1.

SANIDAD v. COMELEC existence, the length of the period for tile exercise by the President of
his present powers.1
G.R. No. L-44640 October 12, 1976
Twenty days after or on September 22, 1976, the President issued
PABLO C. SANIDAD and PABLITO V. SANIDAD, petitioner, another related decree, Presidential Decree No. 1031, amending the
vs. previous Presidential Decree No. 991, by declaring the provisions of
HONORABLE COMMISSION ON ELECTIONS and HONORABLE presidential Decree No. 229 providing for the manner of voting and
NATIONAL TREASURER, respondents. canvass of votes in "barangays" (Citizens Assemblies) applicable to the
national referendum-plebiscite of October 16, 1976. Quite relevantly,
G.R. No. L-44684. October 12,1976 Presidential Decree No. 1031 repealed Section 4, of Presidential
Decree No. 991, the full text of which (Section 4) is quoted in the
VICENTE M. GUZMAN, petitioner, footnote below. 2
vs.
COMMISSION ELECTIONS, respondent. On the same date of September 22, 1976, the President issued
Presidential Decree No. 1033, stating the questions to be submitted to
G.R. No. L-44714. October 12,1976 the people in the referendum-plebiscite on October 16, 1976. The
Decree recites in its "whereas" clauses that the people's continued
RAUL M. GONZALES, RAUL T. GONZALES, JR., and ALFREDO opposition to the convening of the National Assembly evinces their
SALAPANTAN, petitioners, desire to have such body abolished and replaced thru a constitutional
vs. amendment, providing for a legislative body, which will be submitted
HONORABLE COMMISSION ON SELECTIONS and HONORABLE directly to the people in the referendum-plebiscite of October 16.
NATIONAL TREASURER, respondents.
The questions ask, to wit:
MARTIN, J,:
(1) Do you want martial law to be continued?
The capital question raised in these prohibition suits with preliminary
injunction relates to the power of the incumbent President of the (2) Whether or not you want martial law to be continued, do you
Philippines to propose amendments to the present Constitution in the approve the following amendments to the Constitution? For the
absence of the interim National Assembly which has not been purpose of the second question, the referendum shall have the effect
convened. of a plebiscite within the contemplation of Section 2 of Article XVI of
the Constitution.
On September 2, 1976, President Ferdinand E. Marcos issued
Presidential Decree No. 991 calling for a national referendum on PROPOSED AMENDMENTS:
October 16, 1976 for the Citizens Assemblies ("barangays") to resolve,
among other things, the issues of martial law, the I . assembly, its 1. There shall be, in lieu of the interim National Assembly, an
replacement, the powers of such replacement, the period of its interim Batasang Pambansa. Members of the interim Batasang
Pambansa which shall not be more than 120, unless otherwise a Deputy Prime Minister or as many Deputy Prime Ministers as he may
provided by law, shall include the incumbent President of the deem necessary.
Philippines, representatives elected from the different regions of the
nation, those who shall not be less than eighteen years of age elected 5. The incumbent President shall continue to exercise legislative
by their respective sectors, and those chosen by the incumbent powers until martial law shall have been lifted.
President from the members of the Cabinet. Regional representatives
shall be apportioned among the regions in accordance with the 6. Whenever in the judgment of the President (Prime Minister),
number of their respective inhabitants and on the basis of a uniform there exists a grave emergency or a threat or imminence thereof, or
and progressive ratio while the sectors shall be determined by law. The whenever the interim Batasang Pambansa or the regular National
number of representatives from each region or sector and the, manner Assembly fails or is unable to act adequately on any matter for any
of their election shall be prescribed and regulated by law. reason that in his judgment requires immediate action, he may, in
order to meet the exigency, issue the necessary decrees, orders or
2. The interim Batasang Pambansa shall have the same powers letters of instructions, which shall form part of the law of the land.
and its members shall have the same functions, responsibilities, rights,
privileges, and disqualifications as the interim National Assembly and 7. The barangays and sanggunians shall continue as presently
the regular National Assembly and the members thereof. However, it constituted but their functions, powers, and composition may be
shall not exercise the power provided in Article VIII, Section 14(l) of the altered by law.
Constitution.
Referenda conducted thru the barangays and under the Supervision of
3. The incumbent President of the Philippines shall, within 30 days the Commission on Elections may be called at any time the government
from the election and selection of the members, convene the interim deems it necessary to ascertain the will of the people regarding any
Batasang Pambansa and preside over its sessions until the Speaker important matter whether of national or local interest.
shall have been elected. The incumbent President of the Philippines
shall be the Prime Minister and he shall continue to exercise all his 8. All provisions of this Constitution not inconsistent with any of
powers even after the interim Batasang Pambansa is organized and these amendments shall continue in full force and effect.
ready to discharge its functions and likewise he shall continue to
exercise his powers and prerogatives under the nineteen hundred and 9. These amendments shall take effect after the incumbent
thirty five. Constitution and the powers vested in the President and the President shall have proclaimed that they have been ratified by I
Prime Minister under this Constitution. majority of the votes cast in the referendum-plebiscite."

4. The President (Prime Minister) and his Cabinet shall exercise all The Commission on Elections was vested with the exclusive supervision
the powers and functions, and discharge the responsibilities of the and control of the October 1976 National Referendum-Plebiscite.
regular President (Prime Minister) and his Cabinet, and shall be subject
only to such disqualifications as the President (Prime Minister) may On September 27, 1976, PABLO C. SANIDAD and PABLITO V. SANIDAD,
prescribe. The President (Prime Minister) if he so desires may appoint father and son, commenced L-44640 for Prohibition with Preliminary
Injunction seeking to enjoin the Commission on Elections from holding
and conducting the Referendum Plebiscite on October 16; to declare These last petitioners argue that even granting him legislative powers
without force and effect Presidential Decree Nos. 991 and 1033, insofar under Martial Law, the incumbent President cannot act as a
as they propose amendments to the Constitution, as well as constituent assembly to propose amendments to the Constitution; a
Presidential Decree No. 1031, insofar as it directs the Commission on referendum-plebiscite is untenable under the Constitutions of 1935
Elections to supervise, control, hold, and conduct the Referendum- and 1973; the submission of the proposed amendments in such a short
Plebiscite scheduled on October 16, 1976. period of time for deliberation renders the plebiscite a nullity; to lift
Martial Law, the President need not consult the people via
Petitioners contend that under the 1935 and 1973 Constitutions there referendum; and allowing 15-.year olds to vote would amount to an
is no grant to the incumbent President to exercise the constituent amendment of the Constitution, which confines the right of suffrage to
power to propose amendments to the new Constitution. As a those citizens of the Philippines 18 years of age and above.
consequence, the Referendum-Plebiscite on October 16 has no
constitutional or legal basis. We find the petitions in the three entitled cases to be devoid of merit.

On October 5, 1976, the Solicitor General filed the comment for I
respondent Commission on Elections, The Solicitor General principally
maintains that petitioners have no standing to sue; the issue raised is Justiciability of question raised.
political in nature, beyond judicial cognizance of this Court; at this state
of the transition period, only the incumbent President has the 1. As a preliminary resolution, We rule that the petitioners in L-
authority to exercise constituent power; the referendum-plebiscite is 44640 (Pablo C. Sanidad and Pablito V. Sanidad) possess locus standi to
a step towards normalization. challenge the constitutional premise of Presidential Decree Nos. 991,
1031, and 1033. It is now an ancient rule that the valid source of a
On September 30, 1976, another action for Prohibition with stature Presidential Decrees are of such nature-may be contested by
Preliminary Injunction, docketed as L-44684, was instituted by VICENTE one who will sustain a direct injuries as a in result of its enforcement.
M. GUZMAN, a delegate to the 1971 Constitutional Convention, At the instance of taxpayers, laws providing for the disbursement of
asserting that the power to propose amendments to, or revision of the public funds may be enjoined, upon the theory that the expenditure of
Constitution during the transition period is expressly conferred on the public funds by an officer of the State for the purpose of executing an
interim National Assembly under Section 16, Article XVII of the unconstitutional act constitutes a misapplication of such funds. 4 The
Constitution.3 breadth of Presidential Decree No. 991 carries all appropriation of Five
Million Pesos for the effective implementation of its purposes. 5
Still another petition for Prohibition with Preliminary Injunction was Presidential Decree No. 1031 appropriates the sum of Eight Million
filed on October 5, 1976 by RAUL M. GONZALES, his son RAUL, JR., and Pesos to carry out its provisions. 6 The interest of the aforenamed
ALFREDO SALAPANTAN, docketed as L- 44714, to restrain the petitioners as taxpayers in the lawful expenditure of these amounts of
implementation of Presidential Decrees relative to the forthcoming public money sufficiently clothes them with that personality to litigate
Referendum-Plebiscite of October 16. the validity of the Decrees appropriating said funds. Moreover, as
regards taxpayer's suits, this Court enjoys that open discretion to
entertain the same or not. 7 For the present case, We deem it sound
to exercise that discretion affirmatively so that the authority upon vested with that authorities to determine whether that power has
which the disputed Decrees are predicated may be inquired into. been discharged within its limits.

2. The Solicitor General would consider the question at bar as a Political questions are neatly associated with the wisdom, of the
pure political one, lying outside the domain of judicial review. We legality of a particular act. Where the vortex of the controversy refers
disagree. The amending process both as to proposal and ratification, to the legality or validity of the contested act, that matter is definitely
raises a judicial question. 8 This is especially true in cases where the justiciable or non-political. What is in the heels of the Court is not the
power of the Presidency to initiate the of normally exercised by the wisdom of the act of the incumbent President in proposing
legislature, is seriously doubted. Under the terms of the 1973 amendments to the Constitution, but his constitutional authority to
Constitution, the power to propose amendments o the constitution perform such act or to assume the power of a constituent assembly.
resides in the interim National Assembly in the period of transition Whether the amending process confers on the President that power to
(See. 15, Transitory provisions). After that period, and the regular propose amendments is therefore a downright justiciable question.
National Assembly in its active session, the power to propose Should the contrary be found, the actuation of the President would
amendments becomes ipso facto the prerogative of the regular merely be a brutum fulmen. If the Constitution provides how it may be
National Assembly (Sec. 1, pars. 1 and 2 of Art. XVI, 1973 constitution). amended, the judiciary as the interpreter of that Constitution, can
The normal course has not been followed. Rather than calling the declare whether the procedure followed or the authority assumed was
National Assembly to constitute itself into a constituent assembly the valid or not. 10
incumbent President undertook the proposal of amendments and
submitted the proposed amendments thru Presidential Decree 1033 to We cannot accept the view of the Solicitor General, in pursuing his
the people in a Referendum-Plebiscite on October 16. Unavoidably, the theory of non-justiciability, that the question of the President's
regularity regularity of the procedure for amendments, written in authority to propose amendments and the regularity of the procedure
lambent words in the very Constitution sought to be amended, raises adopted for submission of the proposal to the people ultimately lie in
a contestable issue. The implementing Presidential Decree Nos. 991, the judgment of the A clear Descartes fallacy of vicious circle. Is it not
1031, and 1033, which commonly purport to have the force and effect that the people themselves, by their sovereign act, provided for the
of legislation are assailed as invalid, thus the issue of the validity of said authority and procedure for the amending process when they ratified
Decrees is plainly a justiciable one, within the competence of this Court the present Constitution in 1973? Whether, therefore, the
to pass upon. Section 2 (2), Article X of the new Constitution provides: constitutional provision has been followed or not is the proper subject
"All cases involving the constitutionality of a treaty, executive of inquiry, not by the people themselves of course who exercise no
agreement, or law may shall be heard and decided by the Supreme power of judicial but by the Supreme Court in whom the people
Court en banc and no treaty, executive agreement, or law may be themselves vested that power, a power which includes the
declared unconstitutional without the concurrence of at least ten competence to determine whether the constitutional norms for
Members. ..." The Supreme Court has the last word in the construction amendments have been observed or not. And, this inquiry must be
not only of treaties and statutes, but also of the Constitution itself The done a prior not a posterior i.e., before the submission to and
amending, like all other powers organized in the Constitution, is in form ratification by the people.
a delegated and hence a limited power, so that the Supreme Court is
Indeed, the precedents evolved by the Court or, prior constitutional "The reasons adduced in support thereof are, however, substantially
cases underline the preference of the Court's majority to treat such the same as those given in support on the political question theory
issue of Presidential role in the amending process as one of non- advanced in said habeas corpus and plebiscite cases, which were
political impression. In the Plebiscite Cases, 11 the contention of the carefully considered by this Court and found by it to be legally unsound
Solicitor General that the issue on the legality of Presidential Decree and constitutionally untenable. As a consequence. Our decisions in the
No. 73 "submitting to the Pilipino people (on January 15, 1973) for aforementioned habeas corpus cases partakes of the nature and effect
ratification or rejection the Constitution of the Republic of the of a stare decisis which gained added weight by its virtual reiteration."
Philippines proposed by the 1971 Constitutional Convention and
appropriating fund s therefore "is a political one, was rejected and the II
Court unanimously considered the issue as justiciable in nature.
Subsequently in the Ratification Cases 12 involving the issue of The amending process as laid out
whether or not the validity of Presidential Proclamation No. 1102.
announcing the Ratification by the Filipino people of the constitution in the new Constitution.
proposed by the 1971 Constitutional Convention," partakes of the
nature of a political question, the affirmative stand of' the Solicitor 1. Article XVI of the 1973 Constitution on Amendments ordains:
General was dismissed, the Court ruled that the question raised is
justiciable. Chief Justice Concepcion, expressing the majority view, SECTION 1. (1) Any amendment to, or revision of, this Constitution may
said, Thus, in the aforementioned plebiscite cases, We rejected the be proposed by the National Assembly upon a vote of three-fourths of
theory of the respondents therein that the question whether all its Members, or by a constitutional convention. (2) The National
Presidential Decree No. 73 calling a plebiscite to be held on January 15, Assembly may, by a vote of two-thirds of all its Members, call a
1973, for the ratification or rejection of the proposed new Constitution, constitutional convention or, by a majority vote of all its Members,
was valid or not, was not a proper subject of judicial inquiry because, submit the question of calling such a convention to the electorate in an
they claimed, it partook of a political nature, and We unanimously election.
declared that the issue was a justiciable one. With Identical unanimity.
We overruled the respondent's contention in the 1971 habeas corpus SECTION 2. Any amendment to, or revision of, this Constitution shall
cases, questioning Our authority to determine the constitutional be valid when ratified by a majority of the votes cast in a plebiscite
sufficiency of the factual bases of the Presidential proclamation which shall be held not later than three months after the approval of
suspending the privilege of the writ of habeas corpus on August 21, such amendment or revision.
1971, despite the opposite view taken by this Court in Barcelon vs.
Baker and Montenegro vs. Castaneda, insofar as it adhered to the In the present period of transition, the interim National Assembly
former case, which view We, accordingly, abandoned and refused to instituted in the Transitory Provisions is conferred with that amending
apply. For the same reason, We did not apply and expressly modified, power. Section 15 of the Transitory Provisions reads:
in Gonzales vs. Commission on Elections, the political-question theory
adopted in Mabanag vs. Lopez Vito." 13 The return to Barcelon vs. SECTION 15. The interim National Assembly, upon special call by the
Baker and Mabanag vs. Lopez Vito, urged by the Solicitor General, was interim Prime Minister, may, by a majority vote of all its Members,
decisively refused by the Court. Chief Justice Concepcion continued:
propose amendments to this Constitution. Such amendments shall Citizens Assemblies ("bagangays") reiterated their sovereign will to
take effect when ratified in accordance with Article Sixteen hereof. withhold the convening of the interim National Assembly. Again, in the
referendum of February 27, 1975, the proposed question of whether
There are, therefore, two periods contemplated in the constitutional the interim National Assembly shall be initially convened was
life of the nation, i.e., period of normalcy and period of transition. In eliminated, because some of the members of Congress and delegates
times of normally, the amending process may be initiated by the of the Constitutional Convention, who were deemed automatically
proposals of the (1) regular National Assembly upon a vote of three- members of the I interim National Assembly, were against its inclusion
fourths of all its members; or (2) by a Constitutional Convention called since in that referendum of January, 1973, the people had already
by a vote of two-thirds of all the Members of the National Assembly. resolved against it.
However the calling of a Constitutional Convention may be submitted
to the electorate in an election voted upon by a majority vote of all the 3. In sensu strictiore, when the legislative arm of the state
members of the National Assembly. In times of transition, undertakes the proposals of amendment to a Constitution, that body
amendments may be proposed by a majority vote of all the Members is not in the usual function of lawmaking. lt is not legislating when
of the National Assembly upon special call by the interim Prime engaged in the amending process.16 Rather, it is exercising a peculiar
Minister,. power bestowed upon it by the fundamental charter itself. In the
Philippines, that power is provided for in Article XVI of the 1973
2. This Court in Aquino v. COMELEC," had already settled that the Constitution (for the regular National Assembly) or in Section 15 of the
incumbent President is vested with that prerogative of discretion as to Transitory Provisions (for the National Assembly). While ordinarily it is
when he shall initially convene the interim National Assembly. the business of the legislating body to legislate for the nation by virtue
Speaking for the majority opinion in that case, Justice Makasiar said: of constitutional conferment amending of the Constitution is not
"The Constitutional Convention intended to leave to the President the legislative in character. In political science a distinction is made
determination of the time when he shall initially convene the interim between constitutional content of an organic character and that of a
National Assembly, consistent with the prevailing conditions of peace legislative character'. The distinction, however, is one of policy, not of
and order in the country." Concurring, Justice Fernandez, himself a law. 17 Such being the case, approval of the President of any proposed
member of that Constitutional Convention, revealed: "(W)hen the amendment is a misnomer 18 The prerogative of the President to
Delegates to the Constitutional Convention voted on the Transitory approve or disapprove applies only to the ordinary cases of legislation.
Provisions, they were aware of the fact that under the same, the The President has nothing to do with proposition or adoption of
incumbent President was given the discretion as to when he could amendments to the Constitution. 19
convene the interim National Assembly; it was so stated plainly by the
sponsor, Delegate Yaneza; as a matter of fact, the proposal that it be III
convened 'immediately', made by Delegate Pimentel (V) was rejected.
The President's decision to defer the convening of the interim National Concentration of Powers
Assembly soon found support from the people themselves. In the
plebiscite of January 10-15, 1973, at which the ratification of the 1973 in the President during
Constitution was submitted, the people voted against the convening of
the interim National Assembly. In the referendum of July 24, 1973, the crisis government.
 the release of the government from "the paralysis of constitutional
1. In general, the governmental powers in crisis government the restrains" so that the crisis may be ended and normal times restored.
Philippines is a crisis government today are more or less concentrated
in the President. 20 According to Rossiter, "(t)he concentration of 2. The presidential exercise of legislative powers in time of martial
government power in a democracy faced by an emergency is a law is now a conceded valid at. That sun clear authority of the President
corrective to the crisis inefficiencies inherent in the doctrine of the is saddled on Section 3 (pars. 1 and 2) of the Transitory Provisions, thus:
separation of powers. In most free states it has generally been 23
regarded as imperative that the total power of the government be
parceled out among three mutually independent branches executive, The incumbent President of the Philippines shall initially convene the
legislature, and judiciary. It is believed to be destructive of interim National Assembly and shall preside over its sessions until the
constitutionalism if any one branch should exercise any two or more interim Speaker shall have been elected. He shall continue to exercise
types of power, and certainly a total disregard of the separation of his powers and prerogatives under the nineteen hundred and thirty-
powers is, as Madison wrote in the Federalist, No. 47, 'the very five Constitution and the powers vested in the President and the Prime
definition of tyranny.' In normal times the separation of powers forms Minister under this Constitution until the calls upon the interim
a distinct obstruction to arbitrary governmental action. By this same National Assembly to elect the interim President and the interim Prime
token, in abnormal times it may form an insurmountable barrier to a Minister, who shall then exercise their respective powers vested by this
decisive emergency action in behalf of the state and its independent Constitution.
existence. There are moments in the life of any government when all
powers must work together in unanimity of purpose and action, even All proclamations, orders, decrees, instructions, and acts promulgated,
if this means the temporary union of executive, legislative, and judicial issued, or done by the incumbent President shall be part of the law of
power in the hands of one man. The more complete the separation of the land, and shall remain valid, binding, and effective even after lifting
powers in a constitutional system, the more difficult and yet the more of martial law or the ratification of this Constitution, unless modified,
necessary will be their fusion in time of crisis. This is evident in a revoked, or superseded by subsequent proclamations, orders, decrees,
comparison of the crisis potentialities of the cabinet and presidential instructions, or other acts of the incumbent President, or unless
systems of government. In the former the all-important harmony of expressly and explicitly modified or repealed by the regular National
legislature and executive is taken for granted; in the latter it is neither Assembly.
guaranteed nor to be to confidently expected. As a result, cabinet is
more easily established and more trustworthy than presidential "It is unthinkable," said Justice Fernandez, a 1971 Constitutional
dictatorship. The power of the state in crisis must not only be Convention delegate, "that the Constitutional Convention, while giving
concentrated and expanded; it must also be freed from the normal to the President the discretion when to call the interim National
system of constitutional and legal limitations. 21 John Locke, on the Assembly to session, and knowing that it may not be convened soon,
other hand, claims for the executive in its own right a broad discretion would create a vacuum in the exercise of legislative powers. Otherwise,
capable even of setting aside the ordinary laws in the meeting of with no one to exercise the lawmaking powers, there would be
special exigencies for which the legislative power had not provided. 22 paralyzation of the entire governmental machinery." 24 Paraphrasing
The rationale behind such broad emergency powers of the Executive is Rossiter, this is an extremely important factor in any constitutional
dictatorship which extends over a period of time. The separation of
executive and legislature ordained in the Constitution presents a Assembly, there is no reason why he cannot validly discharge the
distinct obstruction to efficient crisis government. The steady increase function of that Assembly to propose amendments to the Constitution,
in executive power is not too much a cause for as the steady increase which is but adjunct, although peculiar, to its gross legislative power.
in the magnitude and complexity of the problems the President has This, of course, is not to say that the President has converted his office
been called upon by the Filipino people to solve in their behalf, which into a constituent assembly of that nature normally constituted by the
involve rebellion, subversion, secession, recession, inflation, and legislature. Rather, with the interim National Assembly not convened
economic crisis-a crisis greater than war. In short, while conventional and only the Presidency and the Supreme Court in operation, the urges
constitutional law just confines the President's power as Commander- of absolute necessity render it imperative upon the President to act as
in-Chief to the direction of the operation of the national forces, yet the agent for and in behalf of the people to propose amendments to the
facts of our political, social, and economic disturbances had Constitution. Parenthetically, by its very constitution, the Supreme
convincingly shown that in meeting the same, indefinite power should Court possesses no capacity to propose amendments without
be attributed to tile President to take emergency measures 25 constitutional infractions. For the President to shy away from that
actuality and decline to undertake the amending process would leave
IV the governmental machineries at a stalemate or create in the powers
of the State a destructive vacuum, thereby impeding the objective of a
Authority of the incumbent crisis government "to end the crisis and restore normal times." In these
parlous times, that Presidential initiative to reduce into concrete forms
President t to propose the constant voices of the people reigns supreme. After all, constituent
assemblies or constitutional conventions, like the President now, are
amendments to the Constitution. mere agents of the people .26

