutenant in his official capacity and were assumed to be within the limits of the authority delegated to him by the Crown. the courts if England held that, under the circumstances, no action would lie against the lord-lieutenant, in Ireland or elsewhere. In the case of Chun Teeong Toy vs. Musgrave (Law Reports, Appeal Cases 1891, p. 272) the plaintiff, a Chinese subject, brought an action for damages against the defendant as collector of customs of the State of Victoria in Australia, basing his action upon the refusal of the Victorian government to permit him to enter that State. Upon a full consideration the Privy Council said: Their Lordships can not assent to the proposition that an alien refused permission to enter British territory can, in an action against the British Crown, compel the decision of such matters as these, involving delicate and difficult constitutional questions affecting the respective rights of the Crown and Parliament and the relation of this country to her selfgoverning colonies. When once it is admitted that there is no absolute and unqualified

right of action on the behalf of an alien refused permission to enter British territory, their Lordships are of opinion that it would be impossible, upon the facts which the demurrer admits, for an alien to maintain an action. If it be true that the Government of the Philippine Islands is a government invested with "all the military,. civil, and judicial powers necessary to govern the Philippine Islands until otherwise provided by Congress" and that the Governor-General is invested with certain important political duties and powers, in the exercise of which he may use his own discretion, and is accountable only to his superiors in his political character and to his own conscience, and without authority to interfere in the control of such powers, for any purpose, then it must follow that the courts can not take jurisdiction in any case against him which has for its purpose the declaration that such acts are illegal and that he is, in consequence, liable for damages. To allow such an action would, in the lost effective way possible, subject the executive and political departments of the Government to the absolute control of the judiciary. Of course, it will be observed that we are here treating only with the political and purely executive duties in dealing with the political rights of aliens. The conclusions herein reached should not be extended to cases where vested rights are involved. That question must be left for future consideration. From all the foregoing facts and authorities, we reach the following conclusions: First. That the Government of the United States in the Philippine Islands is a government possessed with "all the military, civil, and judicial powers necessary to govern the Philippine Islands" and as such has the power and duty, through its political department, to deport aliens whose presence in the territory is found to be injurious to the public good and domestic tranquility of the people. Second. That the Governor-General, acting in his political and executive capacity, is invested with plenary power to deport obnoxious aliens, whose continued presence in the territory is found by him to be injurious presence to the public interest, and in the method of deporting or expelling them, he may use such method as his official judgment and good conscience may dictate. Third. That this power to deport or expel obnoxious aliens being invested in the political department of the Government, the judicial department will not, in the absence of express legislative authority, intervene for the purpose of controlling such power, nor the purpose of inquiring whether or not he is liable in damages for the exercise thereof. Therefore the lower court was without jurisdiction to consider the particular questions presented in the cause, and it is hereby ordered and decreed that the writ of prohibition shall be issued, directed to the defendant, the Hon. A. S. Crossfield, perpetually prohibiting him from proceeding in the cause in which Chuoco Tiaco (alias Choa Tea) is plaintiff and W. Cameron Forbes, Charles R. Trowbridge, and J.E. Harding are defendants, and to dismiss said action, as well as to enter an order dissolving the injunction granted by him in said cause against the said defendants.

It is further ordered that a decree be entered overruling the demurrer presented in this cause, and ordering that said action be dismissed, as well as a decree making perpetual the injunction heretofore granted by Mr. Justice Trent. It is so ordered, without any finding as to costs. Arellano, C.J., and Torres, J., concur.

Separate Opinions MORELAND, J., concurring: The nature of this action has been fully set forth, by way of quoting the entire proceedings, in the opinion of Mr. Justice Johnson. It is unnecessary again to present the facts. I differ, however, from that portion of the relation of the facts in that opinion, and the conclusion drawn therefrom, which touches the form of action commenced by Chuoco Tiaco against the Governor-General, and in which it is asserted that "thus clearly it appears that the action was against the defendants in their official capacity." In my judgment, the contrary, namely, that the action was against the Governor-General personally for acts which he sought to perform in his official capacity, clearly appears. The words "successors in office," as used in the complaint, refer only to the remedy by injunction and not to the damages prayed for by reason of the expulsion. The action no less certainly is directed against the other defendants personally. When the case was decided in this court upon the merits, Mr. Justice Trent and myself signed the following opinion: I concur in so much of the opinion o f Mr. Justice Johnson, as holds that the action in the Court of First Instance from which this controversy arises can not be maintained against the Governor-General. With the reasons given and the arguments advanced in that opinion for the support of that conclusion I disagree. I can not assent to the theory upon which the opinion is framed nor to the reasons and arguments advanced in support thereof. I understand that the action in the court below, as appears from the records of that court and the concession of all parties interested, is one against the Governor-General personally for acts which he assumed to perform in his official capacity. That the Governor-General acted in the honest belief that he had the power to perform the acts complained of is nowhere questioned. This being so, whether or not he actually had such powers is, as I view this case, immaterial. I base my concurrence in the result solely upon the theory that the Governor-General, in his official capacity, being one of the coordinate branches of the Government (U. S. vs. Bull, 8 Off. Gaz., 271)1, is entitled to the same protection against personal actions for damages by those who feel themselves aggrieved by acts which he performs in carrying out what he honestly deems to be the duties of his office as are the other coordinate branches of the Government. It is undoubted that neither the Legislature, nor a member thereof is liable in damages for any act which it performs, believing that it had the power so to act, even though it ultimately appears that

such act is entirely outside of its powers and jurisdiction and is wholly and utterly void. It is equally undoubted, in my judgment, that neither the courts, constituting another coordinate branch of the Government, nor members thereof, are, under similar circumstances, liable in damages. (Bradley vs. Fisher, 80 U. S. 335; Spalding vs. Villas, 161 U. S., 481, 493, 494.) If the want of jurisdiction was known to the court at the time it acted, another question might be presented. There comes to my mind no good reason why the same principles of nonliability should not be applied to the Chief Executive of the Government. Indeed the reasons and arguments of the courts and text writers advanced to support the principle of nonliability of legislatures and courts apply with even greater force to the Executive. The Governor-General, in determining whether or not he has the power or jurisdiction to perform a certain act, should be protected against personal actions against him for damages as completely and effectively as he unquestionably is when, jurisdiction being conceded, he honestly acts in excess thereof. There is no dissimilarity in the quality of the mental process employed or the judgment brought to bear and exercised in arriving at a conclusion in the two cases. This theory does not in any way weaken the power of this court, in a proper action, to determine the legality of all official acts once performed and the legal consequences flowing therefrom. The necessity for such determination does not, however, arise, in this case. To that opinion we still adhere. A thorough reexamination of the questions involved and of the principles of law which, we believe, must be applied in their solution adds to our conviction that the conclusions therein reached are sound and should guide the court in the disposition of the case before it. The principles enunciated in that opinion were not, however, presented or discussed by the attorneys, or either of them, in the extended and elaborate arguments which they made, both orally and in writing, to this court. A motion for a rehearing having been made and the objections and arguments of counsel having been particularly directed against the conclusions presented in our former opinion, we deem it advisable to present here, with some elaborations and detail, the reasons which impelled us to the conclusions reached therein. In this opinion we discuss the subject, largely speaking, in two aspects. First, the nature and quality of the functions exercised by the Governor-General in arriving at the conclusion that he had the right to expel Chuoco Tiaco. Our conclusion upon this branch of the subject is that the act was in the nature of a judicial act, the functions exercised were judicial in their quality, and that he should have the same protection against civil liability in exercising this function that would be accorded to a court under similar circumstances. Second, the fundamental nature and attributes of the office of Governor-General, and whether or not the public policy requires that there be applied to him and by his acts the same principles which govern the liability of the members of the Legislature and of the judiciary. Our conclusion upon this branch of the case is that the Government here is one of three departments

executive, legislative, and judicial that the office of Governor-General is one of the coordinate branches of the Government, and that the same public policy which relieves a member of the Legislature or a member of the judiciary from personal liability for their official acts also relieves the Governor-General in like cases. It has been settled by previous decisions of this court that the Government established in the Philippine Islands is one of three departments legislative, executive, and judicial. In the case of the U. S. vs. Bull2 (8 Off. Gaz., 271, 276), it is said: Within the limits of its authority the Government of the Philippines is a complete governmental organism with executive, legislative, and judicial departments exercising the functions commonly assigned to such departments. The separation of powers is as complete as in most governments. In neither Federal nor State governments is this separation such as is implied in the abstract statement of the doctrine. For instance, in the Federal Government the Senate exercises executive powers, and the President to some extent controls legislation through the veto power. In a State the governor is not a member of the legislative body, but the veto power enable him to exercise much control over legislation. The Governor-General, the head of the executive department in the Philippine Government, is a member of the Philippine Commission, but as executive he has no veto power. The President and Congress framed the Government on the models with which Americans are familiar, and which has proved best adapted for the advancement of the public interest and the protection of individual rights and privileges. (Lope Severino vs. The Governor-General and Provincial Board of Occidental Negros, 8 Off. Gaz., 1171.)3 The instructions of the President of the United States to the Philippine Commission, dated April 7, 1900, contain this statement: Until the complete transfer of control (from the military to the civil authorities) the Military Governor will remain the chief executive head of the Government of the Islands, and will exercise the executive authority now possessed by him and not herein expressly assigned to the Commission, subject, however, to the rules and orders enacted by the Commission in the exercise of the legislative powers conferred upon them. Said instructions also include the following: Beginning with the 1st day of September, 1990, the authority to exercise, subject to my approval, through the Secretary of War, that part of the power of government in the Philippine Islands which is of a legislative nature is to be transferred from the Military Governor of the Islands to this Commission, to be thereafter exercised by them in the place and stead of the Military Governor, under such rules and regulations as you shall prescribe, until the establishment of the civil central government for the Islands contemplated in the last foregoing paragraph, or until Congress shall otherwise provide. Exercise of this legislative authority will include the making of rules and orders, having the effect of law, for the raising of revenue by taxes, customs duties, and imposts; the appropriation and expenditure of public funds of the Islands; the establishment of an

educational system throughout the Islands; the establishment of a system to secure an efficient civil service; the organization and establishment of courts; the organization and establishment of municipal and departmental governments, and all other matter of a civil nature for which the Military Governor is now competent to provide by rules or orders of a legislative character. The powers conferred upon the Military Governor are contained in the following order of the President to General Merritt, dated May 19, 1998: Though the powers of military occupant are absolute and supreme, and immediately operate upon the political condition of the inhabitants, the municipal laws of the conquered territory, such as effect private rights of person and property, and provide for the punishment of crime, are considered as continuing in force, so force, so far as they are compatible with the new order of things, until they are suspended or superseded by the occupying belligerent; and in practice they are not usually abrogated, but are allowed to remain in force, and to be administered by the ordinary tribunals, substantially as they were before the occupation. This enlightened practice is, so far as possible, to be adhered to on the present occasion. The Spooner amendment to the Army appropriation bill, passed March 2, 1901, provided that All military, civil, and judicial powers necessary to govern the Philippine Islands . . . shall until otherwise provided by Congress be vested in such person and the persons, and shall be exercised in such manner, as the president of the United States shall direct, for the establishment of civil government, and for maintaining and protecting the inhabitants of said Islands in the in the free enjoyment of their liberty, property, and religion. On the 21st day of June, 1901, the President, in an order appointing a Civil Governor, said: On and after the 4th day if July, 1901, until it shall be otherwise ordered, the President of the Philippine Commission will exercise the executive authority in all civil affairs in the government of the Philippine Islands heretofore exercised in such affairs by the Military Governor of the Philippines, and to that end the Hon. William H. Taft, President of the said Commission, is hereby appointed Civil Governor of the Philippine Islands. Such executive authority will be exercised under, and in conformity to, the instructions to the Philippine Commissioners, dated April 7, 1900, and subject to the approval and control of the Secretary of War of the United States. The municipal and provincial civil governments, which have been, or shall hereafter be, established in said Islands, and all persons performing duties appertaining to the offices of civil government in said Islands, will, in respect of such duties, report to the said Civil Governor. The power to appoint civil officers, heretofore vested in the Philippine Commission, or in the Military Governor, will be exercised by the Civil Governor with the advice and consent of the Commission.