1. As earlier pointed out, the power to legislate is constitutionally 2. The President's action is not a unilateral move. As early as the
consigned to the interim National Assembly during the transition referendums of January 1973 and February 1975, the people had
period. However, the initial convening of that Assembly is a matter fully already rejected the calling of the interim National Assembly. The
addressed to the judgment of the incumbent President. And, in the Lupong Tagapagpaganap of the Katipunan ng mga Sanggunian, the
exercise of that judgment, the President opted to defer convening of Pambansang Katipunan ng mga Barangay, and the Pambansang
that body in utter recognition of the people's preference. Likewise, in Katipunan ng mga Barangay, representing 42,000 barangays, about the
the period of transition, the power to propose amendments to the same number of Kabataang Barangay organizations, Sanggunians in
Constitution lies in the interim National Assembly upon special call by 1,458 municipalities, 72 provinces, 3 sub-provinces, and 60 cities had
the President (See. 15 of the Transitory Provisions). Again, harking to informed the President that the prevailing sentiment of the people is
the dictates of the sovereign will, the President decided not to call the for the abolition of the interim National Assembly. Other issues
interim National Assembly. Would it then be within the bounds of the concerned the lifting of martial law and amendments to the
Constitution and of law for the President to assume that constituent Constitution .27 The national organizations of Sangguniang Bayan
power of the interim Assembly vis-a-vis his assumption of that body's presently proposed to settle the issues of martial law, the interim
legislative functions? The answer is yes. If the President has been Assembly, its replacement, the period of its existence, the length of the
legitimately discharging the legislative functions of the interim period for the exercise by the President of its present powers in a
referendum to be held on October 16 . 28 The Batasang Bayan
(legislative council) created under Presidential Decree 995 of 2. The October 16 referendum-plebiscite is a resounding call to
September 10, 1976, composed of 19 cabinet members, 9 officials with the people to exercise their sovereign power as constitutional
cabinet rank, 91 members of the Lupong Tagapagpaganap (executive legislator. The proposed amendments, as earlier discussed, proceed
committee) of the Katipunan ng mga Sangguniang Bayan voted in not from the thinking of a single man. Rather, they are the collated
session to submit directly to the people in a plebiscite on October 16, thoughts of the sovereign will reduced only into enabling forms by the
the previously quoted proposed amendments to the Constitution, authority who can presently exercise the powers of the government.
including the issue of martial law .29 Similarly, the "barangays" and the In equal vein, the submission of those proposed amendments and the
"sanggunians" endorsed to the President the submission of the question of martial law in a referendum-plebiscite expresses but the
proposed amendments to the people on October 16. All the foregoing option of the people themselves implemented only by the authority of
led the President to initiate the proposal of amendments to the the President. Indeed, it may well be said that the amending process is
Constitution and the subsequent issuance of Presidential Decree No, a sovereign act, although the authority to initiate the same and the
1033 on September 22, 1976 submitting the questions (proposed procedure to be followed reside somehow in a particular body.
amendments) to the people in the National Referendum-Plebiscite on
October 16. VI

V Referendum-Plebiscite not

The People is Sovereign rendered nugatory by the

1. Unlike in a federal state, the location of sovereignty in a unitary participation of the 15-year olds.
state is easily seen. In the Philippines, a republican and unitary state,
sovereignty "resides in the people and all government authority 1. October 16 is in parts a referendum and a plebiscite. The
emanates from them .30 In its fourth meaning, Savigny would treat question - (1) Do you want martial law to be continued? - is a
people as "that particular organized assembly of individuals in which, referendum question, wherein the 15-year olds may participate. This
according to the Constitution, the highest power exists." 31 This is the was prompted by the desire of the Government to reach the larger mas
concept of popular sovereignty. It means that the constitutional of the people so that their true pulse may be felt to guide the President
legislator, namely the people, is sovereign 32 In consequence, the in pursuing his program for a New Order. For the succeeding question
people may thus write into the Constitution their convictions on any on the proposed amendments, only those of voting age of 18 years may
subject they choose in the absence of express constitutional participate. This is the plebiscite aspect, as contemplated in Section 2,
prohibition. 33 This is because, as Holmes said, the Constitution "is an Article XVI of the new Constitution. 36 On this second question, it
experiment, as all life is all experiment." 34 "The necessities of orderly would only be the votes of those 18 years old and above which will
government," wrote Rottschaefer, "do not require that one generation have valid bearing on the results. The fact that the voting populace are
should be permitted to permanently fetter all future generations." A simultaneously asked to answer the referendum question and the
constitution is based, therefore, upon a self-limiting decision of the plebiscite question does not infirm the referendum-plebiscite. There is
people when they adopt it. 35 nothing objectionable in consulting the people on a given issue, which
is of current one and submitting to them for ratification of proposed that liberty is aimed at. The for the referendum-plebiscite on October
constitutional amendments. The fear of commingled votes (15-year 16 recognizes all the embracing freedoms of expression and assembly
olds and 18-year olds above) is readily dispelled by the provision of two The President himself had announced that he would not countenance
ballot boxes for every barangay center, one containing the ballots of any suppression of dissenting views on the issues, as he is not
voters fifteen years of age and under eighteen, and another containing interested in winning a "yes" or "no" vote, but on the genuine
the ballots of voters eighteen years of age and above. 37 The ballots in sentiment of the people on the issues at hand. 42 Thus, the dissenters
the ballot box for voters fifteen years of age and under eighteen shall soon found their way to the public forums, voicing out loud and clear
be counted ahead of the ballots of voters eighteen years and above their adverse views on the proposed amendments and even (in the
contained in another ballot box. And, the results of the referendum- valid ratification of the 1973 Constitution, which is already a settled
plebiscite shall be separately prepared for the age groupings, i.e., matter. 43 Even government employees have been held by the Civil
ballots contained in each of the two boxes. 38 Service Commission free to participate in public discussion and even
campaign for their stand on the referendum-plebiscite issues. 44
2. It is apt to distinguish here between a "referendum" and a
"plebiscite." A "referendum" is merely consultative in character. It is VIII
simply a means of assessing public reaction to the given issues
submitted to the people foe their consideration, the calling of which is Time for deliberation
derived from or within the totality of the executive power of the
President. 39 It is participated in by all citizens from the age of fifteen, is not short.
regardless of whether or not they are illiterates, feeble-minded, or ex-
convicts . 40 A "plebiscite," on the other hand, involves the constituent 1. The period from September 21 to October 16 or a period of 3
act of those "citizens of the Philippines not otherwise disqualified by weeks is not too short for free debates or discussions on the
law, who are eighteen years of age or over, and who shall have resided referendum-plebiscite issues. The questions are not new. They are the
in the Philippines for at least one year and in the place wherein they issues of the day. The people have been living with them since the
propose to vote for at least six months preceding the election Literacy, proclamation of martial law four years ago. The referendums of 1973
property or any other substantive requirement is not imposed. It is and 1975 carried the same issue of martial law. That notwithstanding,
generally associated with the amending process of the Constitution, the contested brief period for discussion is not without counterparts in
more particularly, the ratification aspect. previous plebiscites for constitutional amendments. Justice Makasiar,
in the Referendum Case, recalls: "Under the old Society, 15 days were
VII allotted for the publication in three consecutive issues of the Official
Gazette of the women's suffrage amendment to the Constitution
1. There appeals to be no valid basis for the claim that the regime before the scheduled plebiscite on April 30, 1937 (Com. Act No. 34).
of martial law stultifies in main the freedom to dissent. That speaks of The constitutional amendment to append as ordinance the
a bygone fear. The martial law regime which, in the observation of complicated Tydings-Kocialskowski was published in only three
Justice Fernando, 41 is impressed with a mild character recorded no consecutive issues of the Official Gazette for 10 days prior to the
State imposition for a muffled voice. To be sure, there are restraints of scheduled plebiscite (Com. Act 492). For the 1940 Constitutional
the individual liberty, but on certain grounds no total suppression of amendments providing for the bicameral Congress, the reelection of
the President and Vice President, and the creation of the Commission 1. Is the question of the constitutionality of Presidential Decrees
on Elections, 20 days of publication in three consecutive issues of the Nos. 991, 1031 and 1033 political or justiciable?
Official Gazette was fixed (Com Act No. 517). And the Parity
Amendment, an involved constitutional amendment affecting the 2. During the present stage of the transition period, and under,
economy as well as the independence of the Republic was publicized the environmental circumstances now obtaining, does the President
in three consecutive issues of the Official Gazette for 20 days prior to possess power to propose amendments to the Constitution as well as
the plebiscite (Rep. Act No. 73)." 45 set up the required machinery and prescribe the procedure for the
ratification of his proposals by the people?
2. It is worthy to note that Article XVI of the Constitution makes
no provision as to the specific date when the plebiscite shall be held, 3. Is the submission to the people of the proposed amendments
but simply states that it "shall be held not later than three months after within the time frame allowed therefor a sufficient and proper
the approval of such amendment or revision." In Coleman v. Miller, 46 submission?
the United States Supreme court held that this matter of submission
involves "an appraisal of a great variety of relevant conditions, political, Upon the first issue, Chief Justice Fred Ruiz Castro and Associate
social and economic," which "are essentially political and not Justices Enrique M. Fernando, Claudio Teehankee, Antonio P. Barredo,
justiciable." The constituent body or in the instant cases, the President, Cecilia Munoz Palma, Hermogenes Concepcion Jr. and Ruperto G.
may fix the time within which the people may act. This is because Martin are of the view that the question posed is justiciable, while
proposal and ratification are not treated as unrelated acts, but as Associate Justices Felix V. Makasiar, Felix Q. Antonio and Ramon C.
succeeding steps in a single endeavor, the natural inference being that Aquino hold the view that the question is political.
they are not to be widely separated in time; second, it is only when
there is deemed to be a necessity therefor that amendments are to be Upon the second issue, Chief Justice Castro and Associate Justices
proposed, the reasonable implication being that when proposed, they Barredo, Makasiar, Antonio, Aquino, Concepcion Jr. and Martin voted
are to be considered and disposed of presently, and third, ratification in the affirmative, while Associate Justices Teehankee and Munoz
is but the expression of the approbation of the people, hence, it must Palma voted in the negative. Associate Justice Fernando, conformably
be done contemporaneously. 47 In the words of Jameson, "(a)n to his concurring and dissenting opinion in Aquino vs. Enrile (59 SCRA
alteration of the Constitution proposed today has relation to the 183), specifically dissents from the proposition that there is
sentiment and the felt needs of today, and that, if not ratified early concentration of powers in the Executive during periods of crisis, thus
while that sentiment may fairly be supposed to exist. it ought to be raising serious doubts as to the power of the President to propose
regarded as waived, and not again to be voted upon, unless a second amendments.
time proposed by proper body
Upon the third issue, Chief Justice Castro and Associate Justices
IN RESUME Barredo, Makasiar, Aquino, Concepcion Jr. and Martin are of the view
that there is a sufficient and proper submission of the proposed
The three issues are amendments for ratification by the people. Associate Justices Barredo
and Makasiar expressed the hope, however that the period of time
may be extended. Associate Justices Fernando, Makasiar and Antonio
are of the view that the question is political and therefore beyond the
competence and cognizance of this Court, Associate Justice Fernando
adheres to his concurrence in the opinion of Chief Justice Concepcion
in Gonzales vs. COMELEC (21 SCRA 774).Associate Justices Teehankee
and MUNOZ Palma hold that prescinding from the President's lack of
authority to exercise the constituent power to propose the
amendments, etc., as above stated, there is no fair and proper
submission with sufficient information and time to assure intelligent
consent or rejection under the standards set by this Court in the
controlling cases of Gonzales, supra, and Tolentino vs. COMELEC (41
SCRA 702).

Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio,
Aquino, Concepcion Jr. and Martin voted to dismiss the three petitions
at bar. For reasons as expressed in his separate opinion, Associate
Justice Fernando concurs in the result. Associate Justices Teehankee
and Munoz Palma voted to grant the petitions.

ACCORDINGLY, the vote being 8 to 2 to dismiss, the said petitions are
hereby dismissed. This decision is immediately executory.

SO ORDERED.

Aquino, J, in the result.

 2. UK v. ALBANIA If the act of livery be necessary to give validity to the
commission of an officer, it has been delivered when executed,
3. MARBURRY v. MADISON and given to the Secretary of State for the purpose of being
sealed, recorded, and transmitted to the party.
U.S. Supreme Court
In cases of commissions to public officers, the law orders the
Marbury v. Madison, 5 U.S. 1 Cranch 137 137 (1803) Secretary of State to record them. When, therefore, they are
signed and sealed, the order for their being recorded is given,
Marbury v. Madison and, whether inserted inserted into the book or not, they are
recorded.
5 U.S. (1 Cranch) 137
When the heads of the departments of the Government are the
political or confidential officers of the Executive, merely to
Syllabus execute the will of the President, or rather to act in cases in
which the Executive possesses a constitutional or legal
The clerks of the Department of State of the United States may discretion, nothing can be more perfectly clear than that their
be called upon to give evidence of transactions in the acts are only politically examinable. But where a specific duty is
Department which are not of a confidential character. assigned by law, and individual rights depend upon the
performance of that duty, it seems equally clear that the
The Secretary of State cannot be called upon as a witness to individual who considers himself injured has a right to resort to
state transactions of a confidential nature which may have the laws of his country for a remedy.
occurred in his Department. But he may be called upon to give
testimony of circumstances which were not of that character. The President of the United States, by signing the commission,
appointed Mr. Marbury a justice of the peace for the County of
Clerks in the Department of State were directed to be sworn, Washington, in the District of Columbia, and the seal of the
subject to objections to questions upon confidential matters. United States, affixed thereto by the Secretary of State, is
conclusive testimony of the verity of the signature, and of the
Some point of time must be taken when the power of the completion of the appointment; and the appointment
Executive over an officer, not removable at his will, must cease. conferred on him a legal right to the office for the space of five
That point of time must be when the constitutional power of years. Having this legal right to the office, he has a consequent
appointment has been exercised. And the power has been right to the commission, a refusal to deliver which is a plain
exercised when the last act required from the person violation of that right for which the laws of the country afford
possessing the power has been performed. This last act is the him a remedy.
signature of the commission.
To render a mandamus a proper remedy, the officer to whom
it is directed must be one to whom, on legal principles, such
writ must be directed, and the person applying for it must be and not such ordinary act, must govern the case to which they
without any other specific remedy. both apply.

Where a commission to a public officer has been made out, At the December Term, 1801, William Marbury, Dennis
signed, and sealed, and is withheld from the person entitled to Ramsay, Robert Townsend Hooe, and William Harper, by their
it, an action of detinue for the commission against the Secretary counsel,
of State who refuses to deliver it is not the proper remedy, as
the judgment in detinue is for the thing itself, or its value. The Page 5 U. S. 138
value of a public office, not to be sold, is incapable of being
ascertained. It is a plain case for a mandamus, either to deliver severally moved the court for a rule to James Madison,
the commission or a copy of it from the record. Secretary of State of the United States, to show cause why a
mandamus should not issue commanding him to cause to be
To enable the Court to issue a mandamus to compel the delivered to them respectively their several commissions as
delivery of the commission of a public office by the Secretary of justices of the peace in the District of Columbia. This motion
State, it must be shown that it is an exercise of appellate was supported by affidavits of the following facts: that notice
jurisdiction, or that it be necessary to enable them to exercise of this motion had been given to Mr. Madison; that Mr. Adams,
appellate jurisdiction. the late President of the United States, nominated the
applicants to the Senate for their advice and consent to be
It is the essential criterion of appellate jurisdiction that it revises appointed justices of the peace of the District of Columbia; that
and corrects the proceedings in a cause already instituted, and the Senate advised and consented to the appointments; that
does not create the cause. commissions in due form were signed by the said President
appointing them justices, &c., and that the seal of the United
The authority given to the Supreme Court by the act States was in due form affixed to the said commissions by the
establishing the judicial system of the United States to issue Secretary of State; that the applicants have requested Mr.
writs of mandamus to public officers appears not to be Madison to deliver them their said commissions, who has not
warranted by the Constitution. complied with that request; and that their said commissions are
withheld from them; that the applicants have made application
It is emphatically the duty of the Judicial Department to say to Mr. Madison as Secretary of State of the United States at his
what the law is. Those who apply the rule to particular cases office, for information whether the commissions were signed
must, of necessity, expound and interpret the rule. If two laws and sealed as aforesaid; that explicit and satisfactory
conflict with each other, the Court must decide on the information has not been given in answer to that inquiry, either
operation of each. by the Secretary of State or any officer in the Department of
State; that application has been made to the secretary of the
If courts are to regard the Constitution, and the Constitution is Senate for a certificate of the nomination of the applicants, and
superior to any ordinary act of the legislature, the Constitution, of the advice and consent of the Senate, who has declined
giving such a certificate; whereupon a rule was made to show
cause on the fourth day of this term. This rule having been duly
served, At the last term, on the affidavits then read and filed with the
clerk, a rule was granted in this case requiring the Secretary of
Page 5 U. S. 139 State to show cause why a mandamus

Mr. Jacob Wagner and Mr. Daniel Brent, who had been Page 5 U. S. 154
summoned to attend the court and were required to give
evidence, objected to be sworn, alleging that they were clerks should not issue directing him to deliver to William Marbury his
in the Department of State, and not bound to disclose any facts commission as a justice of the peace for the county of
relating to the business or transactions of the office. Washington, in the District of Columbia.

The court ordered the witnesses to be sworn, and their answers No cause has been shown, and the present motion is for a
taken in writing, but informed them that, when the questions mandamus. The peculiar delicacy of this case, the novelty of
were asked, they might state their objections to answering each some of its circumstances, and the real difficulty attending the
particular question, if they had any. points which occur in it require a complete exposition of the
principles on which the opinion to be given by the Court is
Mr. Lincoln, who had been the acting Secretary of State, when founded.
the circumstances stated in the affidavits occurred, was called
upon to give testimony. He objected to answering. The These principles have been, on the side of the applicant, very
questions were put in writing. ably argued at the bar. In rendering the opinion of the Court,
there will be some departure in form, though not in substance,
The court said there was nothing confidential required to be from the points stated in that argument.
disclosed. If there had been, he was not obliged to answer it,
and if he thought anything was communicated to him In the order in which the Court has viewed this subject, the
confidentially, he was not bound to disclose, nor was he obliged following questions have been considered and decided.
to state anything which would criminate himself.
1. Has the applicant a right to the commission he demands?
The questions argued by the counsel for the relators were, 1.
Whether the Supreme Court can award the writ of mandamus 2. If he has a right, and that right has been violated, do the laws
in any case. 2. Whether it will lie to a Secretary of State, in any of his country afford him a remedy?
case whatever. 3. Whether, in the present case, the Court may
award a mandamus to James Madison, Secretary of State. 3. If they do afford him a remedy, is it a mandamus issuing from
this court?
Page 5 U. S. 153
The first object of inquiry is:
Mr. Chief Justice MARSHALL delivered the opinion of the Court.
1. Has the applicant a right to the commission he demands?
The third section declares, that "He shall commission all the
His right originates in an act of Congress passed in February, officers of the United States."
1801, concerning the District of Columbia.
An act of Congress directs the Secretary of State to keep the
After dividing the district into two counties, the eleventh seal of the United States,
section of this law enacts,
"to make out and record, and affix the said seal to all civil
"that there shall be appointed in and for each of the said commissions to officers of the United States to be appointed by
counties such number of discreet persons to be justices of the the President, by and with the consent of the Senate, or by the
peace as the President of the United States shall, from time to President alone; provided that the said seal shall not be affixed
time, think expedient, to continue in office for five years. " to any commission before the same shall have been signed by
the President of the United States."
Page 5 U. S. 155
These are the clauses of the Constitution and laws of the United
It appears from the affidavits that, in compliance with this law, States which affect this part of the case. They seem to
a commission for William Marbury as a justice of peace for the contemplate three distinct operations:
County of Washington was signed by John Adams, then
President of the United States, after which the seal of the 1. The nomination. This is the sole act of the President, and is
United States was affixed to it, but the commission has never completely voluntary.
reached the person for whom it was made out.
2. The appointment. This is also the act of the President, and is
In order to determine whether he is entitled to this also a voluntary act, though it can only be performed by and
commission, it becomes necessary to inquire whether he has with the advice and consent of the Senate.
been appointed to the office. For if he has been appointed, the
law continues him in office for five years, and he is entitled to Page 5 U. S. 156
the possession of those evidences of office, which, being
completed, became his property. 3. The commission. To grant a commission to a person
appointed might perhaps be deemed a duty enjoined by the
The second section of the second article of the Constitution Constitution. "He shall," says that instrument, "commission all
declares, the officers of the United States."

"The President shall nominate, and, by and with the advice and The acts of appointing to office and commissioning the person
consent of the Senate, shall appoint ambassadors, other public appointed can scarcely be considered as one and the same,
ministers and consuls, and all other officers of the United since the power to perform them is given in two separate and
States, whose appointments are not otherwise provided for." distinct sections of the Constitution. The distinction between
the appointment and the commission will be rendered more These observations are premised solely for the purpose of
apparent by adverting to that provision in the second section of rendering more intelligible those which apply more directly to
the second article of the Constitution which authorises the particular case under consideration.
Congress
Page 5 U. S. 157
"to vest by law the appointment of such inferior officers as they
think proper in the President alone, in the Courts of law, or in This is an appointment made by the President, by and with the
the heads of departments;" advice and consent of the Senate, and is evidenced by no act
but the commission itself. In such a case, therefore, the
thus contemplating cases where the law may direct the commission and the appointment seem inseparable, it being
President to commission an officer appointed by the Courts or almost impossible to show an appointment otherwise than by
by the heads of departments. In such a case, to issue a proving the existence of a commission; still, the commission is
commission would be apparently a duty distinct from the not necessarily the appointment; though conclusive evidence
appointment, the performance of which perhaps could not of it.
legally be refused.
But at what stage does it amount to this conclusive evidence?
Although that clause of the Constitution which requires the
President to commission all the officers of the United States The answer to this question seems an obvious one. The
may never have been applied to officers appointed otherwise appointment, being the sole act of the President, must be
than by himself, yet it would be difficult to deny the legislative completely evidenced when it is shown that he has done
power to apply it to such cases. Of consequence, the everything to be performed by him.
constitutional distinction between the appointment to an office
and the commission of an officer who has been appointed Should the commission, instead of being evidence of an
remains the same as if in practice the President had appointment, even be considered as constituting the
commissioned officers appointed by an authority other than his appointment itself, still it would be made when the last act to
own. be done by the President was performed, or, at furthest, when
the commission was complete.
It follows too from the existence of this distinction that, if an
appointment was to be evidenced by any public act other than The last act to be done by the President is the signature of the
the commission, the performance of such public act would commission. He has then acted on the advice and consent of
create the officer, and if he was not removable at the will of the the Senate to his own nomination. The time for deliberation has
President, would either give him a right to his commission or then passed. He has decided. His judgment, on the advice and
enable him to perform the duties without it. consent of the Senate concurring with his nomination, has been
made, and the officer is appointed. This appointment is
evidenced by an open, unequivocal act, and, being the last act
required from the person making it, necessarily excludes the
idea of its being, so far as it respects the appointment, an The commission being signed, the subsequent duty of the
inchoate and incomplete transaction. Secretary of State is prescribed by law, and not to be guided by
the will of the President. He is to affix the seal of the United
Some point of time must be taken when the power of the States to the commission, and is to record it.
Executive over an officer, not removable at his will, must cease.
That point of time must be when the constitutional power of This is not a proceeding which may be varied if the judgment of
appointment has been exercised. And this power has been the Executive shall suggest one more eligible, but is a precise
exercised when the last act required from the person course accurately marked out by law, and is to be strictly
possessing the power has been performed. This last act is the pursued. It is the duty of the Secretary of State to conform to
signature of the commission. This idea seems to have prevailed the law, and in this he is an officer of the United States, bound
with the Legislature when the act passed converting the to obey the laws. He acts, in this respect, as has been very
Department properly stated at the bar, under the authority of law, and not
by the instructions of the President. It is a ministerial act which
Page 5 U. S. 158 the law enjoins on a particular officer for a particular purpose.

of Foreign Affairs into the Department of State. By that act, it is If it should be supposed that the solemnity of affixing the seal
enacted that the Secretary of State shall keep the seal of the is necessary not only to the validity of the commission, but even
United States, to the completion of an appointment, still, when the seal is
affixed, the appointment is made, and
"and shall make out and record, and shall affix the said seal to
all civil commissions to officers of the United States, to be Page 5 U. S. 159
appointed by the President: . . . provided that the said seal shall
not be affixed to any commission before the same shall have the commission is valid. No other solemnity is required by law;
been signed by the President of the United States, nor to any no other act is to be performed on the part of government. All
other instrument or act without the special warrant of the that the Executive can do to invest the person with his office is
President therefor." done, and unless the appointment be then made, the Executive
cannot make one without the cooperation of others.
The signature is a warrant for affixing the great seal to the
commission, and the great seal is only to be affixed to an After searching anxiously for the principles on which a contrary
instrument which is complete. It attests, by an act supposed to opinion may be supported, none has been found which appear
be of public notoriety, the verity of the Presidential signature. of sufficient force to maintain the opposite doctrine.

It is never to be affixed till the commission is signed, because Such as the imagination of the Court could suggest have been
the signature, which gives force and effect to the commission, very deliberately examined, and after allowing them all the
is conclusive evidence that the appointment is made. weight which it appears possible to give them, they do not
shake the opinion which has been formed.
 It has also occurred as possible, and barely possible, that the
In considering this question, it has been conjectured that the transmission of the commission and the acceptance thereof
commission may have been assimilated to a deed to the validity might be deemed necessary to complete the right of the
of which delivery is essential. plaintiff.

This idea is founded on the supposition that the commission is The transmission of the commission is a practice directed by
not merely evidence of an appointment, but is itself the actual convenience, but not by law. It cannot therefore be necessary
appointment -- a supposition by no means unquestionable. But, to constitute the appointment, which must precede it and
for the purpose of examining this objection fairly, let it be which is the mere act of the President. If the Executive required
conceded that the principle claimed for its support is that every person appointed to an office should himself take
established. means to procure his commission, the appointment would not
be the less valid on that account. The appointment is the sole
The appointment being, under the Constitution, to be made by act of the President; the transmission of the commission is the
the President personally, the delivery of the deed of sole act of the officer to whom that duty is assigned, and may
appointment, if necessary to its completion, must be made by be accelerated or retarded by circumstances which can have no
the President also. It is not necessary that the livery should be influence on the appointment. A commission is transmitted to
made personally to the grantee of the office; it never is so a person already appointed, not to a person to be appointed or
made. The law would seem to contemplate that it should be not, as the letter enclosing the commission should happen to
made to the Secretary of State, since it directs the secretary to get into the post office and reach him in safety, or to miscarry.
affix the seal to the commission after it shall have been signed
by the President. If then the act of livery be necessary to give It may have some tendency to elucidate this point to inquire
validity to the commission, it has been delivered when whether the possession of the original commission be
executed and given to the Secretary for the purpose of being indispensably necessary to authorize a person appointed to any
sealed, recorded, and transmitted to the party. office to perform the duties of that office. If it was necessary,
then a loss of the commission would lose the office. Not only
But in all cases of letters patent, certain solemnities are negligence, but accident or fraud, fire or theft might deprive an
required by law, which solemnities are the evidences individual of his office. In such a case, I presume it could not be
doubted but that a copy from the record of the Office of the
Page 5 U. S. 160 Secretary of State would be, to every intent and purpose, equal
to the original. The act of Congress has expressly made it so. To
of the validity of the instrument. A formal delivery to the person give that copy validity, it would not be necessary to prove that
is not among them. In cases of commissions, the sign manual of the original had been transmitted and afterwards lost. The copy
the President and the seal of the United States are those would be complete evidence that the original had existed, and
solemnities. This objection therefore does not touch the case. that the appointment had been made, but not that the original
had been transmitted. If indeed it should appear that

Page 5 U. S. 161 That this is the understanding of the government is apparent
from the whole tenor of its conduct.
the original had been mislaid in the Office of State, that
circumstance would not affect the operation of the copy. When A commission bears date, and the salary of the officer
all the requisites have been performed which authorize a commences from his appointment, not from the transmission
recording officer to record any instrument whatever, and the or acceptance of his commission. When a person appointed to
order for that purpose has been given, the instrument is in law any office refuses to accept that office, the successor is
considered as recorded, although the manual labour of nominated in the place of the person who
inserting it in a book kept for that purpose may not have been
performed. Page 5 U. S. 162

In the case of commissions, the law orders the Secretary of has declined to accept, and not in the place of the person who
State to record them. When, therefore, they are signed and had been previously in office and had created the original
sealed, the order for their being recorded is given, and, whether vacancy.
inserted in the book or not, they are in law recorded.
It is therefore decidedly the opinion of the Court that, when a
A copy of this record is declared equal to the original, and the commission has been signed by the President, the appointment
fees to be paid by a person requiring a copy are ascertained by is made, and that the commission is complete when the seal of
law. Can a keeper of a public record erase therefrom a the United States has been affixed to it by the Secretary of
commission which has been recorded? Or can he refuse a copy State.
thereof to a person demanding it on the terms prescribed by
law? Where an officer is removable at the will of the Executive, the
circumstance which completes his appointment is of no
Such a copy would, equally with the original, authorize the concern, because the act is at any time revocable, and the
justice of peace to proceed in the performance of his duty, commission may be arrested if still in the office. But when the
because it would, equally with the original, attest his officer is not removable at the will of the Executive, the
appointment. appointment is not revocable, and cannot be annulled. It has
conferred legal rights which cannot be resumed.
If the transmission of a commission be not considered as
necessary to give validity to an appointment, still less is its The discretion of the Executive is to be exercised until the
acceptance. The appointment is the sole act of the President; appointment has been made. But having once made the
the acceptance is the sole act of the officer, and is, in plain appointment, his power over the office is terminated in all
common sense, posterior to the appointment. As he may cases, where by law the officer is not removable by him. The
resign, so may he refuse to accept; but neither the one nor the right to the office is then in the person appointed, and he has
other is capable of rendering the appointment a nonentity. the absolute, unconditional power of accepting or rejecting it.

Mr. Marbury, then, since his commission was signed by the "I am next to consider such injuries as are cognizable by the
President and sealed by the Secretary of State, was appointed, Courts of common law. And herein I shall for the present only
and as the law creating the office gave the officer a right to hold remark that all possible injuries whatsoever that did not fall
for five years independent of the Executive, the appointment within the exclusive cognizance of either the ecclesiastical,
was not revocable, but vested in the officer legal rights which military, or maritime tribunals are, for that very reason, within
are protected by the laws of his country. the cognizance of the common law courts of justice, for it is a
settled and invariable principle in the laws of England that every
To withhold the commission, therefore, is an act deemed by the right, when withheld, must have a remedy, and every injury its
Court not warranted by law, but violative of a vested legal right. proper redress."

This brings us to the second inquiry, which is: The Government of the United States has been emphatically
termed a government of laws, and not of men. It will certainly
2. If he has a right, and that right has been violated, do the laws cease to deserve this high appellation if the laws furnish no
of his country afford him a remedy? remedy for the violation of a vested legal right.

Page 5 U. S. 163 If this obloquy is to be cast on the jurisprudence of our country,
it must arise from the peculiar character of the case.
The very essence of civil liberty certainly consists in the right of
every individual to claim the protection of the laws whenever It behooves us, then, to inquire whether there be in its
he receives an injury. One of the first duties of government is composition any ingredient which shall exempt from legal
to afford that protection. In Great Britain, the King himself is investigation or exclude the injured party from legal redress. In
sued in the respectful form of a petition, and he never fails to pursuing this inquiry, the first question which presents itself is
comply with the judgment of his court. whether this can be arranged

In the third volume of his Commentaries, page 23, Blackstone Page 5 U. S. 164
states two cases in which a remedy is afforded by mere
operation of law. with that class of cases which come under the description of
damnum absque injuria -- a loss without an injury.
"In all other cases," he says,
This description of cases never has been considered, and, it is
"it is a general and indisputable rule that where there is a legal believed, never can be considered, as comprehending offices of
right, there is also a legal remedy by suit or action at law trust, of honour or of profit. The office of justice of peace in the
whenever that right is invaded." District of Columbia is such an office; it is therefore worthy of
the attention and guardianship of the laws. It has received that
And afterwards, page 109 of the same volume, he says, attention and guardianship. It has been created by special act
of Congress, and has been secured, so far as the laws can give
security to the person appointed to fill it, for five years. It is not a subject is presumed to be impossible, Blackstone, Vol. III. p.
then on account of the worthlessness of the thing pursued that 255, says,
the injured party can be alleged to be without remedy.
"but injuries to the rights of property can scarcely be
Is it in the nature of the transaction? Is the act of delivering or committed by the Crown without the intervention of its
withholding a commission to be considered as a mere political officers, for whom, the law, in matters of right, entertains no
act belonging to the Executive department alone, for the respect or delicacy, but furnishes various methods of detecting
performance of which entire confidence is placed by our the errors and misconduct of those agents by whom the King
Constitution in the Supreme Executive, and for any misconduct has been deceived and induced to do a temporary injustice."
respecting which the injured individual has no remedy?
By the act passed in 1796, authorizing the sale of the lands
That there may be such cases is not to be questioned. but that above the mouth of Kentucky river, the purchaser, on paying
every act of duty to be performed in any of the great his purchase money, becomes completely entitled to the
departments of government constitutes such a case is not to be property purchased, and, on producing to the Secretary of State
admitted. the receipt of the treasurer upon a certificate required by the
law, the President of the United States is authorized to grant
By the act concerning invalids, passed in June, 1794, the him a patent. It is further enacted that all patents shall be
Secretary at War is ordered to place on the pension list all countersigned by the Secretary of State, and recorded in his
persons whose names are contained in a report previously office. If the Secretary of State should choose to withhold this
made by him to Congress. If he should refuse to do so, would patent, or, the patent being lost, should refuse a copy of it, can
the wounded veteran be without remedy? Is it to be contended it be imagined that the law furnishes to the injured person no
that where the law, in precise terms, directs the performance remedy?
of an act in which an individual is interested, the law is
incapable of securing obedience to its mandate? Is it on account It is not believed that any person whatever would attempt to
of the character of the person against whom the complaint is maintain such a proposition.
made? Is it to be contended that the heads of departments are
not amenable to the laws of their country? It follows, then, that the question whether the legality of an act
of the head of a department be examinable in a court of justice
Whatever the practice on particular occasions may be, the or not must always depend on the nature of that act.
theory of this principle will certainly never be maintained.
If some acts be examinable and others not, there must be some
Page 5 U. S. 165 rule of law to guide the Court in the exercise of its jurisdiction.

No act of the Legislature confers so extraordinary a privilege, In some instances, there may be difficulty in applying the rule
nor can it derive countenance from the doctrines of the to particular cases; but there cannot, it is believed, be much
common law. After stating that personal injury from the King to difficulty in laying down the rule.
 or legal discretion, nothing can be more perfectly clear than
By the Constitution of the United States, the President is that their acts are only politically examinable. But where a
invested with certain important political powers, in the specific duty is assigned by law, and individual rights depend
upon the performance of that duty, it seems equally clear that
Page 5 U. S. 166 the individual who considers himself injured has a right to
resort to the laws of his country for a remedy.
exercise of which he is to use his own discretion, and is
accountable only to his country in his political character and to If this be the rule, let us inquire how it applies to the case under
his own conscience. To aid him in the performance of these the consideration of the Court.
duties, he is authorized to appoint certain officers, who act by
his authority and in conformity with his orders. Page 5 U. S. 167

In such cases, their acts are his acts; and whatever opinion may The power of nominating to the Senate, and the power of
be entertained of the manner in which executive discretion appointing the person nominated, are political powers, to be
may be used, still there exists, and can exist, no power to exercised by the President according to his own discretion.
control that discretion. The subjects are political. They respect When he has made an appointment, he has exercised his whole
the nation, not individual rights, and, being entrusted to the power, and his discretion has been completely applied to the
Executive, the decision of the Executive is conclusive. The case. If, by law, the officer be removable at the will of the
application of this remark will be perceived by adverting to the President, then a new appointment may be immediately made,
act of Congress for establishing the Department of Foreign and the rights of the officer are terminated. But as a fact which
Affairs. This officer, as his duties were prescribed by that act, is has existed cannot be made never to have existed, the
to conform precisely to the will of the President. He is the mere appointment cannot be annihilated, and consequently, if the
organ by whom that will is communicated. The acts of such an officer is by law not removable at the will of the President, the
officer, as an officer, can never be examinable by the Courts. rights he has acquired are protected by the law, and are not
resumable by the President. They cannot be extinguished by
But when the Legislature proceeds to impose on that officer Executive authority, and he has the privilege of asserting them
other duties; when he is directed peremptorily to perform in like manner as if they had been derived from any other
certain acts; when the rights of individuals are dependent on source.
the performance of those acts; he is so far the officer of the law,
is amenable to the laws for his conduct, and cannot at his The question whether a right has vested or not is, in its nature,
discretion, sport away the vested rights of others. judicial, and must be tried by the judicial authority. If, for
example, Mr. Marbury had taken the oaths of a magistrate and
The conclusion from this reasoning is that, where the heads of proceeded to act as one, in consequence of which a suit had
departments are the political or confidential agents of the been instituted against him in which his defence had depended
Executive, merely to execute the will of the President, or rather on his being a magistrate; the validity of his appointment must
to act in cases in which the Executive possesses a constitutional have been determined by judicial authority.

So, if he conceives that, by virtue of his appointment, he has a 1. The nature of the writ applied for, and
legal right either to the commission which has been made out
for him or to a copy of that commission, it is equally a question 2. The power of this court.
examinable in a court, and the decision of the Court upon it
must depend on the opinion entertained of his appointment. 1. The nature of the writ.

That question has been discussed, and the opinion is that the Blackstone, in the third volume of his Commentaries, page 110,
latest point of time which can be taken as that at which the defines a mandamus to be
appointment was complete and evidenced was when, after the
signature of the President, the seal of the United States was "a command issuing in the King's name from the Court of King's
affixed to the commission. Bench, and directed to any person, corporation, or inferior
court of judicature within the King's dominions requiring them
It is then the opinion of the Court: to do some particular thing therein specified which appertains
to their office and duty, and which the Court of King's Bench has
1. That, by signing the commission of Mr. Marbury, the previously determined, or at least supposes, to be consonant to
President of the United States appointed him a justice right and justice."