The Military Governor of the Philippines is hereby relieved from the performance, on and after the said 4th day of July, of the civil duties hereinbefore described, but his authority will continue to be exercised as heretofore in those districts in which insurrection against the authority of the United States continues to exist, or in which public order is not sufficiently restored to enable provincial civil governments to be established under the instructions to the Commission dated April 7, 1900. On the 1st day of July, 1902, Congress passed an Act containing the following: That the action of the President of the United States in creating the Philippine Commission and authorizing said Commission to exercise the powers of government to the extent and in manner and form and subject to the regulations and control set forth, in the instructions of the President to the Philippine Commission, dated April seventh, nineteen hundred, and in creating the offices of Governor-General and Vice-GovernorGeneral of the Philippine Islands, and authorizing said Governor-General and ViceGovernor-General to exercise the powers of government to the extent and in manner and form set forth in the Executive Order dated June twenty-first, nineteen hundred and one, . . . is hereby approved, ratified, and confirmed, and until otherwise provided by law the said Islands shall continue to be governed as thereby and herein provided. From these citations it will be seen that the Governor-General is the executive head of the Government; that he has full, plenary, and perfect powers to execute the laws. Obviously, therefore, the primal necessity laid upon him, when in a given case, he believes himself called upon to act, is to determine whether there is a law under which he may act whether, in other words, he is authorized to act in that particular case. One occupying that high position owes a heavy obligation to the State. A careful and conscientious man, intensely anxious to meet the full requirements of this obligation, will inevitably dedicate his first consideration to the determination of what that obligation is. From the viewpoint of the governors of the American States, this is not, generally speaking, a difficult question. There conditions are settled. Society is old. Questions wholly new rarely arise. The constitutions confer the powers generally. The statutes specify them. The source power is the constitution. The guide is the statutes. Both are written. They constitute the governor's text-book of power and procedure specific, definite, certain. In the Philippine Islands the situation is different. Here, while the sources of the Governor-General's power are known, the extent and character of the power drawn from those sources are not so clear. Many times they are extremely difficult of ascertainment. The Government here is a new one .Its establishment is a step in ways heretofore untrodden by the American Republic. Its history furnished no example, its law no precedent. Her statemanships had, up to the moment, framed no model from which a colony government might be fashioned; the philosophy of her institutions presents no theories along which action may unhesitatingly proceed. There is no experience to guide the feet; no settled principles of colonial government and administration to which men may turn to justify their action or dissipate their doubts. Therefore, when, seeing, as he believed, certain Chinese aliens outraging the public conscience and seriously threatening public security, the Governor-General, believing that the only procedure adequate to protect the public interests was the expulsion of the offenders, began an investigation to determine whether or not he had the power of expulsion, he was confronted with a question of very serious intricacy and doubt. It was of the very greatest importance also. It is

undoubted that he was thoroughly convinced that he was required, by the obligation of his office, to act if the law authorized it. He knew the strength and the justice of the proposition that a public official may not sit supinely by and see outraged the very things that he is bound by his oath to protect without exhausting every atom of his power and every resource of his office in an attempt to meet the situation as it ought to be met. His primal duty, under such circumstances, would be to determine what were his powers. The situation would imperatively demand that he ascertain what he could do. This involves, as already said, a determination upon which even a court, learned in the law and experienced in its constructions, would enter with hesitation and misgivings. The question to be resolved is so many sided, its relations so intricate and numerous, the result of its determination so far-reaching, politically as well as legally, as to require the most careful consideration, the must exhaustive forethought. It involves not only the discussion and resolution of judicial as well as administrative questions of the most highly important kind, but also whether this Government has any power of expulsion whatever. He has, then, as his initiatory resolution, to determine whether the Government of the Philippine Islands has the power of expulsion at all. As a condition precedent to the decision of that question he must adjudge (a) whether the Government here is in any sense a sovereign government; for the power to expel a domiciled foreigner is distinctively an attribute of sovereignty, to be exercised, under the uniform practice of the Government of the United States, only in exceptional cases and then under recognized methods of procedure. If he resolve that question in the negative, he must then decide (b) whether the Government of the United States has conferred upon the Government here those powers of sovereignty necessary to authorize such act. It is needless to say that the very gravest questions are involved in these determinations. I do not stop to enumerate them or to present the serious difficulties which must be met in making them. It suffices to say that, when he has fully resolved those questions, he is then only on the threshold of his inquiry. Inasmuch as it might appear to one investigating the subject for the first time that the power of expulsion might be an inherent attribute of the Executive, as in some countries it is alleged to be, he must determine, first the fundamental nature of his executive powers. He must decide whether, under the form of the government of which his office is the executive part, the power of expulsion belongs to the executive exclusively, or solely to the legislative, or whether it belongs to both, in combination with the judicial. This requires that he distinguish his executive functions from those which are legislative, upon the one hand, and those which are judicial, upon the other a determination most difficult in many instances, not only by reason of the considerations above set forth, not only by reason that, while the broad distinction is clear, nevertheless, frequently, the nature of one verges so closely upon that of the other as to render the difference between them subtle, uncertain, and elusive. He must, second, judge whether that power, whatever it is and whatever its extent, came untrammeled to the Military Governor from the hands of the President, or whether he received it modified and restricted. This determination is necessary for the reason already pointed out that the Governor-General has only such executive power as had the Military Governor. This involves an interpretation of the order of the President above quoted a very real judicial construction of its legal signification.

He must decide, third, whether the acts or orders by which executive power was given to the Military Governor and those by which that power was transferred to him do or do not, by their terms, define that power itself, its character and extent, or specify with more or less certainty the acts which he may perform under it. This again brings into play functions which approach the judicial so closely as to render them practically indistinguishable. After all these investigations, interpretations, and constructions have been completed, there still remains to the Governor-General for solution one of the most difficult problems of all, that of determining whether or not, irrespective of the foregoing considerations, there exists in force and vigor, under the American regime, a law of Spanish origin with which he may adequately meet the situation that faces him. As we have already seen, the instructions of the President of the United States to General Merritt, dated May 19, 1898, provide that The municipal laws of the conquered territory, such as affect, private rights of person and property, and provide for the punishment of crime, are considered as continuing in force, so far as they are compatible with the new order of things, until they are suspended or supercede by the occupying belligerent; and in practice they are not usually abrogated, but are allowed to remain in force, . . . . We have also seen that the proclamation of General Merritt on the capitulation of the Spanish forces in Manila also provides that The municipal laws such as affect private rights of persons and property, regulate local institutions, and provide for the punishment of crime shall be considered as continuing in force, as compatible with the purposes of military government, and that they be administered through the ordinary tribunals substantially as before occupation, but by officials appointed by the government of occupation. It is evident that the character and contents of these two instruments necessitate that the Governor-General consider and decide when the laws and institutions of the United States are so incompatible with those Spain in the Philippine Islands as to render the latter inoperative. This involves the consideration of the broad question of when the laws, customs, and institutions of a conquering nation are so incompatible with those of the conquered as to render them inoperative and ineffective by the mere change of sovereignty. This is a theme upon which writers have differed and concerning which the courts have not been free from uncertainties and even contradictions. The field opened by this necessity is so wide, the subject-matter so uncertain and elusive, and the principles involved so dependent for their application upon the personal equation of the one dealing with the subject that it is extremely easy for two men, equally honest and able, to differ widely on a result. Much depends upon the atmosphere in which one is placed and the point of view from which the subject is seen. The Supreme court of the United States has just held unconstitutional and void the law relating to the falsification of an official document by a public official, a law of Spanish origin, which had generally been supposed, and had repeatedly been held by the Supreme Court of the Islands, to have survived the change of sovereignty. The great body of our laws is of Spanish origin and comes to us and is enforced by us upon the theory that it has survived. As a result, this

court is continually called upon to adjudicate the question whether a given Spanish law is still in existence. Parties are unceasingly asserting rights of property and of person based upon such laws. These assertions are as frequently denied. It is subject over which uncertainty continually holds sway. It was a question, however, which had to be met and solved by the Governor-General. It could not be avoided. It confronted him squarely and insistently, because a condition and not a theory was thrust in his face. It appears that, prior to the conquest and occupation of the Islands by the Americans, there was in force here a royal decree giving the Spanish Governor-General power, when certain conditions conjoined, to expel domiciled foreigners. That decree reads: OFFICE OF THE COLONIAL SECRETARY. No. 607. EXCELLENCY: In view of the proceedings relative to the consultation had by the Audiencia de Manila with the government, through the supreme court, the latter having rendered a report on the subject-matter thereof, which refers to deportations, the case was forwarded for report to the political division of this office, and His majesty the King (whom may God preserve), and in his name the Queen Regent, passing upon the report, has been pleased to decide that: 1. According to the laws 18, 19 and 20, title 8, book 7; 35, title 15, book 2, title 4, book 3; 61, title 3, book 3, the royal cedula of May 19, 1819, and the special royal order of April 20, 1881, Governor-General of the Philippine have power to determine the legal expediency of the deportations which they may deem necessary for the preservation of public order. 2. The record in any such cause commenced by the Governor-General must be transmitted to the supreme government of the nation, in the form and manner provided by the Laws of the Indies, in order that it may take cognizance of the reasons which he may have for ordering the deportation. 3. The kind and form of justification which should appear in the record is left to the reasonable discretion of the Governor-General. 4. The Governor-General may deport any person who, had he been prosecuted in the courts of justice under a criminal charge, would have been pardoned, as expressed in law 2, title 8, book 7, of the Recompilacion of the Laws of the Indies. 5. With respect to such persons as we tried and acquitted by the courts of justice, if the charges, the reason for the deportation, were the subject-matter of the prosecution, then, bearing in mind the sanctity of a matter which has become res adjudicata, deportation by the Governor-General is improper.

6. These deportations must be decreed by the Governor-General in person, and not by his tenientes and auxiliares (lieutenants and assistants), in accordance with law 19, title 8, book 7, of the Recompilation of the Indies. 7. The laws in force in the Philippines relative to deportations are those of the Indies before mentioned, so that the lack of a faithful and exact compliance with requisites prescribed therein for the exercise of such power constitutes the crime defined in articles 211 and 212 of the Penal Code in force in the Philippines. 8. The right to appeal to the audiencias, granted by royal order of May 25, 1847, from the action taken by the Governor-General, was abolished by the decree of November 28 of the same year, which provided in article 7 that orders issued by the Governor-General in matters pertaining to government or to the exercise of his discretional powers. can only be revoked by the Supreme Government. The foregoing by this royal order is communicated to you for your information and the consequent effects. May God preserve Your Excellency many years, Madrid, August 2, 1888. (Signed) Ruiz y Capdepon. To the Governor-General of the Philippine Islands: Comply with and observe the above royal order and issue to the provincial chiefs the necessary orders thereunto pertaining. (Signed) Weyler. The question was thus squarely up. Did that law survive the American occupation? An answer must be given by the Governor-General, if he believed his duty to the State required him to act if he had the power. Once more he must interpret, construe, and determine; and in doing so he must tread legal mazes as intricate and bewildering as ever were trodden by a judge at court. Having so far considered the processes which the mind of the Governor-General must pass through and the determinations which he must make in arriving at a conclusion as to whether he may or may not act in the case given, it is now necessary to inquire what is the nature of those processes and determinations. Evidently they involve the element of discretion of judgment as a result of investigations a conclusion as to the existence of a law, an authority, a power, which lies at the very doorway of his activities. His judgment operates in a field over which he has general and exclusive jurisdiction and embraces a subject concerning which he must judge alone. It includes also a determination as to the character, quality, and extent of the person against or in reference to whom that power is to operate. Every act of enforcement of whatever law, real or imaginary, must necessarily an inevitably be preceded by two determination. First, is there a law at all; and, second, if there is, what is meaning of it; what is its interpretation? These determinations must always be made. They were laid upon the Governor-General by the very nature of his functions an executor of law. It is evident, therefore, in view of these considerations, that such functions involve much that is judicial. The executive and judicial functions here merge and overlap each other to a conspicuous extent; and it becomes at once apparent that the functions exercised by the Governor-General in reaching a conclusion to act in given case, and especially in the case before us, were, in their nature, essentially judicial. If a

judge had done the things which the Governor-General did in arriving at this conclusion, his act and determination would unquestionably have been judicial. Are they any the less so, in their essential nature, because a Governor-General and not a judge was the ]actor? The methods pursued by the two, Governor-General and judge, are not all different. The subject-matter is precisely the same. The mental processes involved are identical. The discretion used is the same. The objects in view are wholly similar the application of a public law to personal misconduct; the protection of the public against the malicious activities of a corrupt individual. It now becomes necessary to determine what would be the civil responsibility of a judge acting upon the same questions and making the same determinations involved in the activities of the Governor-General complained of in this suit. The reason for this necessity is found in the analogy which I suppose to assert between the civil liability of a judge performing judicial functions and of the Governor-General exercising essentially the same attributes. The result of that analogy is that if a judge, performing the acts complained of, would not be civilly liable, then the Governor-General is not. I, therefore, proceed to discuss the civil liability of judges. I deal with it in three aspects: First, where the judge acts within the limits of his jurisdiction, and, second, where he acts in wholly without jurisdiction, and third, where he acts in "excess of jurisdiction." This discussion of the subject in such threefold aspect is rendered necessary by reason of the claim made in this case that the Governor-General, in whatever he did or brought about in the expulsion of the complainant and his companions, was wholly without authority, power, or jurisdiction and for that reason he is civilly responsible for whatever damages such illegal acts may have caused. My position in the discussion of the question is that a judge may, in reality, act wholly without power, authority, or jurisdiction and still not be civilly liable; that jurisdiction ought not to be, and can not be, a vital a controlling element in determining his liability; and that, if the question resolved by the judge be one whose determination required the exercise of the judicial functions, he is not civilly liable for damages caused by an act performed in pursuance of such determination even though he acts wholly without jurisdiction. I further contend that the doctrine making jurisdiction the test of liability is illogical and unsound, and that the doctrine of excess of jurisdiction, carried to its logical conclusion, is a complete refutation of the original theory. It is a universal statement of text writers that "no person is liable civilly for what he may do as judge while acting within the limits of his jurisdiction." This is also a settled principle of law as applied by the courts. This doctrine is so thoroughly established that no authority need be cited to sustain it. It is also universally asserted by the text writers, and maintained by many courts, that jurisdiction is the sole and exclusive test of judicial liability, and it is affirmed that a judge is always civilly liable if he act without jurisdiction. Mr. Cooley in his work on Torts (2nd ed., p. 486) says: Every judicial officer, whether the grade be high or low, must take care, before acting, to inform himself whether the circumstances justify his exercise of the judicial function. A judge is not such at all times and for all purposes; when he acts he must be clothed with jurisdiction; and acting without this, he is but the individual falsely assuming an authority he does no possess. The officer is judge in the cases in which the law has empowered him

to act, and in respect to persons lawfully brought before him; but he is not judge when he assumes to decide cases of a class which the law withholds from his cognizance, or cases between persons who are not, either actually or constructively, before him for the purpose. Neither is he exercising the judicial function when, being empowered to enter one judgment or make one order, he enters or makes one wholly different in nature. When he enters or makes one wholly different in nature. When he does this he steps over the boundary of his judicial authority, and is as much out of the protection of the law in respect to the particular act as if he held no office at all. This is a general rule. This same rule, it is alleged, is laid down by many authorities, among them being: Marshalsea case (10 Coke, 68b; 2 Adol. and E (N. S.) 978); Piper vs. Pearson (2 Gray, 120); Van Ky., 27); Bradley vs. Fisher (13 Wall., 335); McCall vs. Cohen (16 S. C., 445); Bigelow vs. Stearns (19 Johns., 39); Vosburg vs. Welch (11 Johns., 175); Terry vs. Wright (9 Colo. App., 11); Lange vs. Benedict (73 N. Y., 12); Austin vs. Vrooman (128 N. Y., 229). When, however, it became necessary to put this rule into practical operation, to apply it to a particular matter, it was found that it did not meet the necessities of the case. Its application did not work justice. It was found imperfect and inadequate. It was seen to be lame and halt. It condemned in one cases and relieved in another when there existed no real distinction between them, either in logic or justice. While this was not admitted, perhaps, in words by the courts, it was, nevertheless, seen and felt. Accordingly, laboring under the pressure of these conditions and to avoid the anomalous results flowing from a rigid application of the theory, they announced the doctrine of "excess of jurisdiction." This doctrine holds "that judges of superior and general jurisdiction are not liable to civil actions for their judicial acts when such acts are in excess of their jurisdiction." (Ross vs. Griffin, 53 Mich., 5 ; Grove vs. Van Duyn, 44 N. J. L., 654; Randall vs. Brigham, 7 Wall., 523; Jones vs. Brown, 54 Ia., 74; Lange vs. Benedict, 73 N. Y., 12: Yates vs. Lansing, 5 Johns., 282; Robertson vs. Parker, 99 Wis., 652; Willcox vs. Williams, 61 Miss., 310; Calhoun vs. Little, 106 Ga., 336; Miller vs. Seare, 2 W. Bil., 1141; Ackerly vs. Parkinson, 3 M. and S., 411; Austin vs. Vrooman, 128 N. Y., 229; root vs. Rose, 6 N. D., 575; Webb vs. Fisher, 109 Tenn., 701; U. S. vs. Bell., 135 Fed., 336; English vs. Ralston, 112 Fed., 272; 85 Fed., 139 Bradley vs. Fisher, 13 Wall., 335.) As before stated, the courts, in laying down the doctrine that a judge is exempt from civil liability if he acts within his jurisdiction, also assert at the same time that he is liable if he act without jurisdiction. In the same way, strange to say, the courts who lay down the doctrine that a judge is not liable civilly even if he act in excess of jurisdiction, also assert that he is liable if he act without jurisdiction. In other words, whether it be a court which asserts the doctrine of nonliability with jurisdiction or whether it be one who asserts the doctrine of nonliability with excess of jurisdiction, they all concur in asserting liability in case the court acts with lack of jurisdiction. T o put it in a different way: The decisions make no distinction between cases where the court acts with jurisdiction and those where he acts in excess of jurisdiction; but they do make a crucial distinction between those cases where he acts in excess of jurisdiction and those in which there is a lack or want of jurisdiction. It is accordingly evident, under this judicial conception, that, so far as the civil liability of the judge is concerned, acting completely with jurisdiction and acting completely in excess of jurisdiction mean exactly the same thing; while

acting completely in excess of jurisdiction and acting completely without jurisdiction mean exactly opposite things. This inference is the inevitable one because the judge is entirely exempt if he act within his jurisdiction, and he is wholly immune if he act in excess of jurisdiction; but if he act without jurisdiction, he is fully liable. I confess my inability to see how two conditions so different in their nature and characteristics as acting with jurisdiction and acting in excess of jurisdiction can be held to produce the same result having in mind always the proposition universally asserted by the courts to be the basis of that difference in liability, that the nature of the judge's act, i.e., whether it makes him civilly liable or not, depends entirely on jurisdiction. That the jurisdiction and excess of jurisdiction are conceptions are wholly different is perfectly evident from the standpoint of language alone. That their legal nature is entirely different will appear when we discuss want of jurisdiction and compare it with excess of jurisdiction. If "excess of jurisdiction" means anything different from "want of jurisdiction," under the doctrine of excess of jurisdiction as it is asserted, it lies not at all in the essential nature of those conditions but, rather, in the accidental circumstance stated in the decisions, that the court, having once acquired jurisdiction of the subject-matter and the parties, any act of his during the proceedings which is beyond or outside of real powers is in "excess of jurisdiction merely, and has a different quality from that which the same act would have if there had been no jurisdiction in the first instance. In other words, jurisdiction having once been present in the cause, it continues to shed its beneficent influence over the court and his acts, no matter where he goes or what he does. This is the distinctive feature of the doctrine of excess of jurisdiction as that doctrine is laid down. Jurisdiction once present is, under that doctrine, the touchstone of nonliability. As a necessary consequence, the court who lacks this protective genius of jurisdiction may lose his fortune and perhaps his liberty, although he may perform exactly the same acts as he who is wholly excused because he exceeds his jurisdiction. It becomes necessary to inquire, therefore, in what way of excess of jurisdiction differs essentially from lack of jurisdiction, for, if they produce results so violently in opposition, there must be a wide and essential difference between them a difference wholly unlike that set forth in the decisions. And first, as to excess of jurisdiction: To exceed jurisdiction is to go outside of it; to pass beyond its limits. To exceed is "to go beyond; to go too far; to pass the proper bounds or measure." "Forty stripes he may give him and not exceed." Excess is "the state of going beyond limits." Excess of jurisdiction is the state of being beyond, i.e., outside the limits, of jurisdiction. This is the only definition of excess of jurisdiction which the term will permit. This is precisely the definition given in the very decisions which lay down the doctrine, One of the first cases of in the United States to present the doctrine of excess of jurisdiction was that of Lange vs. Benedict (73 N. Y., 12). In that case it appeared that the defendant presided as judge at a regular session of the United States Circuit Court, before which plaintiff was tried and convicted of a statutory offense punishable by a fine or imprisonment. He was sentenced by the defendant to pay a fine and to be imprisoned. Plaintiff paid the amount of the fine to the clerk of the court, who paid it into the United States Treasury. The plaintiff was also imprisoned. A writ of habeas

corpus was granted by and returned into said court during the same term, and, on such return, defendant, holding the court and as judge thereof, vacated and set aside the sentence, and resentenced the plaintiff to be imprisoned for the term one year. Under this sentence the plaintiff was imprisoned. Such proceedings were subsequently had that the Supreme Court of the United States (Ex parte Lange, 18 Wall., 163, 176) adjudged the resentence to have been without authority and void. In deciding the case on the proceedings mentioned the Supreme Court of the United States said (Ex parte Lange, supra): We are of the of the opinion that when the prisoner, as in this case, by reason of a valid judgment, had fully suffered one of the alternative punishments to which alone the law subjected him, the power of the court to punish father was gone. That the principle we have discussed then interposed its shield, and forbid that he should be punished again for that offense. The record of the court's proceedings, at the moment the second sentence was rendered, showed that in that very case, and for that very offense, the prisoner had fully performed, completed, and endured one of the alternative punishments which the law prescribed for that offense, and had suffered five days' imprisonment on account of the other. It thus showed the court that its power to punish for that offense was at an end. Unless the whole doctrine if our system of jurisprudence, both of the Constitution and the common law, for the protection of personal rights in that regard, are a nullity, the authority of the court to punish the prisoner was gone. The power was exhausted; its further exercise was prohibited. It was error, but it was error because the power to render any further judgment did not exist. Commenting on this same case the Supreme Court of the United States in the case of Ex parte parks (93 U. S., 23) said: But after the thorough investigation which has been given to this subject in previous cases, particularly those of Ex parte Yager (8 Wall., 85( and Ex parte Lange (187 id., 163), it is unnecessary to pursue the subject further at this time. The last-mentioned case is confidently relied on as a precedent for allowing the writ in this case. But the two are totally unlike. In Ex parte Lange we proceeded on the ground that, when the court rendered it second judgment, the case was entirely out of his hands. It was functus officio in regard to it. The judgment first rendered had been executed and satisfied. The subsequent proceedings were, therefore, according to our view, void. In spite, however, of the fact that the act of the Supreme Court of the United States had held that the act of the court in resentencing plaintiff was absolutely without jurisdiction and void, nevertheless, the court of appeals of the State of New York, deciding the action against the judge for damages (Lange vs. Benedict, supra) after the rendition of the judgment of the Supreme Court of the United States on the question of the resentence, said, in giving a definition of the phrase "excess of jurisdiction:" "The act of the defendant was then one in excess of or beyond the jurisdiction of the court." "He had jurisdiction of the cause originally. That jurisdiction had ceased. His further acts were beyond or in excess of his jurisdiction." "If it be admitted that at the instant of the utterance of that order, jurisdiction ceased, as is claimed by the plaintiff, on the strength of the opinion in Ex parte Lange (supra), as commented upon in Ex parte Parks (93 U.

S., 18), and that all subsequent to that was coram non judice, and void; still it was so, not that the court never had jurisdiction, but that the last act was in excess of jurisdiction. If the intention of the New York in that case was to use the phrase "excess of jurisdiction" in the sense that there was an essential and vital distinction between it and "want of jurisdiction," a distinction so essential and vital as to warrant liability in the one case and nonliability in the other, I am in entire disagreement with its conclusion. If I were unsupported in my disagreement, I should hesitate long and doubt much before I differed with authority so eminent. But the Supreme Court of the United States, as shown by the quotation given, has held in that very case that the district court, in resentencing Lange, acted with complete and utter absence of jurisdiction. I am in perfect accord with the use of the phrase "excess of jurisdiction" when it describes a particular legal condition which, in some of its colorings, some of its accidental or incidental features, is somewhat different from the legal condition "absence of jurisdiction." But I am not in accord with its use if it is meant to describe something which is essentially different in quality, that is, a different thing, from excess of jurisdiction. If the difference meant to be shown is, in its nature, the same difference which is indicated between two horses when it is said that one is black and the other bay, I agree. But if it is meant thereby to indicate that one is a horse and the other a cow, I disagree. The two legal conditions are essentially and really identical. Their coloring may be different but they are the same animal. The question before us is not whether there is such a difference in markings that the two conditions ought to be given different names as a matter of convenience, but, rather, is there a difference so important, so essential, so vital that we may established upon that difference as an eternal foundations a just principle of law which wholly saves in the one case and utterly destroys in the other. The real and practical question for us "What does that difference amount to? What results may it justly produce to the parties and to the court? What results must it necessarily produce. In the case of Clarke vs. May (2 Gray, 410) a justice of the peace, having jurisdiction of the cause, summoned a person to appear before him as a witness therein. The person disobeyed. The case was tried and ended. Thereafter, the justice issued process to punish for contempt the person who had disobeyed his subpoena. He was arrested, fined, and not paying, was committed. It was held and jurisdiction of magistrates in such cases was only incidental and auxiliary to the trial of the cause in which the witnesses were summoned; and could not be legally exercised, except during the pendency of such cause; that after its final disposition by a judgment, the authority to punish such contempt ceased, and that Clarke was therefore illegally committed. . . . Although he had jurisdiction of the subject-matter, he was empowered by law to exercise it only in a particular mode, and under certain limitations. having disregarded these limitations, and exercised his authority in a manner not sanctioned by law, he has been guilty of an excess of jurisdiction, which renders him liable as a trespasser to the injured party. In the case of Gordon vs. Longest (16 Peters, 97), where the defendant took the proper steps, under a statute which required a State court under certain conditions to transmit the cause to the United States courts, to remove an action brought against him in the State court to the United States court, and, where the State court persisted notwithstanding such steps, in trying the cause, the court said:

This being clear in the language of the above act, it was the duty of the State court to proceed no further in the cause. And every step consequently taken, in the exercise of a jurisdiction in the case, whether in the same court or in the Court of Appeals, was coram non judice. The case of Austin vs. Vrooman (128 N. Y., 229) is one very similar to the one last mentioned. There the defendant, a justice of the peace, caused the plaintiff to be arrested on a charge of supplying diluted milk to a butter factory. Plaintiff, on being arraigned, pleaded not guilty, waived preliminary examination and offered bail for his appearance before the next grand jury. The offer was overruled by the defendant. Her was tried, found guilty, and sentenced to pay a fine and to be imprisoned until paid, not to exceed ninety days. Pursuant to such sentence he was confined in the county jail. The statute making the act of plaintiff a crime provided that when a person charged with a violation of the Act should be brought before a justice of the peace, he should have the right to elect to be tried by a jury after indictment, and on such election the justice could not proceed to try him but could only hold him to a court having authority to inquire, by intervention of a grand jury, into offenses triable in the county. In this case the court said, after referring to the case of Gordon vs. Longest (supra), in which it was held that, in a case very similar in principle to the one under consideration, any action taken by the State court after refusing to transmit the cause before it to the United States court was wholly void: Here in the course of proceedings which he was forced to entertain, and in the case of one over whose person he has properly acquired jurisdiction, the justice is confronted with the necessity of deciding a question depending upon the construction to be given to a statute, and that question must be decided by him one way or the other before he can take another step in those proceedings which, up to that moment, have been legally and property pending before him and over which he has had full and complete jurisdiction. It seems plain that his decision upon the question is one in the course of a proper exercise of the jurisdiction first committed to him, and that his error in deciding that he had jurisdiction to proceed was an error of judgment upon a question of law, and that he is therefore, not responsible for such error in a civil action. It is unlike the case where a justice of the peace proceeded to try a civil action for assault and battery. (Woodhard vs. Paine, 15 John., 492). The justice never had in such case obtained jurisdiction over the subjectmatter and he could not obtain it by deciding that he had it. The case falls under the principle of law that where a judge never has had jurisdiction over the subject-matter, he acts as a trespasser from the beginning in assuming it, and his decision that he has it is no protection to him. I know it was stated in Gordon vs. Longest (16 Peters, 97), in a case where the defendant took the proper steps to remove an action brought against him in the State court to the United States court and where the judge of the State court persisted, notwithstanding those steps, in trying the case, that every step subsequently taken by the State court in the exercise of jurisdiction was coram non judice. Yet in such a case the question is put whether the State judge would be liable for proceeding with the case in the honest exercise of his judgment. Being thus informed of the judicial meaning of the phrase "excess of jurisdiction," it becomes necessary, second, to determine what is meant judicially by the expression "lack of jurisdiction." An example frequently given by the courts to express what is meant by lack of failure of jurisdiction is that of a justice of the peace taking cognizance of and trying a civil action for