Page 5 U. S. 168 Lord Mansfield, in 3 Burrows, 1266, in the case of The King v.
Baker et al., states with much precision and explicitness the
of peace for the County of Washington in the District of cases in which this writ may be used.
Columbia, and that the seal of the United States, affixed thereto
by the Secretary of State, is conclusive testimony of the verity "Whenever," says that very able judge,
of the signature, and of the completion of the appointment,
and that the appointment conferred on him a legal right to the "there is a right to execute an office, perform a service, or
office for the space of five years. exercise a franchise (more especially if it be in a matter of public
concern or attended with profit), and a person is kept out of
2. That, having this legal title to the office, he has a consequent possession, or dispossessed of such right, and
right to the commission, a refusal to deliver which is a plain
violation of that right, for which the laws of his country afford Page 5 U. S. 169
him a remedy.
has no other specific legal remedy, this court ought to assist by
It remains to be inquired whether, mandamus, upon reasons of justice, as the writ expresses, and
upon reasons of public policy, to preserve peace, order and
3. He is entitled to the remedy for which he applies. This good government."
depends on:
In the same case, he says, hesitation with respect to the propriety of entering into such
investigation. Impressions are often received without much
"this writ ought to be used upon all occasions where the law reflection or examination, and it is not wonderful that, in such
has established no specific remedy, and where in justice and a case as this, the assertion by an individual of his legal claims
good government there ought to be one." in a court of justice, to which claims it is the duty of that court
to attend, should, at first view, be considered
In addition to the authorities now particularly cited, many
others were relied on at the bar which show how far the Page 5 U. S. 170
practice has conformed to the general doctrines that have been
just quoted. by some as an attempt to intrude into the cabinet and to
intermeddle with the prerogatives of the Executive.
This writ, if awarded, would be directed to an officer of
government, and its mandate to him would be, to use the It is scarcely necessary for the Court to disclaim all pretensions
words of Blackstone, to such a jurisdiction. An extravagance so absurd and excessive
could not have been entertained for a moment. The province
"to do a particular thing therein specified, which appertains to of the Court is solely to decide on the rights of individuals, not
his office and duty and which the Court has previously to inquire how the Executive or Executive officers perform
determined or at least supposes to be consonant to right and duties in which they have a discretion. Questions, in their
justice." nature political or which are, by the Constitution and laws,
submitted to the Executive, can never be made in this court.
Or, in the words of Lord Mansfield, the applicant, in this case,
has a right to execute an office of public concern, and is kept But, if this be not such a question; if so far from being an
out of possession of that right. intrusion into the secrets of the cabinet, it respects a paper
which, according to law, is upon record, and to a copy of which
These circumstances certainly concur in this case. the law gives a right, on the payment of ten cents; if it be no
intermeddling with a subject over which the Executive can be
Still, to render the mandamus a proper remedy, the officer to considered as having exercised any control; what is there in the
whom it is to be directed must be one to whom, on legal exalted station of the officer which shall bar a citizen from
principles, such writ may be directed, and the person applying asserting in a court of justice his legal rights, or shall forbid a
for it must be without any other specific and legal remedy. court to listen to the claim or to issue a mandamus directing the
performance of a duty not depending on Executive discretion,
1. With respect to the officer to whom it would be directed. The but on particular acts of Congress and the general principles of
intimate political relation, subsisting between the President of law?
the United States and the heads of departments, necessarily
renders any legal investigation of the acts of one of those high If one of the heads of departments commits any illegal act
officers peculiarly irksome, as well as delicate, and excites some under colour of his office by which an individual sustains an
injury, it cannot be pretended that his office alone exempts him It must be well recollected that, in 1792, an act passed,
from being sued in the ordinary mode of proceeding, and being directing the secretary at war to place on the pension list such
compelled to obey the judgment of the law. How then can his disabled officers and soldiers as should be reported to him by
office exempt him from this particular mode of deciding on the the Circuit Courts, which act, so far as the duty was imposed on
legality of his conduct if the case be such a case as would, were the Courts, was deemed unconstitutional; but some of the
any other individual the party complained of, authorize the judges, thinking that the law might be executed by them in the
process? character of commissioners, proceeded to act and to report in
that character.
It is not by the office of the person to whom the writ is directed,
but the nature of the thing to be done, that the propriety or This law being deemed unconstitutional at the circuits, was
impropriety of issuing a mandamus is to be determined. Where repealed, and a different system was established; but the
the head of a department acts in a case in which Executive question whether those persons who had been reported by the
discretion is to be exercised, in which he is the mere organ of judges, as commissioners, were entitled, in consequence of
Executive will, it is that report, to be placed on the pension list was a legal
question, properly determinable in the Courts, although the act
Page 5 U. S. 171 of placing such persons on the list was to be performed by the
head of a department.
again repeated, that any application to a court to control, in any
respect, his conduct, would be rejected without hesitation. That this question might be properly settled, Congress passed
an act in February, 1793, making it the duty of the Secretary of
But where he is directed by law to do a certain act affecting the War, in conjunction with the Attorney General, to take such
absolute rights of individuals, in the performance of which he is measures as might be necessary to obtain an adjudication of
not placed under the particular direction of the President, and the Supreme Court of the United
the performance of which the President cannot lawfully forbid,
and therefore is never presumed to have forbidden -- as for Page 5 U. S. 172
example, to record a commission, or a patent for land, which
has received all the legal solemnities; or to give a copy of such States on the validity of any such rights, claimed under the act
record -- in such cases, it is not perceived on what ground the aforesaid.
Courts of the country are further excused from the duty of
giving judgment that right to be done to an injured individual After the passage of this act, a mandamus was moved for, to be
than if the same services were to be performed by a person not directed to the Secretary of War, commanding him to place on
the head of a department. the pension list a person stating himself to be on the report of
the judges.
This opinion seems not now for the first time to be taken up in
this country. There is, therefore, much reason to believe that this mode of
trying the legal right of the complainant was deemed by the
head of a department, and by the highest law officer of the appointed, he has a right to the commission which the
United States, the most proper which could be selected for the Secretary has received from the President for his use. The act
purpose. of Congress does not, indeed, order the Secretary of State to
send it to him, but it is placed in his hands for the person
When the subject was brought before the Court, the decision entitled to it, and cannot be more lawfully withheld by him than
was not that a mandamus would not lie to the head of a by another person.
department directing him to perform an act enjoined by law, in
the performance of which an individual had a vested interest, It was at first doubted whether the action of detinue was not a
but that a mandamus ought not to issue in that case -- the specific legal remedy for the commission which has been
decision necessarily to be made if the report of the withheld from Mr. Marbury, in which case a mandamus would
commissioners did not confer on the applicant a legal right. be improper. But this doubt has yielded to the consideration
that the judgment in detinue is for the thing itself, or its value.
The judgment in that case is understood to have decided the The value of a public office not to be sold is incapable of being
merits of all claims of that description, and the persons, on the ascertained, and the applicant has a right to the office itself, or
report of the commissioners, found it necessary to pursue the to nothing. He will obtain the office by obtaining the
mode prescribed by the law subsequent to that which had been commission or a copy of it from the record.
deemed unconstitutional in order to place themselves on the
pension list. This, then, is a plain case of a mandamus, either to deliver the
commission or a copy of it from the record, and it only remains
The doctrine, therefore, now advanced is by no means a novel to be inquired:
one.
Whether it can issue from this Court.
It is true that the mandamus now moved for is not for the
performance of an act expressly enjoined by statute. The act to establish the judicial courts of the United States
authorizes the Supreme Court
It is to deliver a commission, on which subjects the acts of
Congress are silent. This difference is not considered as "to issue writs of mandamus, in cases warranted by the
affecting the case. It has already been stated that the applicant principles and usages of law, to any courts appointed, or
has, to that commission, a vested legal right of which the persons holding office, under the authority of the United
Executive cannot deprive him. He has been appointed to an States."
office from which he is not removable at the will of the
Executive, and, being so The Secretary of State, being a person, holding an office under
the authority of the United States, is precisely within the letter
Page 5 U. S. 173 of the description, and if this Court is not authorized to issue a
writ of mandamus to such an officer, it must be because the law
is unconstitutional, and therefore absolutely incapable of
conferring the authority and assigning the duties which its which it should be vested. The subsequent part of the section
words purport to confer and assign. is mere surplusage -- is entirely without meaning -- if such is to
be the construction. If Congress remains at liberty to give this
The Constitution vests the whole judicial power of the United court appellate jurisdiction where the Constitution has
States in one Supreme Court, and such inferior courts as declared their jurisdiction shall be original, and original
Congress shall, from time to time, ordain and establish. This jurisdiction where the Constitution has declared it shall be
power is expressly extended to all cases arising under the laws appellate, the distribution of jurisdiction made in the
of the United States; and consequently, in some form, may be Constitution, is form without substance.
exercised over the present
Affirmative words are often, in their operation, negative of
Page 5 U. S. 174 other objects than those affirmed, and, in this case, a negative
or exclusive sense must be given to them or they have no
case, because the right claimed is given by a law of the United operation at all.
States.
It cannot be presumed that any clause in the Constitution is
In the distribution of this power. it is declared that intended to be without effect, and therefore such construction
is inadmissible unless the words require it.
"The Supreme Court shall have original jurisdiction in all cases
affecting ambassadors, other public ministers and consuls, and Page 5 U. S. 175
those in which a state shall be a party. In all other cases, the
Supreme Court shall have appellate jurisdiction." If the solicitude of the Convention respecting our peace with
foreign powers induced a provision that the Supreme Court
It has been insisted at the bar, that, as the original grant of should take original jurisdiction in cases which might be
jurisdiction to the Supreme and inferior courts is general, and supposed to affect them, yet the clause would have proceeded
the clause assigning original jurisdiction to the Supreme Court no further than to provide for such cases if no further
contains no negative or restrictive words, the power remains to restriction on the powers of Congress had been intended. That
the Legislature to assign original jurisdiction to that Court in they should have appellate jurisdiction in all other cases, with
other cases than those specified in the article which has been such exceptions as Congress might make, is no restriction
recited, provided those cases belong to the judicial power of unless the words be deemed exclusive of original jurisdiction.
the United States.
When an instrument organizing fundamentally a judicial system
If it had been intended to leave it in the discretion of the divides it into one Supreme and so many inferior courts as the
Legislature to apportion the judicial power between the Legislature may ordain and establish, then enumerates its
Supreme and inferior courts according to the will of that body, powers, and proceeds so far to distribute them as to define the
it would certainly have been useless to have proceeded further jurisdiction of the Supreme Court by declaring the cases in
than to have defined the judicial power and the tribunals in which it shall take original jurisdiction, and that in others it shall
take appellate jurisdiction, the plain import of the words seems
to be that, in one class of cases, its jurisdiction is original, and The question whether an act repugnant to the Constitution can
not appellate; in the other, it is appellate, and not original. ,If become the law of the land is a question deeply interesting to
any other construction would render the clause inoperative, the United States, but, happily, not of an intricacy proportioned
that is an additional reason for rejecting such other to its interest. It seems only necessary to recognise certain
construction, and for adhering to the obvious meaning. principles, supposed to have been long and well established, to
decide it.
To enable this court then to issue a mandamus, it must be
shown to be an exercise of appellate jurisdiction, or to be That the people have an original right to establish for their
necessary to enable them to exercise appellate jurisdiction. future government such principles as, in their opinion, shall
most conduce to their own happiness is the basis on which the
It has been stated at the bar that the appellate jurisdiction may whole American fabric has been erected. The exercise of this
be exercised in a variety of forms, and that, if it be the will of original right is a very great exertion; nor can it nor ought it to
the Legislature that a mandamus should be used for that be frequently repeated. The principles, therefore, so
purpose, that will must be obeyed. This is true; yet the established are deemed fundamental. And as the authority
jurisdiction must be appellate, not original. from which they proceed, is supreme, and can seldom act, they
are designed to be permanent.
It is the essential criterion of appellate jurisdiction that it revises
and corrects the proceedings in a cause already instituted, and This original and supreme will organizes the government and
does not create that case. Although, therefore, a mandamus assigns to different departments their respective powers. It
may be directed to courts, yet to issue such a writ to an officer may either stop here or establish certain limits not to be
for the delivery of a paper is, in effect, the same as to sustain transcended by those departments.
an original action for that paper, and therefore seems not to
belong to The Government of the United States is of the latter
description. The powers of the Legislature are defined and
Page 5 U. S. 176 limited; and that those limits may not be mistaken or forgotten,
the Constitution is written. To what purpose are powers
appellate, but to original jurisdiction. Neither is it necessary in limited, and to what purpose is that limitation committed to
such a case as this to enable the Court to exercise its appellate writing, if these limits may at any time be passed by those
jurisdiction. intended to be restrained? The distinction between a
government with limited and unlimited powers is abolished if
The authority, therefore, given to the Supreme Court by the act those limits do not confine the persons on whom they are
establishing the judicial courts of the United States to issue imposed, and if acts prohibited
writs of mandamus to public officers appears not to be
warranted by the Constitution, and it becomes necessary to Page 5 U. S. 177
inquire whether a jurisdiction so conferred can be exercised.
and acts allowed are of equal obligation. It is a proposition too It is emphatically the province and duty of the Judicial
plain to be contested that the Constitution controls any Department to say what the law is. Those who apply the rule to
legislative act repugnant to it, or that the Legislature may alter particular cases must, of necessity, expound and interpret that
the Constitution by an ordinary act. rule. If two laws conflict with each other, the Courts must
decide on the operation of each.
Between these alternatives there is no middle ground. The
Constitution is either a superior, paramount law, unchangeable Page 5 U. S. 178
by ordinary means, or it is on a level with ordinary legislative
acts, and, like other acts, is alterable when the legislature shall So, if a law be in opposition to the Constitution, if both the law
please to alter it. and the Constitution apply to a particular case, so that the Court
must either decide that case conformably to the law,
If the former part of the alternative be true, then a legislative disregarding the Constitution, or conformably to the
act contrary to the Constitution is not law; if the latter part be Constitution, disregarding the law, the Court must determine
true, then written Constitutions are absurd attempts on the which of these conflicting rules governs the case. This is of the
part of the people to limit a power in its own nature illimitable. very essence of judicial duty.

Certainly all those who have framed written Constitutions If, then, the Courts are to regard the Constitution, and the
contemplate them as forming the fundamental and paramount Constitution is superior to any ordinary act of the Legislature,
law of the nation, and consequently the theory of every such the Constitution, and not such ordinary act, must govern the
government must be that an act of the Legislature repugnant case to which they both apply.
to the Constitution is void.
Those, then, who controvert the principle that the Constitution
This theory is essentially attached to a written Constitution, and is to be considered in court as a paramount law are reduced to
is consequently to be considered by this Court as one of the the necessity of maintaining that courts must close their eyes
fundamental principles of our society. It is not, therefore, to be on the Constitution, and see only the law.
lost sight of in the further consideration of this subject.
This doctrine would subvert the very foundation of all written
If an act of the Legislature repugnant to the Constitution is void, Constitutions. It would declare that an act which, according to
does it, notwithstanding its invalidity, bind the Courts and the principles and theory of our government, is entirely void, is
oblige them to give it effect? Or, in other words, though it be yet, in practice, completely obligatory. It would declare that, if
not law, does it constitute a rule as operative as if it was a law? the Legislature shall do what is expressly forbidden, such act,
This would be to overthrow in fact what was established in notwithstanding the express prohibition, is in reality effectual.
theory, and would seem, at first view, an absurdity too gross to It would be giving to the Legislature a practical and real
be insisted on. It shall, however, receive a more attentive omnipotence with the same breath which professes to restrict
consideration. their powers within narrow limits. It is prescribing limits, and
declaring that those limits may be passed at pleasure.
 The Constitution declares that "no bill of attainder or ex post
That it thus reduces to nothing what we have deemed the facto law shall be passed."
greatest improvement on political institutions -- a written
Constitution, would of itself be sufficient, in America where If, however, such a bill should be passed and a person should
written Constitutions have been viewed with so much be prosecuted under it, must the Court condemn to death
reverence, for rejecting the construction. But the peculiar those victims whom the Constitution endeavours to preserve?
expressions of the Constitution of the United States furnish
additional arguments in favour of its rejection. "No person,' says the Constitution, 'shall be convicted of
treason unless on the testimony of two witnesses to the same
The judicial power of the United States is extended to all cases overt act, or on confession in open court."
arising under the Constitution.
Here. the language of the Constitution is addressed especially
Page 5 U. S. 179 to the Courts. It prescribes, directly for them, a rule of evidence
not to be departed from. If the Legislature should change that
Could it be the intention of those who gave this power to say rule, and declare one witness, or a confession out of court,
that, in using it, the Constitution should not be looked into? sufficient for conviction, must the constitutional principle yield
That a case arising under the Constitution should be decided to the legislative act?
without examining the instrument under which it arises?
From these and many other selections which might be made, it
This is too extravagant to be maintained. is apparent that the framers of the Constitution

In some cases then, the Constitution must be looked into by the Page 5 U. S. 180
judges. And if they can open it at all, what part of it are they
forbidden to read or to obey? contemplated that instrument as a rule for the government of
courts, as well as of the Legislature.
There are many other parts of the Constitution which serve to
illustrate this subject. Why otherwise does it direct the judges to take an oath to
support it? This oath certainly applies in an especial manner to
It is declared that "no tax or duty shall be laid on articles their conduct in their official character. How immoral to impose
exported from any State." Suppose a duty on the export of it on them if they were to be used as the instruments, and the
cotton, of tobacco, or of flour, and a suit instituted to recover knowing instruments, for violating what they swear to support!
it. Ought judgment to be rendered in such a case? ought the
judges to close their eyes on the Constitution, and only see the The oath of office, too, imposed by the Legislature, is
law? completely demonstrative of the legislative opinion on this
subject. It is in these words:

 "I do solemnly swear that I will administer justice without
respect to persons, and do equal right to the poor and to the
rich; and that I will faithfully and impartially discharge all the
duties incumbent on me as according to the best of my abilities
and understanding, agreeably to the Constitution and laws of
the United States."

Why does a judge swear to discharge his duties agreeably to the
Constitution of the United States if that Constitution forms no
rule for his government? if it is closed upon him and cannot be
inspected by him?

If such be the real state of things, this is worse than solemn
mockery. To prescribe or to take this oath becomes equally a
crime.

It is also not entirely unworthy of observation that, in declaring
what shall be the supreme law of the land, the Constitution
itself is first mentioned, and not the laws of the United States
generally, but those only which shall be made in pursuance of
the Constitution, have that rank.

Thus, the particular phraseology of the Constitution of the
United States confirms and strengthens the principle, supposed
to be essential to all written Constitutions, that a law repugnant
to the Constitution is void, and that courts, as well as other
departments, are bound by that instrument.

The rule must be discharged.

4. PEOPLE v. POMAR she was entitled as her regular wages corresponding to thirty days
before and thirty days after her delivery and confinement which
G.R. No. L-22008 November 3, 1924 took place on the 12th day of August, 1923, despite and over the
demands made by her, the said Macaria Fajardo, upon said
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, accused, to do so.
vs.
JULIO POMAR, defendant-appellant. To said complaint, the defendant demurred, alleging that the facts
therein contained did not constitute an offense. The demurrer was
Araneta and Zaragoza for appellant. overruled, whereupon the defendant answered and admitted at
Attorney-General Villa-Real for appellee. the trial all of the allegations contained in the complaint, and
contended that the provisions of said Act No. 3071, upon which the
complaint was based were illegal, unconstitutional and void.