assault and battery. Over such actions jurisdiction of the peace. In fact, the law expressly prohibits them from taking cognizance of such actions. In such case, the justice never obtains jurisdiction over the subject-matter. He acts wholly without any authority or jurisdiction. A case illustrating want of jurisdiction is that of Piper vs. Pearson (2 Gray, 120). There a justice of the peace of the county of Middlesex tried an individual named Russ for an offense committed within the district of Lowell. By statute said justice had no power or authority to take cognizance of offenses committed "within the district of Lowell." The court said: "In the case at bar, the defendant had no more power to entertain jurisdiction of the complaint against Russ any other individual in the community." If a magistrate acts beyond the limits of his jurisdiction, his proceedings are deemed to be coram non judice and void." "If he has no jurisdiction of a cause, he can not sit as a magistrate to try it, and is entitled to no protection while acting beyond the sphere of his judicial power. His action is thus extrajudicial and void." This case, however, is not one which ought fairly to be taken as generally illustrative of that class wherein the court acts wholly without jurisdiction, inasmuch as here whether or not the court had jurisdiction was a question] of fact. Whether or not the crime was committed "within the district of Lowell" was not a question of law. Nevertheless, the same principle would have been involved if there had been a dispute as to the district within the crime was actually committed and the court had decided that question upon conflicting evidence. In the case of Bradley vs. Fisher (13 Wall., 335), the court gave the following as illustrating a condition of complete lack of jurisdiction. Thus, if a probate court, invested only with authority over wills and the settlement of estates of deceased persons, should proceed to try parties for public offenses, jurisdiction over the subject of offenses being entirely wanting in the court, and this being necessarily known to its judge, his commission would afford no protection to him in the exercise of the usurped authority. Having seen from the adjudicated cases the meaning given to the phrases "excess of jurisdiction" and "want of jurisdiction," it remains to note what has been judicially declared to be the difference between them. The case last cited contains a statement of that difference. Immediately following the quotation taken from that case and set forth above appear these words: But if on the other hand a judge of a criminal court, invested with general criminal jurisdiction over offenses committed within a certain district, should hold a particular act to be a public offense, which is not by the law made an offense, and proceed to the arrest and trial of a party charged with such act, or should sentence a party convicted to a greater punishment than that authorized by the law upon its proper construction, no personal liability to civil action for such acts would attach to the judge, although those acts would be in excess of his jurisdiction, or of the jurisdiction of the court held by him, for these are particulars for his judicial consideration, whenever his general jurisdiction over the subject-matter is invoked. Indeed some of the most difficult and embarrassing questions which a judicial officer is called upon to consider and determine relate to his jurisdiction, or that of the court held by him, or the manner in which the jurisdiction from liability which obtains for errors committed in the ordinary prosecution of a suit

where there is jurisdiction of both subject and person, applies in cases of this kind, and for the same reasons. This excerpt illustrates the difference between excess of jurisdiction and lack of jurisdiction as it is universally presented by text writers as well as by courts. The suggestions made after the discussion of the case of Lange vs. Benedict are, in principle and in effect, applicable to the cases just presented. Nothing could be clearer than that the court in Clarke vs. May, acted wholly without jurisdiction. It is of no consequence what it is called, whether excess of jurisdiction or failure of jurisdiction; it still remains the same thing. The court itself said so when it used the words "after its final disposition by a judgment, the authority to punish such contempt ceased, and that Clarke was therefore illegally committed." The case of Austin vs. Vrooman is very like that of Gordon vs. Longest, wherein the Supreme Court of the United States held that the lower court acted wholly without jurisdiction in retaining the cause before it and proceeding to its disposition. Being now fully informed of the meaning of the two legal conditions, "excess of jurisdiction" and "lack of jurisdiction," and also of the difference between them as presented in the decisions of the courts, I now desire to consider whether this difference is worthy in any manner of effecting the exactly opposite legal results which it is alleged they produce. If they produce results so unlike, they should be so different in their essential natures as to be plainly and easily distinguishable. Yet in spite of that, after a careful consideration of every adjudicated case upon the subject within my reach, I have been forced irresistibly to the conclusion that there is not, really and intrinsically, the slightest difference between them. The alleged difference is a fiction of law, pure and simple, born of the necessity to escape the logical but wholly unjust and indefensible consequences of a rule of liability based on no sound principle of law and incapable of defense upon any theory of logic or justice. While we have seen from the cases cited the different circumstances which attended the courts up to the time when they performed the acts complained of, namely, that the one never had jurisdiction at all and the other had it at first but abandoned it later, we have nowhere seen in those authorities nor why they should produce results so violently in opposition. We have also seen from those cases that excess of jurisdiction is the estate of being beyond the limits of jurisdiction, i.e., outside of the power and authority conferred so far outside indeed that the act of the court is coram non judice and void. (Gordon vs. Longest, 16 Peters, 97; Ex parte Lange, 18 Wall., 163; Clarke vs. May, 2 Gray, 410; Ex parte Park, 93 U. S., 23.) We have also noted from those decisions that the only characteristic of excess of jurisdiction, the quality and the only quality which distinguished it from lack of jurisdiction, that which gave it its peculiar and distinctive virtue, was that, in excess of jurisdiction the court had jurisdiction at the beginning of the cause, but lost it later; whereas in lack of jurisdiction the court never had jurisdiction at all. Now, if a court is really outside of the limits of his jurisdiction, what difference does it make, as to his liability for subsequent acts, when he arrived there? Ought the time when he finds himself outside to have any significance whatever? Should the fact that he was outside at the beginning of the cause, instead of when it had run half of its course or more, have any force or effect? Is the judge who was never inside the jurisdictional inclosure any more outside of it than he who,

having once been within, voluntarily steps wholly outside? Both being completely outside, is one in worse position, legally or morally, than the other? Does the mere fact that the one had never been inside necessarily make him a greater malefactor than the other who comes as completely out, having once been in ? Ought the legal consequences of their acts to be different when both are acting from exactly the same basis, viz, outside of their authority? One who steps from his house into the street is as much outside the structure as though he had never entered it; and while there, he is as unprotected from the elements as though he had never had a roof over his head. Although he may return to his house and enjoy again its shelters and comforts, still he can never change the fact that he once stood unprotected in the street, that the changing wind had once buffeted him as it willed, that the storms had once drenched him to the skin, and that the frost had once bitten him to the bone. He who owns a million of money and throws it into the sea remains in as penniless a poverty as he who never owed a dollar in all his life. The court who, having once been clothes in the garment of jurisdiction, divests that garments, stands forth as judicially naked as he who had never robed with the vestments of authority. So, the court that once had jurisdiction of a cause and divests that power by his own act stands thereafter as bereft of judicial authority as though he had never acted under sanction of the law. As a matter of language, that is the only meaning;" as a matter of fact, that is the only definition claimed for it. I am fully aware that a judge of a court which acts wholly without jurisdiction is, in a sense, a usurper. I know that a judge who proceeds in complete absence of jurisdiction, really and effectually by such act, makes a law to fit the case. In other words, he legislates. I admit that to permit a judge thus to make a law and then to adjudicate it also is to permit a approach to tyranny. I am fully aware that this is the essence of the argument against the immunity of the judge who thus acts. It must not be forgotten, however, that we are discussing whether there is an essential difference between lack of jurisdiction and excess of jurisdiction. If therefore, we find that there is fully as much tyranny in the one as in the other , what matters it how much tyranny there may be in lack of jurisdiction? The cry of tyranny there may be in lack of jurisdiction will be effectually stopped if it appears that acting in excess of jurisdiction, the thing which is permitted by the courts wholly to excuse effects the same result. That the one is as tyrannical as the other can not be doubted. A judge, having by law general jurisdiction criminally, who declares a state of facts presented to him to be a crime within the provisions of that law, when in reality it is not a crime at all, creates a law as distinctively and completely as does the judge who decided that there is a law giving his jurisdiction criminally, when in fact no such law exists. In such case, he declares a crime to exist when it really does not. To enable a court to declare an act a crime, there must be a law making it a crime. To declare an act a crime when there is no law making it such, is, so far as that particular case and all others like it are concerned, to make a law by judicial fiat. What signifies it that the court has jurisdiction of all larcenies if he declares an act a lacerny which in truth and reality is not? The fact that he has jurisdiction of all lacernies none the less makes his erroneous act the creation of a new law. What does it signify that hr once had jurisdiction when he thus, by his naked fiat, makes criminal a act otherwise legal and moral, and thereby convicts and imprisons an innocent man in violation of the law of the land. He could go no farther, could do no more if he acted wholly without jurisdiction from the beginning, Of what significance is it that in the one case he acts in excess of jurisdiction and in the other without jurisdiction when he does exactly the same thing and produces exactly the same result in both cases?

We have already seen that the only difference which any court or text writer has been able to point out between the two cases is the fact that in case of excess of jurisdiction the court had jurisdiction of the subject-matter at the beginning whereas in the other case jurisdiction was never present at all. The only use which courts and text writers have made of that difference, the only use in fact that could possibly be made of it, is that, having jurisdiction of the subjectmatter, the court then has the power to determine whether or not a given set of facts presented to him to induce his action falls within his jurisdiction; whereas, in the case of failure of jurisdiction there being in fact no law conferring powers, the court had no power or authority to determine anything whatever. It is urged also than an indispensable prerequisite of the effective administration of justice is that a judge, having jurisdiction, be allowed to decide whether a given set of facts is within the law by which his jurisdiction is conferred. But is it any more necessary and essential that he be allowed to decide that question than it is that he be allowed to determine whether he has any power at all in the premises? Is it more essential for him to be allowed to decide whether a certain set of facts is or is not within his powers than it is to allow him to determine whether or not he has powers? Is it any more an inevitable prerequisite that he be permitted to determine the extent of his powers than that he be allowed to decide whether he has powers? If he is a court, that very fact makes it necessary to determine what his powers are. To do that he must not only determine what the laws are and what they mean, but he must also determine whether there is a law. It is sometimes a very much more difficult question to determine whether there is any law at all than it is to decide what the law means when its existence is admitted. But, comes the suggestion, the court in such cases having once had jurisdiction of the subject-matter "no personal liability to civil action for such acts(in excess of jurisdiction) would attach to the judge, although those acts would be in excess of his jurisdiction or of the jurisdiction of the court held by him, for these are particulars for his judicial consideration, . . . (Bradley vs. Fisher, supra.) This suggestion may be answered in two ways: It means nothing to say that the law required the lower court to act upon the question before it, it having jurisdiction of the cause at the time and it already having proceeded therewith to the point where it was confronted with the question concerning which it erred. Exactly the same thing, in effect and in principle, may be said of the court which proceeded to take cognizance of a cause in entire absence of authority to do so. For, the law also requires a court to act whenever a question is presented to it, no mear if it be one over which it has no power or authority whatever. Law and necessity alike compel to him. If he have no jurisdiction or authority, he must, nevertheless, act. He must declare he has not and refuse to proceed. But the point is, he must act, he must decide, he must adjudicate; and he must do so whether the question of his jurisdiction be clear or doubtful. In both cases, excess of jurisdiction and failure of jurisdiction, the courts are confronted with exactly the same necessity, each must act. The question confronting one court, viz, whether it has jurisdiction or not, may be much more doubtful and far more difficult of solution than that which faces the other. Yet one is liable and the other not. I have looked in vain for a valid or convincing reason why, both being in error, the judge of one court should be destroyed and the other saved. This suggestion also contains an admission rather than an argument an admission which destroys absolutely the theory that the crucial test in determining the civil liability of a judge is that of jurisdiction. This suggestion admits that the thing which excuses is not jurisdiction, but judicial action; not jurisdiction, but the exercise of the judicial function; not jurisdiction, but

judicial consideration;" and that the only reason why the one excuses and the other does not is the opportunity which the former furnishes for the use of the judicial faculty. We must conclude, therefore, since it is not jurisdiction, but judicial action, which excuses, that whenever and wherever a court exercises the judicial function, he will not be personally liable civilly for the result of his action, and this utterly regardless of whether he ever had jurisdiction or not. and that is precisely what i am contending for. I regard the doctrine of jurisdiction as counter to that public policy which lies at the base of and is the sole and whole reason for the immunity of judges from civil liability. That public policy demands that a judge shall be protected when he is a judge, not when he has jurisdiction. He is a judge when he acts like a judge; that is, when he acts judicially. All that public policy requires in order to extend its perfect protection over the judge is that the question in which the error is made shall be a judicial question. In other words, it is the nature of the question involved which is transcendentally important, and not the position in which the judge finds himself legally, before, at the time of, or after his error. The question is "What kind of question were you deciding when you made that error?" not "what was your position before or after you made it?" It is, it can be of no consequence whatever whether there be a failure of jurisdiction or excess of jurisdiction. Is the question for determination one which requires the exercise of judicial functions for its resolution? If it is then that is an end of the matter of liability, utterly irrespective of jurisdiction. An error by which a court induces itself to act wholly without jurisdiction is an error of law, an error of judgment after consideration, of exactly the same nature as that which induces a court to act in excess of jurisdiction. It is an error of judgment as to whether he has any power at all in the premises. It is an erroneous determination of a question which, by virtue of the fundamental constitution of his office, is inexorably forced upon him for determination as his very first act in every case. Public policy, indeed, public necessity, demands that he act, if he is judge. The safety, stability, and perpetuity of the State and its institutions imperatively require him to act. Therefore, being thus driven to act, and his first act being necessarily and inevitably to determine whether his authority comprehends the subject-matter presented to him, can it possibly be true that public policy, the very force that drove him to act, will punish him for such action if he has exercised the very functions with which that public policy had endowed him? I am aware that it may be said that public policy does not protect those who act wholly without authority. But my contention is that he has authority. The fact that he is a judge means nothing else. That one has been named a judge is no idle thing. It is to be presumed that he has some powers, that some authority attaches to the office, or it would not have been created. As a judge he has responsibility of the most solemn and important character. He has duties correspondingly solemn and important. By far the greatest and most important of these is to determine what those powers are. But this is simply the determination of the question of jurisdiction. This is, as we have seen already, a judicial determination of the purest character. If he determines that question wrongly and proceeds thereafter to act, he acts wholly without jurisdiction. But is he more guilty or culpable than the judge who, with equal error, determined a similar question of jurisdiction but at a different period of the cause? Is it possible that one can be appointed to one of the highest and most august positions in the gift of man, and still not be able to determine what he may do without subjecting himself to the risk of financial ruin, and may happen, of imprisonment? If so, his office is not only a monstrous farce, but is also a thing which deserves, as it certainly will receive, the contempt and the jeers of mankind. I repeat that a judge acts judicially as purely and perfectly when he is determining, at the very inception of the proceeding, the question of whether or not he has any jurisdiction whatever in the premises as he does when, later in the case, he decides

what the extent of that jurisdiction is. That is a judicial determination as clearly and unmistakably as would be his decision that A was entitled to a judgment against B only of a very much more fundamental character. So that, if it is the use of the judicial function which absolves, why should the one be excused with the respect of the community and the other condemned with ruin and disgrace? But, comes the reply, a judge id not a judge if he have no jurisdiction; and he can not exercise judicial functions unless he is a judge. Therefore, if he have no jurisdiction he can not exercise judicial functions. Not being able to exercise judicial functions, he cannot, as a necessary consequence, be excused from liability, inasmuch as immunity from liability springs solely from the exercise of such functions. But that logic is fatally defective. Its major premise, namely, that if he have not jurisdiction a judge is not a judge and can not, therefore, exercise judicial functions, is wholly false? How is he to know whether he has jurisdiction or not? By what process does he determine whether or not he has any power at all? Does that determination come to him by inspiration? Is it handed to him ready-made? How does he arrive at the conclusion that he has jurisdiction or that there is a complete failure of it? Why does he arrive at one of these conclusions and not the other; and why does he not arrive at both? Is he simply a man when he determines the question of jurisdiction but a judge when he decides every question in the case? The answer to these question is simple. The determination by the court of the question whether he has not jurisdiction is a judicial determination. The indispensable prerequisite to the simplest and most elementary judicial act of any court is the determination of the question of jurisdiction. It is utterly impossible for him to act in the simplest matter that can be brought before him without first making that determination. It is an inevitable necessity which is inexorably required to precede everything else in the functions of every court. It is thrust upon him instantly with the appearance of the first suitor in his court. It is the indispensable prerequisite of every judicial act. It was elemental in the creation of the judicial office. The implacable forces that created the office, the unalterable nature of its functions, drive him irresistibly to that primordial determination. That necessity is ever with him. It is imperative, merciless, and inexorable. Born with his office, it dies only with his office. May we say, then, that it is not a judicial determination the exercise of judicial functions? Shall we assert that it is not an exercise of judicial nature of his office inevitably requires him to decide as an absolute condition precedent to the performance of any other act in the cause? It seems to me that it can not be doubted that it is a judicial determination, and one of the very first importance. In fact, it is the highest and most important judicial function which a court can possibly exercise. The court, although he sees his jurisdiction written as clear as light, makes, nevertheless, the judicial determination of jurisdiction as really and as fully as does the court who spends days and nights of laborious inquiry into doubtful laws to decide the same question. The court who had jurisdiction and then exceeded it inevitably determined first of all that very question of primary jurisdiction as completely as did the court who, really having no jurisdiction, determined erroneously that he had; and, if the first had made a mistake in determining jurisdiction at the beginning, ought he suffer more than he did suffer for making later in the cause the very same mistake, the mistake by which he exceeded his jurisdiction? The mistake in either case was over the same question, namely, jurisdiction. Ought it, in fairness, to make any difference when the jurisdictional mistake is made? Ought the judge who made the mistake at the beginning of the cause to suffer more than he who made a mistake over the same question later in the same case? Ought an error in regard to jurisdiction made at the opening of court be more fatal or require severer punishment than one made at the close? Is a mistake greater because it was made at 10

a.m. than 5 p.m. To be sure, in the one case he had jurisdiction at first; but he used it only as a means to exceed that jurisdiction later, to put himself outside of it. That is simply a history of how he came to be outside of his jurisdiction but, of itself, it furnishes no reason why he should be excused from liability while the judge who never had jurisdiction should be ruined financially, disgraced before the public and his usefulness as a judge destroyed, wholly irrespective of the nature of the questions involved or the functions exercised, and utterly without regard to the results produced. I know it may be urged that the law having given the court jurisdiction and power to embark upon the cause, it must necessarily be presumed that he has also power and jurisdiction to dispose of it; and that if that disposition is wrong he ought not to be liable as he was simply performing the judicial duty which the law imposed. Exactly. But when the judicial office is created and a judge is appointed, is there not, must there not be, a presumption of power on his part to determine the limits and extent of his jurisdiction? Indeed, must he not necessarily have the power to determine whether he has any power at all or not? The jurisdiction to determine whether he has jurisdiction? The question whether a court has any power at all is often involved in greatest doubt. The very existence of the law under which he is asked to act may be doubtful. When its existence is assumed, its meaning, extent, scope, and applications. He must decide all these questions before he proceeds with the case presented. I say again, he must have, necessarily, jurisdiction to determine whether he has jurisdiction. Who is to determine that question if he does not? He has no one to do it for him; no one to whom he may turn for assistance. There is no one to whom he may hand the responsibility. He must act. He alone must assume the responsibility. He may not idly on his bench and refuse to act because he is uncertain whether or not he has the authority to act. Such conduct would warrant his removal from office. But removal would not be the cure inasmuch as his successor would be in the same condition of doubt. If the judge refused to act in every case where jurisdiction was in doubt, a court of justice would be a rank imposture. The judge must act, and he must act not only in cases of doubt upon the merits where jurisdiction is conceded, but he must also act in cases where jurisdiction itself over the whole subject-matter is a serious and doubtful question. How can it be said, then, that in the one case he is liable and in the other he is not? A judge of a court having jurisdiction and acting on the merits of a question may, by a decision plainly and manifestly in violation of the law, literally confiscate the property of a party litigant and thereby reduce him and his family to beggary, himself escaping entirely unscathed; while the judge of another court who , by an erroneous assumption of jurisdiction after a thorough and painstaking investigation of that question, a question concerning which the best minds might reasonably differ, promotes thereby the real justice between the parties upon the merits, would, nevertheless, be helplessly liable to respond fully in damages for the injuries caused by his act, with all that such liability might imply to his fame, his fortune, and his official position. It may be added, by way of repetition, that it signifies nothing to say that, because a curt finds himself lawfully in the midst of a cause, he must be allowed to determine it in one way or another, and that in doing so he should be protected. It is no more essential that he continue it than that he begin it. A litigant who is not permitted to finish is in no worse condition than one who was never allowed to begin. Moreover, if it held that the law requires a court to begin right, it must be equally true that a court having begun right, must continue right. There should be no more license to continue wrong than to begin wrong. The prohibition should be equal in both cases. While it is true that a court can not give itself jurisdiction by determining that it has it, nevertheless, that idea in nowise militates against the position here taken, as the argument which

it presents is as applicable to a case involving excess of jurisdiction as to one where there is want of jurisdiction. If we follow strictly the rule which holds civilly liable the court who, at the beginning of the cause, errs, as to his jurisdiction over the subject-matter, and wholly excuse him who errs as to his jurisdiction over the subject-matter later in the cause, we have this result: A matter is presented to a court for action. He has really no jurisdiction whatever over it; but, after due deliberation decides that he has, and proceeds. He arrests A, tries and convicts him of homecide, and sentences him to twenty years in prison. Question determined, jurisdiction. Act, coram non judice and void. Result, judge liable. A matter is presented to another court for action. He has jurisdiction in the first instance. He proceeds. Later he arrives at a point in the case where he fails absolutely of jurisdiction to proceed further with the cause. But, after due deliberation, he nevertheless decides that he has jurisdiction and proceeds. He tries and convicts B of homecide and sentences him to twenty years in prison. Questioned determined, jurisdiction. Act, coram non judice and void. Result, judge not liable. Why this difference in result? It is no answer to easy that, in the second case, the court, having jurisdiction, had, therefore, the right to determine any question that might arise during the progress of the case, even if it be a question as to his jurisdiction to proceed further, and in making such determination he would be protected; for, in the first case, the fact that he is a court gives this right, as it places upon him the duty to determine whether he has the authority to inaugurate the proceedings, and in the determination of that question he, too, ought to be protected. The determination of the jurisdictional right to begin, is of exactly the same nature and quality as the determination of the jurisdiction to continue. The resolution of the two questions involves exactly the same mental processes, the use of exactly the same discretion, the adoption of precisely the same methods, the exercise of identical functions; while the purposes animating the courts in their decisions are absolutely the same in both cases, namely, the faithful and efficient discharge of the duties and obligations of the office. The two question themselves, as representing the two legal conditions, are exactly the same inherently. The fact the one question is determined at one stage of the cause, while the other is decided at another, is purely accidental and incidental. Let me give an example more concrete: Whether or not a Court of First Instance of the Philippine has jurisdiction over a given subject-matter depends upon whether or not a certain law of Spanish origin in force prior to the American occupation survived the change of sovereignty. If that law survived he has jurisdiction. If did not, he is absolutely devoid of jurisdiction. The determination of that question involves a careful investigation of the fundamental law of the Islands as derived from American sources; an interpretation of its force and significance as well as the scope of its application; the construction of the order of the President to General Merritt and of the proclamation of the latter to the Philippine people, both heretofore quoted, and last, and perhaps most difficult of all, the resolution of the question presented by that part of the above-mentioned order of the President which provides that "the municipal laws of the conquered territory, such as affect private rights of person and property, and provided for the

punishment of crime, are considered as continuing in force, so far as they are compatible with the new order of things." When is a Spanish law "compatible with the new order of things' and when incompatible? Upon the determination of that questions depends absolutely the jurisdiction of the court. Was ever a question more perfectly judicial? Could there possibly be a question in the resolution of which the judicial function was more clearly exercised? Has there ever been, or will there ever be, a situation in which a man could be more a judge than here? Yet we are asked hold that the Court of First Instance would not be protected in the determination of that question. Moreover, this rule take cognizance whatever, as we have before noted, of the nature of the questions to be solved by the two judges in question. It makes no difference between the cases where the question of jurisdiction of great doubt and difficulty and those where the lack of jurisdiction and authority is so plain and clear that it ceases altogether to be a question. For example, in the illustration given, wherein the Court of First Instance was obliged to determine the existence of a Spanish law, there is presented a question of great intricacy and extreme difficulty of determination. Yet the judge who decided that question, after the most careful and painstaking investigation and study, and decides wrongly, receives, under the doctrine we are discussing, no more mercy than another judge who, during the progress of the cause, orders the head of one of the parties stricken off by the sheriff. Although the lack of jurisdictional authority or power to make such an order is so clear and so plain that it can not be a question of any kind from any point of view, and especially not one requiring for its solution the exercise of the judicial functions; and although such an act so transgresses every judicial precedent, so violates every principle of law, so outrages the commonest sense of justice, and so debauches the functions and purposes of a court, that no judge can be heard to say that he was exercising judicial functions in the performance of such an act, nevertheless, that judge, so far as his civil responsibility is concerned, stands, under the doctrine referred to, in exactly the same position as the judge who clearly and admittedly exercised judicial functions in the determination of a question over which the best legal minds have been found to differ. Still worse. A judge who, even while acting in excess of his jurisdiction, corruptly and criminally sells his judgment to whomsoever pays him highest, and thus, debauches and prostitutes the functions of his office before the world, would not be liable civilly to the person injured; while another judge, learned in the law, unimpeachable in integrity, unquestioned in honesty, but who made a mistake of judgment over the intricate and doubtful question of his initial jurisdiction, would be ruined financially and his usefulness as a judge completely destroyed. And all this because one judge erroneously decided the question of jurisdiction at the beginning of the cause, while the other erroneously decided the same question later in the case. Under this doctrine I am anxious to know what reason would be given for holding civilly liable a judge who, as a court, having jurisdiction of the cause and parties, should order the head of one of the parties stricken off and that order should be obeyed. That he would be so liable is certain. But what reason could be given for it under the doctrine that jurisdiction is the touchstone of liability? He had jurisdiction of the case, and, under the doctrine, had the right to pass upon any question which he might regard as related to the case, and he could not be questioned civilly for so passing his judgment even though it lead him wholly outside and beyond his jurisdiction and indeed him to perform acts completely illegal and void. It is no answer to say that the act was wholly outside of his jurisdiction and power to perform and was illegal and void, for, so was the

act of the United States Circuit Court judge in Lange vs. Benedict, supra; and yet he was held not to be civilly liable. The mere fact that he acted in excess of his jurisdiction is not sufficient to condemn under the doctrine. Neither is it a reply to say that such a question could not possibly arise in the case, nor that such an act was so gross and apparent a violation of the duties of the court and such a palpable prostitution of his proper functions, that he would not be allowed to say that he acted as a judge in the performance of such an act. These are not answers, base the liability of the judge not upon the question of jurisdiction but upon the proposition that the question was one the determination of which required the exercise of judicial functions. The essence of the whole matter is this. Was the determination of the question whether he had the right to perform the act complained of one which required the exercise of the judicial function? Whether or ]not he was, in the resolution of the question, exercising judicial functions does not all depend upon whether he had jurisdiction of the subject-matter of the cause. As we have said, a court may exercise judicial functions as perfectly and as fully in determining whether he has jurisdiction of the subject-matter presented to him for action as he may in deciding any question in the case when his jurisdiction of the subject-matter is conceded. A court always has power and jurisdiction to determine whether it has jurisdiction. We thus see the embarrassment which is necessarily present in attempting, under the doctrine that jurisdiction determines liability, to hold a judge who has jurisdiction of the cause civilly liable for performing an act outside of his jurisdiction no matter how far outside it may be. It is as apparent, also, that all such embarrassment disappears when, instead of making jurisdiction the test of liability, we make the exercise of judicial functions the real test. I believe that it has been thoroughly established that the test of judicial liability is not jurisdiction. I believe it has also been as thoroughly established that such liability depends wholly upon the nature of the question which was being determined when the error complained of was made by the court; that is, it must have been a question the determination of which required the exercise of judicial functions. With that condition, jurisdiction has nothing vital to do. When, then, is a judge civilly liable for his illegal acts? When the question which he wrongly determines is one in the solution of which he can not be said to use judicial attributes. I again present the illustrations I have already given. During the course of a trial the judge orders the head of one of the parties stricken off by the sheriff. As we have already said, such an act so transgresses every judicial precedent, so violates every principle of law, so outrages the commonest sense of justice, and so debauches the functions and purposes of a court, that no judge can be heard to say that he was exercising judicial functions in its performance. His lack of power is so clear that, whether he has such power, ceases to be a question. There are certain limits beyond which a judge will not be permitted to say that he was a judge, or that he was acting as a judge. On the other hand, the example given in which the Court of First Instance was required to determine the question of the survival of the Spanish law in order to reach a conclusion as to whether he had jurisdiction or not, clearly discloses a case where the judicial attributes were exercised. That is the question over which courts in general may really differ. Concerning it two opinions are allowable. In other words, there are two sides to the question. If the question is one which a judge, qualified in the average way for the position occupied by the offending judge or for a similar judicial position, would regard as a question, then it is one whose