JOHNSON, J.: Upon a consideration of the facts charged in the complaint and
admitted by the defendant, the Honorable C. A. Imperial, judge,
The only question presented by this appeal is whether or not the found the defendant guilty of the alleged offense described in the
provisions of sections 13 and 15 of Act No. 3071 are a reasonable complaint, and sentenced him to pay a fine of P50, in accordance
and lawful exercise of the police power of the state. with the provisions of section 15 of said Act, to suffer subsidiary
imprisonment in case of insolvency, and to pay the costs.
It appears from the record that on the 26th day of October, 1923,
the prosecuting attorney of the City of Manila presented a From that sentence the defendant appealed, and now makes the
complaint in the Court of First Instance, accusing the defendant of following assignments of error: That the court erred in overruling
a violation of section 13 in connection with section 15 of Act No. the demurrer; in convicting him of the crime charged in the
3071 of the Philippine Legislature. The complaint alleged: information; and in not declaring section 13 of Act No. 3071,
unconstitutional:
That on or about the 27th day of August, 1923, and sometime prior
thereto, in the City of Manila, Philippine Islands, the said accused, Section 13 of Act No. 3071 is as follows:
being the manager and person in charge of La Flor de la Isabela, a
tobacco factory pertaining to La Campania General de Tabacos de Every person, firm or corporation owning or managing a factory,
Filipinas, a corporation duly authorized to transact business in said shop or place of labor of any description shall be obliged to grant
city, and having, during the year 1923, in his employ and service as to any woman employed by it as laborer who may be pregnant,
cigar-maker in said factory, a woman by the name of Macaria thirty days vacation with pay before and another thirty days after
Fajardo, whom he granted vacation leave which began on the 16th confinement: Provided, That the employer shall not discharge such
day of July, 1923, by reason of her pregnancy, did then and there laborer without just cause, under the penalty of being required to
willfully, unlawfully, and feloniously fail and refuse to pay to said pay to her wages equivalent to the total of two months counted
woman the sum of eighty pesos (P80), Philippine currency, to which from the day of her discharge.
 One hundred years ago, for example, it is doubtful whether the
Section 15 of the same Act is as follows: most eminent jurist, or court, or legislature would have for a
moment thought that, by any possibility, a law providing for the
Any person, firm or corporation violating any of the provisions of destruction of a building in which alcoholic liquors were sold, was
this Act shall be punished by a fine of not less than fifty pesos nor within a reasonable and lawful exercise of the police power.
more than two hundred and fifty, or by imprisonment for not less (Mugler vs. Kansas, 123 U. S., 623.) The development of civilization,
than ten days nor more than six months, or both, in the discretion the rapidly increasing population, the growth of public opinion,
of the court. with a desire on the part of the masses and of the government to
look after and care for the interests of the individuals of the state,
In the case of firms or corporations, the presidents, directors or have brought within the police power of the state many questions
managers thereof or, in their default, the persons acting in their for regulation which formerly were not so considered. In a
stead, shall be criminally responsible for each violation of the republican form of government public sentiment wields a
provisions of this Act. tremendous influence upon what the state may or may not do, for
the protection of the health and public morals of the people. Yet,
Said section 13 was enacted by the Legislature of the Philippine neither public sentiment, nor a desire to ameliorate the public
Islands in the exercise of its supposed police power, with the morals of the people of the state will justify the promulgation of a
praiseworthy purpose of safeguarding the health of pregnant law which contravenes the express provisions of the fundamental
women laborers in "factory, shop or place of labor of any law of the people the constitutional of the state.
description," and of insuring to them, to a certain extent,
reasonable support for one month before and one month after A definition of the police power of the state must depend upon the
their delivery. The question presented for decision by the appeal is particular law and the particular facts to which it is to be applied.
whether said Act has been adopted in the reasonable and lawful The many definitions which have been given by the highest courts
exercise of the police power of the state. may be examined, however, for the purpose of giving us a compass
or guide to assist us in arriving at a correct conclusion in the
In determining whether a particular law promulgated under the particular case before us. Sir William Blackstone, one of the
police power of the state is, in fact, within said power, it becomes greatest expounders of the common law, defines the police power
necessary first, to determine what that power is, its limits and as "the due regulation and domestic order of the kingdom,
scope. Literally hundreds of decisions have been promulgated in whereby the inhabitants of a state, like members of a well-
which definitions of the police power have been attempted. An governed family, are bound to conform their general behavior to
examination of all of said decisions will show that the definitions the rules of propriety, good neighborhood, and good manners, and
are generally limited to particular cases and examples, which are as to be decent, industrious, and inoffensive in their respective
varied as they are numerous. stations." (4 Blackstone's Commentaries, 162.)

By reason of the constant growth of public opinion in a developing Mr. Jeremy Bentham, in his General View of Public Offenses, gives
civilization, the term "police power" has never been, and we do not us the following definition: "Police is in general a system of
believe can be, clearly and definitely defined and circumscribed. precaution, either for the prevention of crimes or of calamities. Its
business may be distributed into eight distinct branches: (1) Police having an equal right to the enjoyment of their property nor
for the prevention of offenses; (2) police for the prevention of injurious to the rights of the community. All property in this
calamities; (3) police for the prevention of endemic diseased; (4) commonwealth, as well that in the interior as that bordering on
police of charity; (5) police of interior communications; (6) police of tide waters, is derived directly or indirectly from the government
public amusements; (7) police for recent intelligence; (8) police for and held subject to those general regulations, which are necessary
registration." to the common good and general welfare. Rights of property, like
all other social and conventional rights, are subject to such
Mr. Justice Cooley, perhaps the greatest expounder of the reasonable limitations in their enjoyment, as shall prevent them
American Constitution, says: "The police power is the power vested from being injurious, and to such reasonable restraints and
in the legislature by the constitution to make, ordain, and establish regulations established by law, as the legislature, under the
all manner of wholesome and reasonable laws, statutes, and governing and controlling power vested in them by the
ordinances, either with penalties or without, not repugnant to the constitution, may think necessary and expedient." Mr. Justice Shaw
constitution, as they shall judge to be for the good and welfare of further adds: ". . . The power we allude to is rather the police
the commonwealth, and of the subject of the same. . . ." (Cooley's power, the power vested in the legislature by the constitution, to
Constitutional Limitations, p. 830.) make, ordain and establish all manner of wholesome and
reasonable laws, statutes and ordinances, either with penalties or
In the case of Commonwealth of Massachusetts vs. Alger (7 without, not repugnant to the constitution, as they shall judge to
Cushing, 53), we find a very comprehensive definition of the police be for the good and welfare of the commonwealth, and of the
power of the state. In that case it appears that the colony of subjects of the same."
Massachusetts in 1647 adopted an Act to preserve the harbor of
Boston and to prevent encroachments therein. The defendant This court has, in the case of Case vs. Board of Health and Heiser
unlawfully erected, built, and established in said harbor, and (24 Phil., 250), in discussing the police power of the state, had
extended beyond said lines and into and over the tide water of the occasion to say: ". . . It is a well settled principle, growing out of the
Commonwealth a certain superstructure, obstruction and nature of well-ordered and civilized society, that every holder of
encumbrance. Said Act provided a penalty for its violation of a fine property, however absolute and unqualified may be his title, holds
of not less than $1,000 nor more than $5,000 for every offense, and it under the implied liability that his use of it shall not be injurious
for the destruction of said buildings, or structures, or obstructions to the equal enjoyment of others having an equal right to the
as a public nuisance. Alger was arrested and placed on trial for enjoyment of their property, nor injurious to the rights of the
violation of said Act. His defense was that the Act of 1647 was community. All property in the state is held subject to its general
illegal and void, because if permitted the destruction of private regulations, which are necessary to the common good and general
property without compensation. Mr. Justice Shaw, speaking for the welfare. Rights of property, like all other social and conventional
court in that said, said: "We think it is a settled principle, growing rights, are subject to such reasonable limitations in their enjoyment
out of the nature of well-ordered civil society, that every holder of as shall prevent them from being injurious, and to such reasonable
property, however absolute and unqualified may be his title, holds restraints and regulations, established by law, as the legislature,
it under the implied liability that his use of it may be so regulated, under the governing and controlling power vested in them by the
that it shall not be injurious to the equal environment of others constitution, may think necessary and expedient. The state, under
the police power is possessed with plenary power to deal with all enforcement of the "Minimum Wage Act" would deprive her of her
matters relating to the general health, morals, and safety of the employment and wages without due process of law, and that she
people, so long as it does not contravene any positive inhibition of could not get as good a position anywhere else. The
the organic law and providing that such power is not exercised in constitutionality of the Act was squarely presented to the Supreme
such a manner as to justify the interference of the courts to prevent Court of the United States for decision.
positive wrong and oppression."
The Supreme Court of the United States held that said Act was void
Many other definitions have been given not only by the Supreme on the ground that the right to contract about one's own affairs
Court of the United States but by the Supreme Court of every state was a part of the liberty of the individual under the constitution,
of the Union. The foregoing definitions, however, cover the general and that while there was no such thing as absolute freedom of
field of all of the definitions, found in jurisprudence. From all of the contract, and it was necessary subject to a great variety of
definitions we conclude that it is much easier to perceive and restraints, yet none of the exceptional circumstances, which at
realize the existence and sources of the police power than to times justify a limitation upon one's right to contract for his own
exactly mark its boundaries, or prescribe limits to its exercise by the services, applied in the particular case.
legislative department of the government.
In the course of the decision in that case (Adkins vs. Children's
The most recent definition which has been called to our attention Hospital of the District of Columbia, 261 U. S., 525), Mr. Justice
is that found in the case of Adkins vs. Children's Hospital of the Sutherland, after a statement of the fact and making reference to
District of Columbia (261 U. S., 525). In that case the controversy the particular law, said:
arose in this way: A children's hospital employed a number of
women at various rates of wages, which were entirely satisfactory The statute now under consideration is attacked upon the ground
to both the hospital and the employees. A hotel company that it authorizes an unconstitutional interference with the
employed a woman as elevator operator at P35 per month and two freedom of contract including within the guarantees of the due
meals a day under healthy and satisfactory conditions, and she did process clause of the 5th Amendment. That the right to contract
not risk to lose her position as she could not earn so much about one's affairs is a part of the liberty of the individual protected
anywhere else. Her wages were less than the minimum fixed by a by this clause is settled by the decision of this court, and is no longer
board created under a law for the purpose of fixing a minimum open to question. Within this liberty are contracts of employment
wage for women and children, with a penalty providing a of labor. In making such contracts, generally speaking, the parties
punishment for a failure or refusal to pay the minimum wage fixed. have an equal right to obtain from each other the best terms they
The wage paid by the hotel company of P35 per month and two can as the result of private bargaining. (Allgeyer vs. Louisiana, 165
meals a day was less than the minimum wage fixed by said board. U. S., 578; 591; Adair vs. United States, 208 U. S., 161; Muller vs.
By reason of the order of said board, the hotel company, was about Oregon, 208 U. S., 412, 421.)
to discharge her, as it was unwilling to pay her more and could not
give her employment at that salary without risking the penalty of a x x x x x x x x x
fine and imprisonment under the law. She brought action to enjoin
the hotel company from discharging her upon the ground that the
The law takes account of the necessities of only one party to the necessities of the employee are alone considered, and these arise
contract. It ignores the necessities of the employer by compelling outside of the employment, are the same when there is no
him to pay not less than a certain sum, not only whether the employment, and as great in one occupation as in another. . . . In
employee is capable of earning it, but irrespective of the ability of principle, there can be no difference between the case of selling
his business to sustain the burden, generously leaving him, of labor and the case of selling goods. If one goes to the butcher, the
course, the privilege of abandoning his business as an alternative baker, or grocer to buy food, he is morally entitled to obtain the
for going on at a loss. Within the limits of the minimum sum, he is worth of his money, but he is not entitle to more. If what he gets is
precluded, under penalty of fine and imprisonment, from adjusting worth what he pays, he is not justified in demanding more simply
compensation to the differing merits of his employees. It compels because he needs more; and the shopkeeper, having dealt fairly
him to pay at least the sum fixed in any event, because the and honestly in that transaction, is not concerned in any peculiar
employee needs it, but requires no service of equivalent value from sense with the question of his customer's necessities. Should a
the employee. It (the law) therefore undertakes to solve but one- statute undertake to vest in a commission power to determine the
half of the problem. The other half is the establishment of a quantity of food necessary for individual support, and require the
corresponding standard of efficiency; and this forms no part of the shopkeeper, if he sell to the individual at all, to furnish that quantity
policy of the legislation, although in practice the former half at not more than a fixed maximum, it would undoubtedly fall
without the latter must lead to ultimate failure, in accordance with before the constitutional test. The fallacy of any argument in
the inexorable law that no one can continue indefinitely to take out support of the validity of such a statute would be quickly exposed.
more than he puts in without ultimately exhausting the supply. The The argument in support of that now being considered is equally
law . . . takes no account of periods of distress and business fallacious, though the weakness of it may not be so plain. . . .
depression, or crippling losses, which may leave the employer
himself without adequate means of livelihood. To the extent that It has been said that the particular statute before us is required in
the sum fixed exceeds the fair value of the services rendered, it the interest of social justice for whose end freedom of contract may
amounts to a compulsory exaction from the employer for the lawfully be subjected to restraint. The liberty of the individual to do
support of a partially indigent person, for whose condition there as he pleases, even in innocent matters, is not absolute. That liberty
rests upon him no peculiar responsibility, and therefore, in effect, must frequently yield to the common good, and the line beyond
arbitrarily shifts to his shoulders a burden which, if it belongs to which the power of interference may not be pressed is neither
anybody, belongs to society as a whole. definite nor unalterable, may be made to move, within limits not
well defined, with changing needs and circumstances.
The failure of this state which, perhaps more than any other, puts
upon it the stamp of invalidity is that it exacts from the employer The late Mr. Justice Harlan, in the case of Adair vs. United States
an arbitrary payment for a purpose and upon a basis having no (208 U. S., 161, 174), said that the right of a person to sell his labor
casual connection with his business, or the contract, or the work upon such terms as he deems proper is, in its essence, the same as
the employee engages to do. The declared basis, as already pointed the right of the purchaser of labor to prescribe the conditions upon
out, is not the value of the service rendered, but the extraneous which he will accept such labor from the person offering to sell. In
circumstances that the employee needs to get a prescribed sum of all such particulars the employer and the employee have equality
money to insure her subsistence, health and morals. . . . The of right, and any legislation that disturbs that equality is an
arbitrary interference with the liberty of contract, which no performance of an innocent act criminal when the public health,
government can legally justify in a free land, under a constitution safety, comfort or welfare is not interfered with. The statute in
which provides that no person shall be deprived of his liberty question says that, if a man exercises his constitutional right to
without due process of law. terminate a contract with his employee, he shall, without a hearing,
be punished as for the commission of a crime.
Mr. Justice Pitney, in the case of Coppage vs. Kansas (235 U. S., 1,
14), speaking for the Supreme Court of the United States, said: ". . x x x x x x x x x
. Included in the right of personal liberty and the right of private
property partaking of the nature of each is the right to make Liberty includes not only the right to labor, but to refuse to labor,
contracts for the acquisition of property. Chief among such and, consequently, the right to contract to labor or for labor, and
contracts is that of personal employment, by which labor and other to terminate such contracts, and to refuse to make such contracts.
services are exchange for money or other forms of property. If this The legislature cannot prevent persons, who are sui juris, from
right be struck down or arbitrarily interfered with, there is a laboring, or from making such contracts as they may see fit to make
substantial impairment of liberty in the long established relative to their own lawful labor; nor has it any power by penal
constitutional sense. The right is as essential to the laborer as to laws to prevent any person, with or without cause, from refusing
the capitalist, to the poor as to the rich; for the vast majority of to employ another or to terminate a contract with him, subject only
persons have no other honest way to begin to acquire property, to the liability to respond in a civil action for an unwarranted refusal
save by working for money." to do that which has been agreed upon. Hence, we are of the
opinion that this Act contravenes those provisions of the state and
The right to liberty includes the right to enter into contracts and to Federal constitutions, which guarantee that no person shall be
terminate contracts. In the case of Gillespie vs. People (118 Ill., 176, deprived of life, liberty or property without due process of law.
183-185) it was held that a statute making it unlawful to discharge
an employee because of his connection with any lawful labor The statute in question is exactly analogous to the "Minimum Wage
organization, and providing a penalty therefor, is void, since the Act" referred to above. In section 13 it will be seen that no person,
right to terminate a contract, subject to liability to respond in a civil firm, or corporation owning or managing a factory shop, or place of
action for an unwarranted termination, is within the protection of labor of any description, can make a contract with a woman
the state and Federal constitutions which guarantee that no person without incurring the obligation, whatever the contract of
shall be deprived of life, liberty or property without due process of employment might be, unless he also promise to pay to such
law. The court said in part: ". . . One citizen cannot be compelled to woman employed as a laborer, who may become pregnant, her
give employment to another citizen, nor can anyone be compelled wages for thirty days before and thirty days after confinement. In
to be employed against his will. The Act of 1893, now under other words, said section creates a term or condition in every
consideration, deprives the employer of the right to terminate his contract made by every person, firm, or corporation with any
contract with his employee. The right to terminate such a contract woman who may, during the course of her employment, become
is guaranteed by the organic law of the state. The legislature is pregnant, and a failure to include in said contract the terms fixed
forbidden to deprive the employer or employee of the exercise of to a fine and imprisonment. Clearly, therefore, the law has
that right. The legislature has no authority to pronounce the deprived, every person, firm, or corporation owning or managing a
factory, shop or place of labor of any description within the for the protection of the public health, the public morals, or the
Philippine Islands, of his right to enter into contracts of public safety, is subject to and is controlled by the paramount
employment upon such terms as he and the employee may agree authority of the constitution of the state, and will not be permitted
upon. The law creates a term in every such contract, without the to violate rights secured or guaranteed by that instrument or
consent of the parties. Such persons are, therefore, deprived of interfere with the execution of the powers and rights guaranteed
their liberty to contract. The constitution of the Philippine Islands to the people under their law the constitution. (Mugler vs.
guarantees to every citizen his liberty and one of his liberties is the Kansas, 123 U. S., 623.)
liberty to contract.
The police power of the state is a growing and expanding power.
It is believed and confidently asserted that no case can be found, in As civilization develops and public conscience becomes awakened,
civilized society and well-organized governments, where the police power may be extended, as has been demonstrated in
individuals have been deprived of their property, under the police the growth of public sentiment with reference to the manufacture
power of the state, without compensation, except in cases where and sale of intoxicating liquors. But that power cannot grow faster
the property in question was used for the purpose of violating some than the fundamental law of the state, nor transcend or violate the
legally adopted, or constitutes a nuisance. Among such cases may express inhibition of the people's law the constitution. If the
be mentioned: Apparatus used in counterfeiting the money of the people desire to have the police power extended and applied to
state; firearms illegally possessed; opium possessed in violation of conditions and things prohibited by the organic law, they must first
law; apparatus used for gambling in violation of law; buildings and amend that law.1awphil.net
property used for the purpose of violating laws prohibiting the
manufacture and sale of intoxicating liquors; and all cases in which It will also be noted from an examination of said section 13, that it
the property itself has become a nuisance and dangerous and takes no account of contracts for the employment of women by the
detrimental to the public health, morals and general welfare of the day nor by the piece. The law is equally applicable to each case. It
state. In all of such cases, and in many more which might be cited, will hardly be contended that the person, firm or corporation
the destruction of the property is permitted in the exercise of the owning or managing a factory, shop or place of labor, who employs
police power of the state. But it must first be established that such women by the day or by the piece, could be compelled under the
property was used as the instrument for the violation of a valid law to pay for sixty days during which no services were rendered.
existing law. (Mugler vs. Kansas, 123 U. S., 623; Slaughter-House
Cases, 16 Wall., [U. S.], 36; Butchers' Union, etc., Co. vs. Crescent It has been decided in a long line of decisions of the Supreme Court
City, etc., Co., 111 U. S., 746 John Stuart Mill "On Liberty," 28, of the United States, that the right to contract about one's affairs is
29.) a part of the liberty of the individual, protected by the "due process
of law" clause of the constitution. (Allgeyer vs. Louisiana, 165 U. S.,
Without further attempting to define what are the peculiar 578, 591; New York Life Ins. Co. vs. Dodge, 246 U. S., 357, 373, 374;
subjects or limits of the police power, it may safely be affirmed, Coppage vs. Kansas, 236 U. S., 1, 10, 14; Adair vs. United States, 208
that every law for the restraint and punishment of crimes, for the U. S., 161; Lochner vs. New York, 198 U. S.; 45, 49; Muller vs.
preservation of the public peace, health, and morals, must come Oregon, 208 U. S., 412, 421.)
within this category. But the state, when providing by legislation
 The rule in this jurisdiction is, that the contracting parties may
establish any agreements, terms, and conditions they may deem
advisable, provided they are not contrary to law, morals or public
policy. (Art. 1255, Civil Code.)