determination requires the exercise of judicial functions. But if it is one so clear that a judge qualified as aforesaid, would not regard it as a question, then it is one whose determination does not require the exercise of judicial functions. In the former case the judge is not liable. In the latter case, he is. To put in another way. If the question is one which can be regarded by a judge, qualified as above stated, as having two sides, then the judge is not liable for an erroneous decision. But if it be one which can not be regarded by such judge as having two sides, then the judge is liable for a wrong decision. Although it is admitted, as I do admit, that the Governor-General had and has no power or authority to expel domiciled aliens, it must, nevertheless, be freely conceded, and this is the vital and conclusive point in this case, that from his point of view there are two sides to that question. That such is the case is conclusively established by the fact that three judges of this court have already decided, after mature deliberation, that he actually has such powers. This being so, it becomes a real question, the determination of which requires the exercise of judicial functions. In such determination he is protected even though he errs. Whether or not the given question is such one as I have above described, that is, whether it is one which would be regarded by a judge, qualified in the average way for the position occupied by the offending judge or a similar judicial position, as having two sides, is always a question of law and not of fact. It is a condition established by the existing law. It is a matter not susceptible of proof. The court is required to take judicial notice of the law of the land. It can not be established by evidence. The condition, the state, of the law when the offending act was committed is fixed. It can not be changed by evidence. When the act is admitted, liability is a pure question of law. Even the motive which influenced or controlled the judge in his decision can not be proved. It is immaterial under the doctrine of Bradley vs. Fisher. He is not judged from his moral but from his legal relation to the question. The foregoing is an explanation, if one were needed, of the expression in my former opinion in this case, in which I made reference to the Governor-General acting "in the honest belief" that he had the authority to perform the acts complained of. By such expression I did not mean to call attention to the Governor-General subjectively. I did not mean to bring in issue his state of mind, morally or ethically, at the time he acted, nor the motive which impelled him. What was meant there is. Was the question which confronted him for solution one over which men qualified for that or a similar station would really differ; one which the average of man fit for that position would regard as a real question. In other words, Is it one which, from the viewpoint of a man ordinarily qualified for that position, has two sides? "Honestly," as used, referred to the nature of the question rather than the state of mind or motive of the Governor-General. The state of mind morally of a judge, the motives which induce him to at, are of no consequence in determining his liability. In the case of Bradley vs. Fisher, supra, cited in my former opinion as well as in this, the court says: Nor can this exemption of the judges from civil liability be affected by the motives with which their judicial acts are performed. The purity of their motives can not in this way be the subject of judicial inquiry. This was adjudged in the case of Floyd and Barker, reported by Coke, in 1608 (12 Coke, 25), where it was laid down that the judges of the realm could not be drawn in question for any supposed corruption impeaching the verity

of their records, except before the King himself, and it was observed that if they were required to answer otherwise, it would "tend to the scandal and subversion of all justice, and those who are the most sincere would not be free from continual calumniation's." The truth of this latter observation is manifest to all persons having much experience with judicial proceedings in the superior courts. Controversies involving not merely great pecuniary interest, but the liberty and character of the parties and, consequently exciting the deepest feelings, there is a great conflict in the evidence and great doubt as to the law which should govern their decision. It is this class of cases which imposes upon the judge the severest labor, and often create in his mind a painful sense of responsibility. Yet it is precisely in this class of cases that the losing party feels most keenly but the soundness of the decision in explanation of the action of the judge. Juts in proportion to the strength of his convictions of the correctness of his own view of the case is he apt to complain of the judgement to pass to the ascription of improper motives to the judge. When the controversy involves questions affecting large amounts of property or relates to a matter of general public concern, to touches the interest of numerous parties, the disappointment occasioned by an adverse decisions often finds vent in imputations of this character, and from the imperfection of human nature this is hardly a subject of wonder. If civil actions could be maintained in such cases against in his complaint that the acts of the judge were done with partiality, or maliciously, or corruptly, the protection essential to judicial independence would be entirely swept away. Few persons sufficiently irritated to institute an action against a judge for his judicial acts would hesitate to ascribe any character to the acts which would be essential to the maintenance of the action. If upon such allegations a judge could be compelled to answer in a civil action for his judicial acts, not only would his office be degraded and his usefulness destroyed, but he would be subjected for his protection to the necessity of preserving a complete record of all the evidence produced before him in every litigated case, and of the authorities cited and arguments presented, in order that he might be able to show to the judge before whom he might be summoned by the losing party and that judge perhaps one of an inferior jurisdiction that he had decided as he did with judicial integrity; and the second judge would be subjected to a similar burden, as he in his turn might also be held amenable by the losing party. Some just observations on this head by the late Chief Justice Shaw will be found in Pratt vs. Gardner (2 Cush., 68), and the point here was adjudged in the recent case of Fray vs. Blackburn (3 West and S., 576) by the Queen's Bench of England. One of the judges of that bench was sued for a judicial act, and on demurrer one of the objections taken to the declaration was that it was bad in not alleging malice. Judgment on the demurrer having passed for the defendant, the plaintiff applied for leave to amend his declaration by introducing an allegation of malice and corruption; but Mr. Justice Compton replied: "It is a principle of our law that no action will lie against a judge of one of the superior courts for a judicial act, though it be alleged to have been done maliciously and corruptly; therefore the proposed allegation would not make the declaration good. The public are deeply interested in this rule, which, indeed, exists for their benefit, and was established in order to secure the independence of the judges, and prevent them being harassed by the vexatious actions;" and the leave was refused. (Scott vs. Stansfield, L. R., 3 Exch., 220.)

In this country the judges of the superior courts of record are only responsible to the people, or the authorities constituted by the people, from whom they receive their commissions, for the manner in which they discharge the great thrusts of their office. In the exercise of the powers with which they are clothed as ministers of justice they act with partiality, or maliciously, or corruptly, or arbitrarily, or oppressively, they may be called to account by an impeachment and suspended or removed from office. In some States they may be thus suspended or removed without impeachment by a vote of the two houses of the legislature. In the case of Randall vs. Brigham (7 Wall., 523; 74 U. s., 285), decided by this court at the December term of 18 68, we had occasion to consider at some length the liability] of judicial officers to answer in a civil plaintiff had been removed by the defendant, who was one of the justices of the Superior Court of Massachusetts, from the bar of that State, and the action was brought for such removal, which was alleged in the declaration to have been made without lawful authority and wantonly, arbitrarily, and oppressively. In considering the questions presented, the court observed that it was a general principle, applicable to all judicial officers, that they were not liable to a civil action for any judicial act done by them within their jurisdiction; that with reference to judges of limited and inferior authority it had been held that they were protected only when they acted within jurisdiction; that if this were the case with respect to them, no such limitation existed with respect to judges of superior or general authority; that they were not liable in civil actions for their judicial acts, even when such acts were in excess of their jurisdiction, "unless, perhaps when the acts in excess of jurisdiction are done maliciously or corruptly." The qualifying words were inserted upon the suggestion that the previous language laid down the doctrine of judicial exemption from liability to civil actions in terms broader than was necessary for the case under consideration, and that if the language remained unqualified it would require an explanation of some apparently conflicting adjudications found in the reports. They were not intended as an expression of opinion that in the cases supposed such liability would exist, but to avoid the expression of a contrary doctrine. In the present case we have looked into the authorities and are clear, from them, as well as from the principle on which any exemption is maintained, that the qualifying words used were not necessary to a correct statement of the law, and that judges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts; even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly. Applying to the case at bar the analogy to which we have so far consistently adhered, it is necessary to conclude, from the principles asserted in the quotation, that the motives with which the illegal acts of the Governor-General were performed can not effect in any way his responsibility stated heretofore, the liability of the Governor-General is a question of law and not of fact. It depends entirely on the state of law, of that the court takes judicial notice without proof. The foregoing discussion is not a criticism of the case of Bradley vs. Fisher, so many times referred to. On the contrary, I am confident that this case, when properly viewed, is, as I have

heretofore stated, fully in accord with the considerations and conclusions indulged herein, and may reasonably, indeed, if the dictum therein contained authority for them. In that case the name of the plaintiff criminal branch of the supreme court of the District of Columbia by the judge thereof, the defendant in the action. The following was the order entered by the court: On the 2nd day of July last, during the progress of the trial of John H. Surat for the murder of Abraham Lincoln, immediately after the court had taken a recess until the following morning, as the presiding justice was descending from the bench, Joseph H. Bradley, esq., accosted him in a rude and insulting manner, charging the judge with having offered from the commencement of the trial. The judge disclaimed any intention of passing any insult whatever, and assured Mr. Bradley that he entertained for him no other feelings than those of respect. Mr. Bradley, so far from accepting this explanation or disclaimer threatened the judge with personal chastisement. No court can administer justice or live if its judges are to be threatened with personal chastisement on all occasions whenever the irascibility of counsel may be excited by imaginary insult. The offense of Mr. Bradley is one which even his years will not palliate. It can not be overlooked or go unpunished. It is therefore, ordered that his name be stricken from the roll of attorneys practicing in this court. The suit was founded on this order, the plaintiff alleging that the defendant "falsely, fraudulently, corruptly, and maliciously intended thereby to give color of jurisdiction" for making order referred to, and that he acted unlawfully, wrongfully, unjustly, and oppressively in making such order. The action was one against the judge for damages occasioned by such act. In deciding the case the court said: In other words, it sets up that the order for the entry of which the suit is brought was a judicial act, done by the defendant as the presiding justice of a court of general criminal jurisdiction. If such were the character of the act, and the jurisdiction of the court, the defendant can not be subjected to responsibility for it in a civil action, however erroneous the act may have been, and however injurious in its consequences it may have proved to the plaintiff. For it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehensions of personal consequences to himself. Liability to answer every one who might himself aggrieved by the action of the judge would be inconsistent with the possession of his freedom, and would destroy that independence without which no judiciary can be either respectable or useful. As observed by a distinguished English judge, it would establish the weakness of judicial authority in a degrading responsibility. The criminal court of the District, as a court of general criminal jurisdiction, possessed the power to strike the name of the plaintiff from its rolls as a practicing attorney. This power of removal from the bar is possessed by all court which have authority to admit attorneys to practice.

The criminal court of the District erred in not citing the plaintiff, before making the order striking his name from the roll of its attorneys, to show cause why such order should not be made for the offensive language and conduct stated, and affording him opportunity for explanation, or defense, or apology. But this erroneous manner in which its jurisdiction was exercised, however it may have affected the validity of the act, did not make the act any less a judicial act; nor did it render the defendant liable to answer in damages for it at the suit of the plaintiff, as though the court had proceeded without having any jurisdiction whatever over its attorneys. A distinction must be here observed between the excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter. Where there is clearly no jurisdiction over the subject-matter any authority exercised is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known to the judge, no excuse is permissible, But where jurisdiction over the subject-matter is invested by law in the judge, or in the court which he holds, the manner and extent in which the jurisdiction shall be exercised are generally as much questions for his determination as any other questions involved in the case, although upon the correctness of his determination in these particulars the validity of his judgment may depend. Thus, if a probate court, invested only with authority over wills and the settlement of estates of deceased persons should proceed to try parties for public offenses, jurisdiction over the subject of offenses being entirely wanting in the court, and this being necessarily known to its judge, his commission would afford no protection to him in the exercise of the usurped authority. But if, on the other hand, a judge of a criminal court, invested with general criminal jurisdiction over offenses committed within a certain district, should hold a particular act to be a public offense, which is not by the law made an offense, and proceed to the arrest and trial of a party charged with such act, or should sentence a party convicted to a greater punishment than that authorized by the law upon its proper construction, no personal liability to civil action for such acts would attach to the judge, although those acts would be in excess of his jurisdiction, or of the jurisdiction of the court held by him, whenever his general jurisdiction over the subject-matter is invoked. Indeed some of the most difficult and embarrassing questions which a judicial officer is called upon to consider and determine relate to his jurisdiction, or that of the court held by him, or the manner in which the jurisdiction shall be exercised. And the same principle of exemption from liability which obtains for errors committed in the ordinary prosecution of a suit where there is jurisdiction of both subject and person applies in cases of this kind, and for the same reasons. It must be noted in the first, place, that, inasmuch as the court, in that case, was found to have had full jurisdiction of the person of the plaintiff and the subject-matter before him, the court erring simply in his method of procedure, the question of the civil liability of a judge for acts performed with complete lack of jurisdiction did not arise. In the second place, especial and particular attention is called to certain expressions in the decision which occur in that portion relative to the liability of a judge acting in complete absence of jurisdiction: "Where there is clearly no jurisdiction over the subject-matter any authority is a usurped authority, and for the exercise of such authority, when the want of jurisdiction is known

to the judge, no excuse is permissible." Again: "Thus if a probate court, invested only with authority over wills and the settlement of estates of deceased persons should try parties for public offenses, jurisdiction over the subject of offenses being entirely wanting in the court, and this being necessarily known to its judge, his commission would afford no protection to him in the exercise of the usurped authority." These portions of the sentence quoted which I have italicized contain the essence of the whole matter of judicial liability where there is a lack or failure of jurisdiction. I am of the opinion that those expressions indicate necessarily and decisively that the principle which I have herein laid down as the one logically and inevitably governing judicial liability is the true and the only one whose results are not absurdities in many cases. Otherwise those expressions are wholly meaningless and the suggestions they contain valueless. If the jurisdiction is the real test of liability, if a judge acting wholly and completely without jurisdiction is necessarily liable, as contend text writers and courts generally, what difference does it make whether the want of jurisdiction "clearly" appear or not. If entire absence of jurisdiction is decisive, what does it signify whether or not "the want of jurisdiction is known to the judge." If the crucial test is jurisdiction, what means the phrase "and this (entire want of jurisdiction) being necessarily known to its judge?" If these expressions mean nothing, then there is an end of the matter so far as the case we are discussing is concerned. But if they mean anything at all commensurate with the signification which would ordinarily be given to the words which compose them, then they destroy utterly the doctrine that jurisdiction is the test of judicial liability. The word "clearly" refers either to the judge himself or to some one or something apart from him. If to the judge, then the want of jurisdiction must be clear to him before he can be liable. But if his want of jurisdiction is clear to him and he still goes forward with the cause, he must be actuated by a motive other than his belief that he is within his jurisdiction. If, therefore, "clearly" refers to the judge himself, to his subjective condition, then it can have no relation or materiality except to disclose the motive which removed him. But motive has been expressly held by this very case to be wholly immaterial in determining a judge's civil liability. Motive is merely a state of mind. If the motive can have no influence on the matter, then it is of no consequence whatever what the state of mind may be. This is in perfect accord with the universal doctrine that a one man's rights can not be made to depend on another man's mind. If A illegally injures B, B's right of action can not be dependent on A's state of mind when he caused the injury. Such state of mind might have some influence on the amount of damages or the kind of action to be brought, but, never on the right of action. So the right of action against a judge never can be made to depend on the state of mind of the judge who causes the injury, but solely upon the nature of the question determined. Rights are children of the law, not of man's fancy. If, however, the word "clearly" refers to some one or something apart from the judge himself, then the expression in which it occurs has meaning and significance. If the want of jurisdiction is so "clear," not to that judge in particular, but to a judge having the average qualifications for the position occupied by the offending judge, or a similar judicial position, that whether or not there is jurisdiction is not a question at all, then we can understand what was intended by the use of the word "clearly." The whole doctrine that the civil liability of a judge depends upon jurisdiction alone, as stated by text writers and enforced by most courts, is utterly at variance with the conception that the state of mind of the offending judge should have any influence on his liability. Moreover, the very case I am discussing holds clearly that public policy requires that

the motives of a judge in deciding a cause, his state of mind accompanying in determining his liability. We find in that case the following: Yet it is precisely in this class of cases that the losing party feels most keenly the decision against him, and most readily accepts anything but the soundness of the decision in explanation of the action of the judge. Just in proportion to the strength of his conviction of the correctness of his own view of the case is he apt to complaint of the judgment against him, and from complaints of the judgment to pass to the ascription of improper motives to the judge. When the controversy involves questions affecting large amounts of property or relates to a matter of general public concern, touches the interests of numerous parties, the disappointment occasioned by an adverse decision often finds vent in imputations of this character, and from the imperfections of human nature this is hardly a subject of wonder. If civil actions could be maintained in such cases against the judge, because the losing party should see fit to allege in his complaint that the acts of the judge were done with partiality, or maliciously, or corruptly, the protection essential to judicial independence would be entirely swept away. Few persons sufficiently irritated to institute an action against a judge for his judicial acts would hesitate to ascribe any character to the acts which would be essential to the maintenance of the action. Motive, as he used, can not be restricted to a state of mind morally wrong. It includes also a state of mind legally wrong. A judge, knowing full well that he is absolutely without jurisdiction, who, in spite of the parties in complete violation of the law, may be impelled thus to violate the law by an honest belief that he is thereby doing justice between the parties; but his motives are nevertheless tainted with illegality, and, even though they are not morally wrong, they fall within the definition of "motives" as that word is used in the decision I am discussing. But even though I be wrong in that contention, it nevertheless is certain that if a corrupt motive can not be influential in determining the liability of a judge, one not corrupt can not be. It, therefore, seems to me clear that the word "clearly" as used in the case under discussion does not refer to the state of mind of the offending judge, but rather to the nature of the question which he determines; not to the way the judge himself views the question, but to the way it would be viewed by the standard judge, the average judge, as I have heretofore stated. What I have said of the word "clearly," as it appears in the case under discussion, is equally applicable to the other expressions quoted therefrom. The phrase "when the want of jurisdiction is known to the judge" presents precisely the same questions. As I have said, the very case in which that expressions occurs to holds unequivocally that the motives which move the judge to action are not permitted to weigh for or against him, even though they are corrupt and immoral. It can not be possible, then, that any other motive, especially an honest one, can be permitted to affect his case. The conclusion is, therefore, unavoidable that the phrase "when the want of jurisdiction is known to the judge" does not refer to the actual state of the mind of the judge but to the state of mind which he ought to be in and which he would have been in if he had taken into consideration properly the nature of the question before him. In other words, he will be deemed to have been in the same state of mind as the ideal, the standard judge of whom we have spoken would have been had he had the same question before him. We have here somewhat the idea which is predominant in the theory of negligence embodied in the question, "Did he use the care

which an ordinary careful and prudent an would have used under the same circumstances?" This means simply that everything depends, in the last analysis, on the nature of the question with which the judge was dealing when he committed the error made the basis of the action against him. Lastly, as to the phrase " and this [the want of jurisdiction] being necessarily known to the judge." The word "necessarily" seems to me to be absolutely conclusive as to the intention of the Supreme Court of the] United States in the case under discussion relative to the doctrine of judicial liability in cases involving a failure or want of jurisdiction. This expression, it will be remembered, was used in connection with the illustration of a probate court assuming criminal jurisdiction. Why, in such illustration, should the want of jurisdiction be "necessarily" known to the judge? No reason can be given except that it was a perfectly plain case, and, in consequence, he was bound to know it, whether he actually did or not. In other words, the question which he was called upon to decide was so plain and so clear that the standard judge would not have regarded it as a question at all; i.e., there was really only one side to it it could be decided in only one way. Therefore, the judge was bound to know it; it was necessarily known to him. The nature of the question was such that he was estopped from denying knowledge. Thus are we brought back again to the proposition I have so often asserted, that the liability of the judge depends wholly upon the nature of the question in determination of which the error was made. It appears to me to be evident, therefore, that the case of Bradley vs. Fisher is an authority, so far as dictum can be such, in support of the doctrine I am advocating, both affirmatively and negatively. Affirmatively, because it asserts the doctrine that the nature of the question controls. Negatively, because it also asserts that the motives which induced the judge to the error which is the basis of his liability are wholly immaterial in establishing that liability. This necessarily means, as we have already seen, that the state of mind of the judge by which the error was induced, of whatever kind it may be, good, bad, or indifferent, is entirely without significance as an element of his liability. This is all I set out to establish. (See Bishop Non-Contract Law, par. 783; Root vs. Ross, 72 Northwestern, 1022; Grove vs. Van Duyn, 15 Vroom, 654.) Section 9 of the Code of Civil Procedure relating to the liability of judges is simple declaratory of the law as heretofore set forth. The discussion up to this point has proceeded upon the theory that the Governor-General acted wholly without power, authority, or jurisdiction. I here note by way of suggestion merely that it should be remembered that the Governor-General, in performing the acts complained of, was operating in a field distinctively his own, namely, that of the execution of the law. Of that branch of the government he is the head. Over that field has general authority and jurisdiction. Taking for the moment the position of those who maintain that there is difference between excess of jurisdiction and an entire failure of jurisdiction, may not his act of expulsion have been in excess of jurisdiction rather than in complete failure thereof? I do not now stop to argue this question, inasmuch as I have already presented the matter fully from the other point of view. I have treated thus at length the liability of judges for analogical purposes, founding myself not only upon the reason and principle involved, but also upon the case of Spalding vs. Vilas (161 U.

S., 483), in which the opinion discussed at length the civil liability of judges, using the principles there applied of the defendant, who was postmaster-general, and who had been sued for damages alleged to have been caused by certain acts performed by him in the execution of what he believed to be the duties of his office. This is precisely what I have done in the case at bar. So far I have discussed the liability of the Governor-General for the acts complained of, viewing the acts as springing from the determination of questions judicial in their nature. I now propose to treat the question at bar as arising from determination made and acts performed by the Governor-General in discharging the duties laid upon him as Chief Executive of the Government. The immunity of the judges from personal liability for damages resulting from their wrongful acts while in the discharge of the duties of the office rests wholly in public policy. The reasons for such immunity are nowhere better stated than in Mr. Cooley's work on Torts. He says: 1. The necessary result of the liability would be to occupy the judge's time and mind with the defense of his own interests, when he should be giving them up wholly to his public duties, thereby defeating, to some extent, the very purpose for which his office was created. 2. The effect of putting the judge on his defense as a wrongdoer necessarily is to lower the estimation in which his office is held by the public, and any adjudication against him lessens the weight of his subsequent decisions. This of itself is a serious evil, affecting the whole community; for the confidence and respect of the people for the government will always repose most securely on the judicial authority when it is esteemed, and must always be unstable and unreliable when this is not respected. If the judiciary is unjustly assailed in the public press, the wise judge refuses to put himself in position of defendant by responding, but he leaves the tempest to rage an awakened public sentiments silences his detractors. But if he is forced upon his defense, as was well said in an early case, it would tend to the scandal and subversion of all justice, and those who are most sincere would not be free from continual calumniation's. 3. The civil responsibility of the judge would often be an incentive to dishonest instead of honest judgments, and would invite him to consult public opinion and public prejudices,] when he ought to be wholly above and uninfluenced by them. As every suit against him would be to some extent an appeal to popular feeling, a judge, caring specially for his own protection, rather than for the cause of justice, could not well resist a leaning adverse to the parties against whom the popular passion or prejudice for the time being was running, and he would thus become a prosecutor in the cases where he ought to be protector, and might count with confidence on escaping responsibility in the very cases in which he ought to be punished. Of what avail, for example, could the civil liability of the judge have been to the victims of the brutality of Jeffreys if, while he was at the height of his power and influence and was wreaking his brutal passions upon them amidst the applause of crowded court rooms, these victims had demanded redress against him at the hands of any other court and jury of the realm?

4. Such civil responsibility would constitute a serious obstruction to justice, in that it would render essential a large increase in the judicial force, not only as it would multiply litigation, but as it would open each case to endless controversy. This of itself would be an incalculable evil. The interest of the public in general rules and in settled order is vastly greater than in any results which only affect individual; and it is more important that their action shall tend to the peace and quiet of society than that, at the expense of order, and after many suits, they shall finally punish an officer with damages for his misconduct. And it is to be borne in mind that if one judge can be tried for his judgment, the one who presides on the trial may also be tried for his, and thus the process may go on until it becomes intolerable. 5. But where the judge is really deserving of condemnation a prosecution at the instance of the State is a much more effectual method of bringing him to account than a private suit. A want of integrity, a failure to apply his judgment to the case before him, a reckless or malicious disposition to delay or defeat justice may exist and be perfectly capable of being shown, and yet not be made so apparent by the facts of any particular case that in a trial confined to those fact he would be condemned. It may require the facts of many cases to established the fault; it may be necessary to show the official action for years. Where an officer is impeached, the whole official career is or may be gone into; in that case one delinquency after another is perhaps shown each tends to characterize the other, and the whole will enable the triers to form a just opinion of the official integrity. But in a private suit the party would be confined to the facts of his own case. It is against inflexible rules that one man should be allowed to base his recovery for his own benefit on a wrong done to another; and could it be permitted, the person first wronged, and whose right to redress would be as complete as any, would lose this advantage by the very fact that he stood first in the line of injured persons. Whenever, therefore, the State confers judicial powers upon an individual, it confers them with full immunity from private suits. In effect, the State says to the officers that these duties are confided to his judgment; that he is to exercise his judgment fully, freely, and without favor, and he may exercise it without fear; that the duties concern individuals, but they concern more especially of the welfare of the State and the peace and happiness of society; that if he shall fail in the faithful discharge of them he shall be called to account as a criminal; but that in order that he may not be annoyed, disturbed, and impeded in the performance of these high functions, a dissatisfied individual shall not be suffered to a call in question his official action in a suit for damages. This is what the State, speaking by the month of common law says to the judicial officer. (Cooley on Torts, 2nd ed., pp. 475-478.) The following cases are also in point: Bradley vs. Fisher (13 Wall., 335), Spalding vs. Vilas (161 U. S., 483), Pratt vs. Gardner (2 Cush., 63), Yates vs. Lansing (5 Johns., 282, 291), Fray vs. Blackburn (3 B. and S., 576), Scott vs. Stansfields (L. R., 3 Exch., 220). It needs no use of imagination to permit the assertion that the execution of the law is a matter fully as important as the creation or determination of the law. One branch of the government is, largely speaking, as necessary and important as the other. The system of representative

government is founded in that proposition. The three departments are not only coordinate; they are co-equal; they are coimportant. Whatever affects adversely the efficiency of one affects adversely the efficiency of all. One is quite useless without the other. The legislature is supremer than a king in the making of laws, but if they remain unexecuted they are but dry thunder that rolls and growls along the sky but disappoints the husbandman in a thousand thirsty fields. The judiciary is an invincible and irresistible giant in promulgating its decrees, but a day-old infant in their execution. Whatever impedes or prevents the free and unconstrained activity of a governmental department, within its proper limits, tends to evil results. The civil responsibility of the chief executive would produce in him an inevitable tendency, insidious in character, constant in pressure, certain in results, to protect himself by following lines of least resistance and to temper the force of his executive arm in places and upon occasions where there was strong opposition, either by powerful and influential persons or by great federated interests, and where public prejudice was intense, active, and threatening. Personal interest is a force which in the long run is apt to drive as it will. Reputation, pride, riches, family, home, all endangered in many respects by personal responsibility, are influences which grip and cling with threw of steel and exert a power upon men almost incalculable in its extent, almost certain in its results. To allow these well-nigh irresistible forces to exercise to the full their effects upon the coordinate branches of the government, through men who, for the moment, are, in a sense, the state, is to drive a blow at the very vitals of impartial government. Anyone may bring an action. It needs no merits, no real grounds, no just cause, no expectation of winning, to commence suit. Any person who feels himself aggrieved by any action of the chief executive, whether he have the slightest grounds therefor or not, may begin suit. Or, not particularly desiring to bring an action upon his own initiative, he may be induced thereto by any evil-disposed person, any political rival, party antagonist, or personal enemy of the chief executive, or by any person desiring for any reason to see his administration hampered and brought into contempt by public display of the alleged inefficiency of the chief functionary. For the purposes in view, it is almost immaterial whether or not the action succeeds. Substantially the same results are attained by commencing the action and carrying it haltingly to its final determination. A person who brings an action for the reasons mentioned, or his inducers, will always be fertile and conscienceless in the method of conducting it. Every means will be employed to make it sensational. Every effort will be used to bring the salient features of the plaintiff's claim before the public. Opposition papers will deem it strategy to lend their ready columns to everything that reflects adversely on the defendant. Startling headlines will appear in every issue inviting all people to read the charges against their chief executive. Occasions for delay will be found or made. The case will drag along through months of calumny, vituperation, and sensation until the people, nauseated and weary of the noise and the spectacle, cry for riddance. This is precisely the result desired by the plaintiff. The matter can be stopped and quitted only by the removal of the offending official. This would usually follow in one way or another. Moreover, the bringing of an action against him because of his act in relation to a given matter would naturally prevent his taking further or other steps against other person similarly circumstance until the final determination of the pending action. Respect for law and the

judiciary, as well as his own protection, would probably require this. No words are necessary to indicate the intolerable condition thus resulting from general civil responsibility. Action upon important matters of state delayed; the time and substance of the chief executive spent in wrangling litigation; disrespect engendered for the person of one of the highest officials of the State and for the office he occupies; a tendency to unrest and disorder; resulting, in a way, in a distrust as to the integrity of government itself. Although the three departments of the government are coordinate and equal of importance in the administration of governmental affairs, nevertheless, it is generally recognized that, in many ways, and at least popularly, the chief executive is the first man in the state. He is regarded by the public generally as the official who most nearly represents the people, who most perfectly epitomozes the government and the state. An assault upon him is, popularly speaking at least, an assault upon the people. An offense against the state. Generally speaking, the government is good or bad as he is good or bad. To degrade and humiliate him is to degrade and humiliate the government. To put him on trial as a wrongdoer is to put on trial government itself. To bring him publicly to the bar is to breed in the public mind and unwholesome disrespect not only for his person but for his office as well; while a decision against him is, popularly speaking acts as unworthy of consideration, but also a partial demonstration of the inefficiency of government itself. As the state may not be held liable, and by such process its sovereignty weakened, without express provision of law, so the person most perfectly its incarnation should not be subjected civilly to personal liability for damages resulting from the performance of official acts except by law equally express. While the three coordinate governmental departments are mutually dependent, each being unable to perform its functions without the other, they are, nevertheless, paradoxical as it may seem, wholly independent of each other, except for what is known as the checks and balances of government. That is to say, one department may not control or interfere in any way with another in the exercise of its functions. This, of course, is fundamental. The legislature may neither dictate the courts what judgments they shall render, nor modify, alter or set aside such judgments after they have been promulgated. The legislature can not be permitted to override executive action nor interfere with the performance of those duties laid by the constitution upon the chief executive. In the same way, the courts have no power to control or interfere in any way with the legislature in the making of laws or in taking or refraining from taking any action whatever, however clear may be its constitutional duty to take or not to take such action. The legislature may refuse to pass the laws which are absolutely necessary for the preservation of society, thus clearly and openly violating and disregarding the trust reposed in it, and still neither the judicial nor the executive branch can interfere. The courts may openly and flagrantly violate their duty, render the most partial, unjust, illegal, and even corrupt judgments, thereby openly prostituting their proper functions, yet neither the legislature nor the executive department can interfere. Moreover, except as hereinbefore indicated, neither the members of the legislature nor the judiciary are subject to personal liability for damages either by their failure to perform their duties or for their open defiance of the plain command of the constitution to perform them. The power to interfere is the power to control. The power to control is the power to abrogate. Upon what reasons, then, may we base the right of the courts to interfere with the executive

branch of the government by taking cognizance of a personal action against the chief executive for damages resulting from an official act; for, to take jurisdiction of such an action is one of the surest methods of controlling his action. We have already seen the dangers which lurk in the unhampered privilege of personal suit against the chief executive from the viewpoint of the effects which it would have on him personally and, therefore, on the general enforcement of the law. Another question closely akin to this is that of the effect on the independence of that branch of the government. In that argument we touched the results of such responsibility from the viewpoint of the influence wielded by the person who complained by suit against the act of the chief executive. Here we refer to it from the standpoint of the force, the power, the instrumentality by which the complaint is made effective. Every argument advanced against the civil responsibility of the chief executive founded in the beneful results to the public welfare which such responsibility would inevitably carry, is applicable to the proposition that the court may take cognizance of personal actions against him for damages resulting from his official acts. If the courts may require the chief executive to pay a sum of money every time they believe he has committed an error in the discharge of his official duty which prejudices any citizen, they hold such a grip upon the vitals of the executive branch of the government that they may swerve it from the even tenor of its course or thwart altogether the purpose of its creation. If such responsibility would prove harmful by reason of the influence thus given to persons or interests involved in the execution of the law, how much more disastrous would be the results of such responsibility which would normally flow from the power which the courts might wield, that power which alone makes effective the influence of the persons or interest referred to. not only determining their remedy and adjudicating their rights, but also fixing the amount of damages which the infringement of those rights has occasioned. That the courts may declare a law passed by the legislature unconstitutional and void, or an act of the executive unauthorized and illegal; or that the legislature may curtail within limits the jurisdiction and power of the courts, or restrict, in a measure, the scope of executive action; or that the executive may, by his veto, render null and ineffective the acts of legislature and thus effectually thwart the purposes of the majority, is no reply to the argument presented. These are merely the checks and balances made by the people through the constitution inherent in the form of government for its preservation as an effective institution. Without them the government would collapse like a house of cards. In spite of these checks and balances, if not by reason of them, the fundamental departments of the government are independent of each other in the truest sense of the word. The quality of government consists in their remaining so. It must not be forgotten that there is a great difference, intrinsically and in result, between the power to declare the executed acts of the chief executive illegal and void, and the power to hold him personally responsible in damages resulting from such acts. In the one case the results are. in a real sense, entirely impersonal. No evil to him directly flows from such acts. He is secure in his person and estate. In the other, he is directly involved personally in a high and effective responsibility. His person and estate are alike in danger. In the one case he acts freely and fearlessly without fear of consequences. In the other he proceeds with fear and trembling, not knowing, and being wholly unable to know, when he will be called upon to pay heavy damages to some person whom he has unconsciously injured. The principle of nonliability, as herein enunciated, does not mean that the judiciary has no authority to touch the acts of the Governor-General; that he may, under cover of his office, do

what he will, unimpeded and restrained. Such a construction would mean that tyranny, under the guise of the execution of the law, could walk defiantly abroad, destroying rights of person and of property, wholly free from interference of courts or legislatures. This does not mean, either, that a person injured by the executive authority by an act unjustifiable under the law has no remedy, but must submit in silence. On the contrary, it means, simply, that the Governor-General, like the judges of the courts and the members of the Legislature, may not be personally mulcted in civil damages for the consequences of an executed in the performance of his official duties. The judiciary has full power to, and will, when the matter is properly presented to it and the occasion justly warrants it, declare an act of the Governor-General illegal and void and place as nearly as possible in status quo any person who has been deprived of his liberty or his property by such act. This remedy is assured every person, however humble or of whatever country, when his personal or property rights have been invaded, even by the highest authority of the state. The thing which the judiciary can not do is to mulct the Governor-General personally in damages which result from the performance of his official duty, any more than it can a member of the Philippine Commission or the Philippine Assembly. Public policy forbids it. Neither does this principle of nonliability mean that the chief executive may not be personally sued at all in relation to acts which he claims to perform as such official. On the contrary, it clearly appears from the discussion heretofore had, particularly that portion which touched the liability of judges and drew an analogy between such liability and that of the Governor-General, that the latter is liable when he acts in a case so plainly outside of his power and authority that he can not be said to have exercised discretion in determining whether or not he had the right to act. What is held here is that he will be protected from personal liability for damages not only when he acts within his authority, but also when he is without authority, provided he actually used discretion and judgment, that is, the judicial faculty, in determining whether he had authority to act or not. In other words, he is entitled to protection in determining the question of his authority. If he decide wrongly, he is still protected provided the question of his authority was one over which two men, reasonably qualified for that position, might honestly differ; but he is not protected if the lack of authority to act is so plain that two such men could not honestly differ over its determination. In such a case, he acts, not as Governor-General, but as a private individual, and, as such, must answer for the consequences of his act. The attorneys for the defendant in the action before us earnestly contend that even though the Governor-General is not liable, his agents, Harding and Trowbridge, are. In support of that contention they cite numerous authorities. One of those is Little vs. Barreme (2 Cranch, 170). This was a case in which obeyed certain instructions emanating from the President of the United States which were not strictly warranted by the law under which said instructions were given; and had seized a ship not subject to seizure under the law. The attorneys for the defendant cite that portion of the opinion of Mr. Chief Justice Marshall in that case which reads as follows: These orders given by the executive under the construction of the Act of Congress made by the department to which its execution was assigned, enjoined the seizure of American vessels sailing from a French port. Is the officer who obeys them liable for damages sustained by this misconstruction of the Act, or will his orders excuse him? If his instructions afford him no protection, then the law must take its course, and he must pay such damages as are legally awarded against him; if they excuse an act not otherwise

excusable, it would then be necessary to inquire whether this is a case in which the probable cause which existed to induce a suspicion that the vessel was American, would excuse the captor from damages when the vessel appeared in fact to be neutral. I confess the first bias of my mind was very strong in favor of the opinion that though the instructions of the executive could not give a right, they might yet excuse from damages. I was much inclined to think that a distinction ought to be taken between the acts of civil and those of military officers; and between proceedings within the body of the country and those on the high seas. That implicit obedience which military men usually pay to the orders of their superiors which indeed is indispensably necessary to every military system, appeared to me strongly to imply the principle that those orders, if not to perform a prohibited act, ought to justify the person whose general duty it is to obey them, and who is placed by the laws of his country in a situation which in general requires, that he should obey them. I was strongly inclined to think that where, in consequence of orders from the legitimate authority, a vessel is seized with pure intention, the claim of the injured party for damages would be against that government from which the orders proceeded, and would be a proper subject for negotiation. But I have been convinced that I was mistaken, and I have receded from this first opinion, I acquiesce in that of my brethren, which is, that the instructions can not change the nature of the transaction, or legalize an act which, without those instructions, would have been a plain trespass. The case cited is distinguished from the case at bar in that in that case the duty to exercise judgment as to what vessels should be seized was placed, by express provisions of the law, upon the commander of the American warship. No duty whatever was placed upon the President of the United States. Under the law he might, if he chose, give instructions to commanders of American war vessels to subject to examination any ship or vessel of the United Stated on the high seas which there might be reason to suspect was engaged in commerce contrary to the tenor of the law; but the duty of action, using judgment and discretion as to whether or not a given ship was susceptible of seizure under said law, was placed wholly upon the commander o the vessel. This appears from reading the Act. Section 5 thereof provides as follows: That it shall be lawful for the President of the United States to give instructions to the commanders of the public armed ships of the United States to stop and examine any ship or vessel of the United States on the high seas which there may be reason to suspect to be engaged in any traffic or commerce contrary to the true tenor hereof; and if, upon examination, it shall appear that such ship or vessel is bound sailing to any port or place within the territory of the French Republic, or her dependencies, contrary to the intent of this Act, it shall be the duty of the commander of such public armed vessel to seize every ship or vessel engaged in such illicit commerce, and send the same to the nearest port in the United States; and every such ship or vessel, thus bound or sailing to any such port or place, shall, upon due proof thereof, be liable to the like penalties and forfeitures as are provided in and by the first section of this Act. Under the law as quoted, the commander was acting for himself, upon his own responsibility. He has no authority whatever from the President of the United States to act in a given way, or at a particular time, or upon a given ship, or upon a given set of facts. He was controlled entirely by

the provisions of the law, not by the orders or instructions of the President. The source of his authority was the Act, not the President. He was acting for himself, as principal, upon whom lay all of the obligation and all of the responsibility and whose duties were clearly specified in the Act, and not as agent or servant of the President. He was acting in the performance of his own duty, and not in the performance of a duty laid upon the President of the United States. In the case at bar no duty whatever was laid upon Harding or Trowbridge. The only duty, if there was a duty connection with the act performed, was laid upon the Governor-General personally. If the law was as the supposed it to be, it was his duty and not their duty which they were performing. They acted not as principals upon whom an obligation was directly or indirectly laid by law. They were at the time merely the hands of the Governor-General. The case of Trace vs. Swartwout (10 Peters, 80), is distinguishable upon the same grounds. In the case of Marbury vs. Madison (1 Cranch, 137), the court said (p. 164): By the constitution of the United States the President is invested with certain important political powers, in the exercise of which he is use to his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority, and in conformity with his orders. In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political: they respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive. The application of this remark will be received, by adverting to the Act of Congress for establishing the department of foreign affairs. This officer, as his duties were prescribed by that Act, is to conform precisely to the will of the President: he is the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can never be examinable by the courts. But when the legislature proceeds to impose on that officer other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts; he is so far his conduct; and can not, at his discretion, sport away the vested rights of others. I do not discuss here the other citations made by the attorneys for the defendant for the reason that those authorities exclusively to the liability of executive officers of the Government occupying subordinate positions, who were creatures of the legislature and not of the constitution, and whose duties are specified by the law under which they acted and were by nature different from those laid upon the chief executive. As we have distinctly stated heretofore, the rule of liability, herein set forth, applicable to the chief executive is not applied in this opinion to those occupying subordinate positions. The principle of the nonliability of the chief executive rests in public policy. It is not held in this case that public policy reaches persons other than those who, in the highest sense, constitute the coordinate departments of the government. That question is not involved and is not discussed.

I have looked in vain for any logical reason which requires us to hold Harding and Trowbridge liable when the person whose act they were in reality performing is himself free from responsibility. Trent, J., concurs.