For all of the foregoing reasons, we are fully persuaded, under the
facts and the law, that the provisions of section 13, of Act No. 3071
of the Philippine Legislature, are unconstitutional and void, in that
they violate and are contrary to the provisions of the first
paragraph of section 3 of the Act of Congress of the United States
of August 29, 1916. (Vol. 12, Public Laws, p. 238.)

Therefore, the sentence of the lower court is hereby revoked, the
complaint is hereby dismissed, and the defendant is hereby
discharged from the custody of the law, with costs de oficio. So
ordered.

Street, Malcolm, Avancea, Villamor, Ostrand and Romualdez, JJ.,
concur.

5. DEL MONTE CORP v. CA agricultural products, including catsup, under the Del Monte
trademark and logo.
G.R. No. L-78325 January 25, 1990
On October 27,1965, Del Monte authorized Philpack to register
DEL MONTE CORPORATION and PHILIPPINE PACKING with the Philippine Patent Office the Del Monte catsup bottle
CORPORATION, petitioners, configuration, for which it was granted Certificate of Trademark
vs. Registration No. SR-913 by the Philippine Patent Office under the
COURT OF APPEALS and SUNSHINE SAUCE MANUFACTURING Supplemental Register. 1 On November 20, 1972, Del Monte also
INDUSTRIES, respondents. obtained two registration certificates for its trademark "DEL
MONTE" and its logo. 2
Bito, Misa & Lozada for petitioners.
Respondent Sunshine Sauce Manufacturing Industries was issued a
Reynaldo F. Singson for private respondent. Certificate of Registration by the Bureau of Domestic Trade on April
17,1980, to engage in the manufacture, packing, distribution and
sale of various kinds of sauce, identified by the logo Sunshine Fruit
Catsup. 3 This logo was registered in the Supplemental Register on
CRUZ, J.: September 20, 1983. 4 The product itself was contained in various
kinds of bottles, including the Del Monte bottle, which the private
The petitioners are questioning the decision of the respondent respondent bought from the junk shops for recycling.
court upholding the dismissal by the trial court of their complaint
against the private respondent for infringement of trademark and Having received reports that the private respondent was using its
unfair competition. exclusively designed bottles and a logo confusingly similar to Del
Monte's, Philpack warned it to desist from doing so on pain of legal
Petitioner Del Monte Corporation is a foreign company organized action. Thereafter, claiming that the demand had been ignored,
under the laws of the United States and not engaged in business in Philpack and Del Monte filed a complaint against the private
the Philippines. Both the Philippines and the United States are respondent for infringement of trademark and unfair competition,
signatories to the Convention of Paris of September 27, 1965, with a prayer for damages and the issuance of a writ of preliminary
which grants to the nationals of the parties rights and advantages injunction. 5
which their own nationals enjoy for the repression of acts of
infringement and unfair competition. In its answer, Sunshine alleged that it had long ceased to use the
Del Monte bottle and that its logo was substantially different from
Petitioner Philippine Packing Corporation (Philpack) is a domestic the Del Monte logo and would not confuse the buying public to the
corporation duly organized under the laws of the Philippines. On detriment of the petitioners. 6
April 11, 1969, Del Monte granted Philpack the right to
manufacture, distribute and sell in the Philippines various After trial, the Regional Trial Court of Makati dismissed the
complaint. It held that there were substantial differences between
the logos or trademarks of the parties; that the defendant had goodwill of the said goods, business or services so identified, which
ceased using the petitioners' bottles; and that in any case the will be protected in the same manner as other property rights. Such
defendant became the owner of the said bottles upon its purchase a person shall have the remedies provided in section twenty- three,
thereof from the junk yards. Furthermore, the complainants had Chapter V hereof.
failed to establish the defendant's malice or bad faith, which was
an essential element of infringement of trademark or unfair Any person who shall employ deception or any other means
competition. 7 contrary to good faith by which he shall pass off the goods
manufactured by him or in which he deals, or his business, or
This decision was affirmed in toto by the respondent court, which services for those of the one having established such goodwill, or
is now faulted in this petition for certiorari under Rule 45 of the who shall commit any acts calculated to produce said result, shall
Rules of Court. be guilty of unfair competition, and shall be subject to an action
therefor.
Section 22 of R.A. No. 166, otherwise known as the Trademark Law,
provides in part as follows: In particular, and without in any way limiting the scope of unfair
competition, the following shall be deemed guilty of unfair
Sec. 22. Infringement, what constitutes. Any person who shall competition:
use, without the consent of the registrant, any reproduction,
counterfeit, copy or colorable imitation of any registered mark or (a) Any person, who in selling his goods shall give them the general
trade-name in connection with the sale, offering for sale, or appearance of goods of another manufacturer or dealer, either as
advertising of any goods, business or services on or in connection to the goods themselves or in the wrapping of the packages in
with which such use is likely to cause confusion or mistake or to which they are contained, or the devices or words thereon, or in
deceive purchasers or others as to the source or origin of such any other feature of their appearance, which would likely influence
goods or services or identity of such business; or reproduce, purchasers to believe that the goods offered are those of a
counterfeit copy or colorably imitate any such mark or trade name manufacturer or dealer other than the actual manufacturer or
and apply such reproduction, counterfeit copy or colorable dealer, or who otherwise clothes the goods with such appearance
imitation to labels, signs, prints, packages, wrappers, receptacles or as shall deceive the public and defraud another of his legitimate
advertisements intended to be used upon or in connection with trade, or any subsequent vendor of such goods or any agent of any
such goods, business or services, shall be liable to a civil action by vendor engaged in selling such goods with a like purpose;
the registrant for any or all of the remedies herein provided.
(b) Any person who by any artifice, or device, or who employs ally
Sec. 29 of the same law states as follows: other means calculated to induce the false belief that such person
is offering the services of another who has identified such services
Sec. 29. Unfair competition, rights and remedies. A person who in the mind of the public; or
has identified in the mind of the public the goods he manufactures
or deals in, his business or services from those of others, whether (c) Any person who shall make any false statement in the course
or not a mark or tradename is employed, has a property right in the of trade or who shall commit any other act contrary to good faith
of a nature calculated to discredit the goods, business or services 1. As to the shape of label or make:
of another.
Del Monte: Semi-rectangular with a crown or tomato shape design
To arrive at a proper resolution of this case, it is important to bear on top of the rectangle.
in mind the following distinctions between infringement of
trademark and unfair competition. Sunshine: Regular rectangle.

(1) Infringement of trademark is the unauthorized use of a 2. As to brand printed on label:
trademark, whereas unfair competition is the passing off of one's
goods as those of another. Del Monte: Tomato catsup mark.

(2) In infringement of trademark fraudulent intent is unnecessary Sunshine: Fruit catsup.
whereas in unfair competition fraudulent intent is essential.
3. As to the words or lettering on label or mark:
(3) In infringement of trademark the prior registration of the
trademark is a prerequisite to the action, whereas in unfair Del Monte: Clearly indicated words packed by Sysu International,
competition registration is not necessary. 8 Inc., Q.C., Philippines.

In the challenged decision, the respondent court cited the following Sunshine: Sunshine fruit catsup is clearly indicated "made in the
test laid down by this Court in a number of cases: Philippines by Sunshine Sauce Manufacturing Industries" No. 1 Del
Monte Avenue, Malabon, Metro Manila.
In determining whether two trademarks are confusingly similar,
the two marks in their entirety as they appear in the respective 4. As to color of logo:
labels must be considered in relation to the goods to which they
are attached; the discerning eye of the observer must focus not Del Monte: Combination of yellow and dark red, with words "Del
only on the predorninant words but also on the other features Monte Quality" in white.
appearing on both labels. 9
Sunshine: White, light green and light red, with words "Sunshine
and applying the same, held that there was no colorable imitation Brand" in yellow.
of the petitioners' trademark and logo by the private respondent.
The respondent court agreed with the findings of the trial court 5. As to shape of logo:
that:
Del Monte: In the shape of a tomato.
In order to resolve the said issue, the Court now attempts to make
a comparison of the two products, to wit: Sunshine: Entirely different in shape.

6. As to label below the cap: confounding it with the original. 11 As observed in several cases,
the general impression of the ordinary purchaser, buying under the
Del Monte: Seal covering the cap down to the neck of the bottle, normally prevalent conditions in trade and giving the attention
with picture of tomatoes with words "made from real tomatoes." such purchasers usually give in buying that class of goods is the
touchstone. 12
Sunshine: There is a label below the cap which says "Sunshine
Brand." It has been held that in making purchases, the consumer must
depend upon his recollection of the appearance of the product
7. As to the color of the products: which he intends to purchase. 13 The buyer having in mind the
mark/label of the respondent must rely upon his memory of the
Del Monte: Darker red. petitioner's mark. 14 Unlike the judge who has ample time to
minutely examine the labels in question in the comfort of his sala,
Sunshine: Lighter than Del Monte. the ordinary shopper does not enjoy the same opportunity.

While the Court does recognize these distinctions, it does not agree A number of courts have held that to determine whether a
with the conclusion that there was no infringement or unfair trademark has been infringed, we must consider the mark as a
competition. It seems to us that the lower courts have been so pre- whole and not as dissected. If the buyer is deceived, it is
occupied with the details that they have not seen the total picture. attributable to the marks as a totality, not usually to any part of it.
15 The court therefore should be guided by its first impression, 16
It has been correctly held that side-by-side comparison is not the for a buyer acts quickly and is governed by a casual glance, the
final test of similarity. 10 Such comparison requires a careful value of which may be dissipated as soon as the court assumes to
scrutiny to determine in what points the labels of the products analyze carefully the respective features of the mark. 17
differ, as was done by the trial judge. The ordinary buyer does not
usually make such scrutiny nor does he usually have the time to do It has also been held that it is not the function of the court in cases
so. The average shopper is usually in a hurry and does not inspect of infringement and unfair competition to educate purchasers but
every product on the shelf as if he were browsing in a library. rather to take their carelessness for granted, and to be ever
Where the housewife has to return home as soon as possible to her conscious of the fact that marks need not be identical. A confusing
baby or the working woman has to make quick purchases during similarity will justify the intervention of equity. 18 The judge must
her off hours, she is apt to be confused by similar labels even if they also be aware of the fact that usually a defendant in cases of
do have minute differences. The male shopper is worse as he infringement does not normally copy but makes only colorable
usually does not bother about such distinctions. changes. 19 Well has it been said that the most successful form of
copying is to employ enough points of similarity to confuse the
The question is not whether the two articles are distinguishable by public with enough points of difference to confuse the courts. 20
their label when set side by side but whether the general confusion
made by the article upon the eye of the casual purchaser who is We also note that the respondent court failed to take into
unsuspicious and off his guard, is such as to likely result in his consideration several factors which should have affected its
conclusion, to wit: age, training and education of the usual
purchaser, the nature and cost of the article, whether the article is It has been aptly observed that the ultimate ratio in cases of grave
bought for immediate consumption and also the conditions under doubt is the rule that as between a newcomer who by the
which it is usually purchased . 21 Among these, what essentially confusion has nothing to lose and everything to gain and one who
determines the attitude of the purchaser, specifically his inclination by honest dealing has already achieved favor with the public, any
to be cautious, is the cost of the goods. To be sure, a person who doubt should be resolved against the newcomer inasmuch as the
buys a box of candies will not exercise as much care as one who field from which he can select a desirable trademark to indicate the
buys an expensive watch. As a general rule, an ordinary buyer does origin of his product is obviously a large one. 25
not exercise as much prudence in buying an article for which he
pays a few centavos as he does in purchasing a more valuable thing. Coming now to the second issue, we find that the private
22 Expensive and valuable items are normally bought only after respondent is not guilty of infringement for having used the Del
deliberate, comparative and analytical investigation. But mass Monte bottle. The reason is that the configuration of the said bottle
products, low priced articles in wide use, and matters of everyday was merely registered in the Supplemental Register. In the case of
purchase requiring frequent replacement are bought by the casual Lorenzana v. Macagba, 26 we declared that:
consumer without great care. 23 In this latter category is catsup.
(1) Registration in the Principal Register gives rise to a presumption
At that, even if the labels were analyzed together it is not difficult of the validity of the registration, the registrant's ownership of the
to see that the Sunshine label is a colorable imitation of the Del mark and his right to the exclusive use thereof. There is no such
Monte trademark. The predominant colors used in the Del Monte presumption in the registration in the Supplemental Register.
label are green and red-orange, the same with Sunshine. The word
"catsup" in both bottles is printed in white and the style of the (2) Registration in the Principal Register is limited to the actual
print/letter is the same. Although the logo of Sunshine is not a owner of the trademark and proceedings therein on the issue of
tomato, the figure nevertheless approximates that of a tomato. ownership which may be contested through opposition or
interference proceedings or, after registration, in a petition for
As previously stated, the person who infringes a trade mark does cancellation.
not normally copy out but only makes colorable changes,
employing enough points of similarity to confuse the public with Registration in the Principal Register is constructive notice of the
enough points of differences to confuse the courts. What is registrant's claim of ownership, while registration in the
undeniable is the fact that when a manufacturer prepares to Supplemental Register is merely proof of actual use of the
package his product, he has before him a boundless choice of trademark and notice that the registrant has used or appropriated
words, phrases, colors and symbols sufficient to distinguish his it. It is not subject to opposition although it may be cancelled after
product from the others. When as in this case, Sunshine chose, the issuance. Corollarily, registration in the Principal Register is a
without a reasonable explanation, to use the same colors and basis for an action for infringement while registration in the
letters as those used by Del Monte though the field of its selection Supplemental Register is not.
was so broad, the inevitable conclusion is that it was done
deliberately to deceive . 24
(3) In applications for registration in the Principal Register, with the exclusive right to use the label nor did it give rise to the
publication of the application is necessary. This is not so in presumption of the validity of the registration.
applications for registrations in the Supplemental Register.
On the argument that no unfair competition was committed, the
It can be inferred from the foregoing that although Del Monte has Shell Case is not on all fours with the case at bar because:
actual use of the bottle's configuration, the petitioners cannot
claim exclusive use thereof because it has not been registered in (1) In Shell, the absence of intent to deceive was supported by the
the Principal Register. However, we find that Sunshine, despite the fact that the respondent therein, before marketing its product,
many choices available to it and notwithstanding that the caution totally obliterated and erased the brands/mark of the different
"Del Monte Corporation, Not to be Refilled" was embossed on the companies stenciled on the containers thereof, except for a single
bottle, still opted to use the petitioners' bottle to market a product isolated transaction. The respondent in the present case made no
which Philpack also produces. This clearly shows the private similar effort.
respondent's bad faith and its intention to capitalize on the latter's
reputation and goodwill and pass off its own product as that of Del (2) In Shell, what was involved was a single isolated transaction. Of
Monte. the many drums used, there was only one container where the
Shell label was not erased, while in the case at hand, the
The Court observes that the reasons given by the respondent court respondent admitted that it made use of several Del Monte bottles
in resolving the case in favor of Sunshine are untenable. First, it and without obliterating the embossed warning.
declared that the registration of the Sunshine label belied the
company's malicious intent to imitate petitioner's product. Second, (3) In Shell, the product of respondent was sold to dealers, not to
it held that the Sunshine label was not improper because the ultimate consumers. As a general rule, dealers are well acquainted
Bureau of Patent presumably considered other trademarks before with the manufacturer from whom they make their purchases and
approving it. Third, it cited the case of Shell Co. v. Insular since they are more experienced, they cannot be so easily deceived
Petroleum, 27 where this Court declared that selling oil in like the inexperienced public. There may well be similarities and
containers of another with markings erased, without intent to imitations which deceive all, but generally the interests of the
deceive, was not unfair competition. dealers are not regarded with the same solicitude as are the
interests of the ordinary consumer. For it is the form in which the
Regarding the fact of registration, it is to be noted that the Sunshine wares come to the final buyer that is of significance. 28
label was registered not in the Principal Register but only in the
Supplemental Register where the presumption of the validity of the As Sunshine's label is an infringement of the Del Monte's
trademark, the registrant's ownership of the mark and his right to trademark, law and equity call for the cancellation of the private
its exclusive use are all absent. respondent's registration and withdrawal of all its products bearing
the questioned label from the market. With regard to the use of Del
Anent the assumption that the Bureau of Patent had considered Monte's bottle, the same constitutes unfair competition; hence,
other existing patents, it is reiterated that since registration was the respondent should be permanently enjoined from the use of
only in the Supplemental Register, this did not vest the registrant such bottles.
 WHEREFORE, the petition is GRANTED. The decision of the Court of
The court must rule, however, that the damage prayed for cannot Appeals dated December 24, 1986 and the Resolution dated April
be granted because the petitioner has not presented evidence to 27,1987, are REVERSED and SET ASIDE and a new judgment is
prove the amount thereof. Section 23 of R.A. No. 166 provides: hereby rendered:

Sec. 23. Actions and damages and injunction for infringement. (1) Canceling the private respondent's Certificate of Register No.
Any person entitled to the exclusive use of a registered mark or SR-6310 and permanently enjoining the private respondent from
trade name may recover damages in a civil action from any person using a label similar to that of the petitioners.
who infringes his rights, and the measure of the damages suffered
shall be either the reasonable profit which the complaining party (2) Prohibiting the private respondent from using the empty
would have made, had the defendant not infringed his said rights bottles of the petitioners as containers for its own products.
or the profit which the defendant actually made out of the
infringement, or in the event such measure of damages cannot be (3) Ordering the private respondent to pay the petitioners nominal
readily ascertained with reasonable certainty the court may award damages in the amount of Pl,000.00, and the costs of the suit.
as damages reasonable percentage based upon the amount of
gross sales of the defendant or the value of the services in SO ORDERED.
connection with which the mark or trade name was used in the
infringement of the rights of the complaining party. In cases where
actual intent to mislead the public or to defraud the complaining
party shall be shown, in the discretion of the court, the damages
may be doubled.

The complaining party, upon proper showing may also be granted
injunction.

Fortunately for the petitioners, they may still find some small
comfort in Art. 2222 of the Civil Code, which provides:

Art. 2222. The court may award nominal damages in every
obligation arising from any source enumerated in Art. 1157, or in
every case where any property right has been invaded.

Accordingly, the Court can only award to the petitioners, as it
hereby does award, nominal damages in the amount of Pl,000.00.

 6. ASIA BREWERY v. SAN MIGUEL reversed the trial court. The dispositive part of the decision reads as
follows:
G.R. No. 103543 July 5, 1993
In the light of the foregoing analysis and under the plain language of
ASIA BREWERY, INC., petitioner, the applicable rule and principle on the matter, We find the defendant
vs. Asia Brewery Incorporated GUILTY of infringement of trademark and
THE HON. COURT OF APPEALS and SAN MIGUEL CORPORATION, unfair competition. The decision of the trial court is hereby REVERSED,
respondents. and a new judgment entered in favor of the plaintiff and against the
defendant as follows:
Abad Santos & Associates and Sycip, Salazar, Hernandez & Gatmaitan
for petitioner. (1) The defendant Asia Brewery Inc. its officers, agents, servants
and employees are hereby permanently enjoined and restrained from
Roco, Bunag, Kapunan Law Office for private respondent. manufacturing, putting up, selling, advertising, offering or announcing
for sale, or supplying Beer Pale Pilsen, or any similar preparation,
manufacture or beer in bottles and under labels substantially identical
with or like the said bottles and labels of plaintiff San Miguel
GRIO-AQUINO, J.: Corporation employed for that purpose, or substantially identical with
or like the bottles and labels now employed by the defendant for that
On September 15, 1988, San Miguel Corporation (SMC) filed a purpose, or in bottles or under labels which are calculated to deceive
complaint against Asia Brewery Inc. (ABI) for infringement of purchasers and consumers into the belief that the beer is the product
trademark and unfair competition on account of the latter's BEER PALE of the plaintiff or which will enable others to substitute, sell or palm off
PILSEN or BEER NA BEER product which has been competing with the said beer of the defendant as and for the beer of the plaintiff-
SMC's SAN MIGUEL PALE PILSEN for a share of the local beer market. complainant.
(San Miguel Corporation vs. Asia Brewery Inc., Civ. Case. No. 56390,
RTC Branch 166, Pasig, Metro Manila.). (2) The defendant Asia Brewery Inc. is hereby ordered to render an
accounting and pay the San Miguel Corporation double any and all the
On August 27, 1990, a decision was rendered by the trial Court, payments derived by defendant from operations of its business and the
presided over by Judge Jesus O. Bersamira, dismissing SMC's complaint sale of goods bearing the mark "Beer Pale Pilsen" estimated at
because ABI "has not committed trademark infringement or unfair approximately Five Million Pesos (P5,000,000.00); to recall all its
competition against" SMC (p. 189, Rollo). products bearing the mark "Beer Pale Pilsen" from its retailers and
deliver these as well as all labels, signs, prints, packages, wrappers,
SMC appealed to the Court of Appeals (C.A.-G.R. CV No. 28104). On receptacles and advertisements bearing the infringing mark and all
September 30, 1991, the Court of Appeals (Sixth Division composed of plates, molds, materials and other means of making the same to the
Justice Jose C. Campos, Jr., chairman and ponente, and Justices Court authorized to execute this judgment for destruction.
Venancio D. Aldecoa Jr. and Filemon H. Mendoza, as members)
(3) The defendant is hereby ordered to pay plaintiff the sum of Two plates, molds, materials and other means of making the same to the
Million Pesos (P2,000,000.00) as moral damages and Half a Million Court authorized to execute this judgment for destruction.
Pesos (P5,000,000.00) by way of exemplary damages.
(3) The defendant is hereby ordered to pay plaintiff the sum of Two
(4) The defendant is further ordered to pay the plaintiff attorney's Million Pesos (P2,000,000.00) as moral damages and Half a Million
fees in the amount of P250,000.00 plus costs to this suit. (p. 90, Rollo.) Pesos (P500,000.00) by way of exemplary damages.

Upon a motion for reconsideration filed by ABI, the above dispositive (4) The defendant is further ordered to pay the plaintiff attorney's
part of the decision, was modified by the separate opinions of the fees in the amount of P250,000.00 plus costs of this suit.
Special Sixth Division 1 so that it should read thus:
In due time, ABI appealed to this Court by a petition for certiorari under
In the light of the foregoing analysis and under the plain language of Rule 45 of the Rules of Court. The lone issue in this appeal is whether
the applicable rule and principle on the matter, We find the defendant ABI infringes SMC's trademark: San Miguel Pale Pilsen with Rectangular
Asia Brewery Incorporated GUILTY of infringement of trademark and Hops and Malt Design, and thereby commits unfair competition against
unfair competition. The decision of the trial court is hereby REVERSED, the latter. It is a factual issue (Phil. Nut Industry Inc. v. Standard Brands
and a new judgment entered in favor of the plaintiff and against the Inc., 65 SCRA 575) and as a general rule, the findings of the Court of
defendant as follows: Appeals upon factual questions are conclusive and ought not to be
disturbed by us. However, there are exceptions to this general rule, and
(1) The defendant Asia Brewery Inc., its officers, agents, servants they are:
and employees are hereby permanently enjoined and restrained from
manufacturing, putting up, selling, advertising, offering or announcing (1) When the conclusion is grounded entirely on speculation,
for sale, or supplying Beer Pale Pilsen, or any similar preparation, surmises and conjectures;
manufacture or beer in bottles and under labels substantially identical
with or like the said bottles and labels of plaintiff San Miguel (2) When the inference of the Court of Appeals from its findings of
Corporation employed for that purpose, or substantially identical with fact is manifestly mistaken, absurd and impossible;
or like the bottles and labels now employed by the defendant for that
purpose, or in bottles or under labels which are calculated to deceive (3) Where there is grave abuse of discretion;
purchasers and consumers into the belief that the beer if the product
of the plaintiff or which will enable others to substitute, sell or palm off (4) When the judgment is based on a misapprehension of facts;
the said beer of the defendant as and for the beer of the plaintiff-
complainant. (5) When the appellate court, in making its findings, went beyond
the issues of the case, and the same are contrary to the admissions of
(2) The defendant Asia Brewery Inc. is hereby ordered 2 to recall both the appellant and the appellee;
all its products bearing the mark Beer Pale Pilsen from its retailers and
deliver these as well as all labels, signs, prints, packages, wrappers, (6) When the findings of said court are contrary to those of the trial
receptacles and advertisements bearing the infringing mark and all court;
 otherwise known as the Trademark Law, defines what constitutes
(7) When the findings are without citation of specific evidence on infringement:
which they are based;
Sec. 22. Infringement, what constitutes. Any person who shall
(8) When the facts set forth in the petition as well as in the use, without the consent of the registrant, any reproduction,
petitioner's main and reply briefs are not disputed by the respondents; counterfeit, copy or colorable imitation of any registered mark or
and trade-name in connection with the sale, offering for sale, or advertising
of any goods, business or services on or in connection with which such
(9) When the findings of facts of the Court of Appeals are premised use is likely to cause confusion or mistake or to deceive purchasers or
on the absence of evidence and are contradicted on record. (Reynolds others as to the source or origin of such goods or services, or identity
Philippine Corporation vs. Court of Appeals, 169 SCRA 220, 223 citing, of such business; or reproduce, counterfeit, copy or colorably imitate
Mendoza vs. Court of Appeals, 156 SCRA 597; Manlapaz vs. Court of any such mark or trade-name and apply such reproduction,
Appeals, 147 SCRA 238; Sacay vs. Sandiganbayan, 142 SCRA 593, 609; counterfeit, copy, or colorable imitation to labels, signs, prints,
Guita vs. CA, 139 SCRA 576; Casanayan vs. Court of Appeals, 198 SCRA packages, wrappers, receptacles or advertisements intended to be
333, 336; also Apex Investment and Financing Corp. vs. IAC, 166 SCRA used upon or in connection with such goods, business or services, shall
458 [citing Tolentino vs. De Jesus, 56 SCRA 167; Carolina Industries, Inc. be liable to a civil action by the registrant for any or all of the remedies
vs. CMS Stock Brokerage, Inc., 97 SCRA 734; Manero vs. CA, 102 SCRA herein provided. (Emphasis supplied.)
817; and Moran, Jr. vs. CA, 133 SCRA 88].)
This definition implies that only registered trade marks, trade names
Under any of these exceptions, the Court has to review the evidence in and service marks are protected against infringement or unauthorized
order to arrive at the correct findings based on the record (Roman use by another or others. The use of someone else's registered
Catholic Bishop of Malolos, Inc. vs. IAC, 191 SCRA 411, 420.) Where trademark, trade name or service mark is unauthorized, hence,
findings of the Court of Appeals and trial court are contrary to each actionable, if it is done "without the consent of the registrant." (Ibid.)
other, the Supreme Court may scrutinize the evidence on record. (Cruz
vs. CA, 129 SCRA 222, 227.) The registered trademark of SMC for its pale pilsen beer is:

The present case is one of the exceptions because there is no San Miguel Pale Pilsen With Rectangular Hops and Malt Design.
concurrence between the trial court and the Court of Appeals on the (Philippine Bureau of Patents, Trademarks and Technology Transfer
lone factual issue of whether ABI, by manufacturing and selling its BEER Trademark Certificate of Registration No. 36103, dated 23 Oct. 1986,
PALE PILSEN in amber colored steinie bottles of 320 ml. capacity with (p. 174, Rollo.)
a white painted rectangular label has committed trademark
infringement and unfair competition against SMC. As described by the trial court in its decision (Page 177, Rollo):

Infringement of trademark is a form of unfair competition (Clarke vs. . . . . a rectangular design [is] bordered by what appears to be minute
Manila Candy Co., 36 Phil. 100, 106). Sec. 22 of Republic Act No. 166, grains arranged in rows of three in which there appear in each corner
hop designs. At the top is a phrase written in small print "Reg. Phil. Pat.
Off." and at the bottom "Net Contents: 320 Ml." The dominant feature It has been consistently held that the question of infringement of a
is the phrase "San Miguel" written horizontally at the upper portion. trademark is to be determined by the test of dominancy. Similarity in
Below are the words "Pale Pilsen" written diagonally across the middle size, form and color, while relevant, is not conclusive. If the competing
of the rectangular design. In between is a coat of arms and the phrase trademark contains the main or essential or dominant features of
"Expertly Brewed." The "S" in "San" and the "M" of "Miguel," "P" of another, and confusion and deception is likely to result, infringement
"Pale" and "Pilsen" are written in Gothic letters with fine strokes of takes place. Duplication or imitation is not necessary; nor it is necessary
serifs, the kind that first appeared in the 1780s in England and used for that the infringing label should suggest an effort to imitate. [C. Neilman
printing German as distinguished from Roman and Italic. Below "Pale Brewing Co. vs. Independent Brewing Co., 191 F., 489, 495, citing Eagle
Pilsen" is the statement "And Bottled by" (first line, "San Miguel White Lead Co., vs. Pflugh (CC) 180 Fed. 579]. The question at issue in
Brewery" (second line), and "Philippines" (third line). (p. 177, Rollo; cases of infringement of trademarks is whether the use of the marks
Emphasis supplied.) involved would be likely to cause confusion or mistakes in the mind of
the public or deceive purchasers. (Auburn Rubber Corporation vs.
On the other hand, ABI's trademark, as described by the trial court, Honover Rubber Co., 107 F. 2d 588; . . . .) (Emphasis supplied.)
consists of:
In Forbes, Munn & Co. (Ltd.) vs. Ang San To, 40 Phil. 272, 275, the test
. . . a rectangular design bordered by what appear to be buds of flowers was similarity or "resemblance between the two (trademarks) such as
with leaves. The dominant feature is "Beer" written across the upper would be likely to cause the one mark to be mistaken for the other. . .
portion of the rectangular design. The phrase "Pale Pilsen" appears . [But] this is not such similitude as amounts to identity."
immediately below in smaller block letters. To the left is a hop design
and to the right, written in small prints, is the phrase "Net Contents 320 In Phil. Nut Industry Inc. vs. Standard Brands Inc., 65 SCRA 575, the
ml." Immediately below "Pale Pilsen" is the statement written in three court was more specific: the test is "similarity in the dominant features
lines "Especially brewed and bottled by" (first line), "Asia Brewery of the trademarks."
Incorporated" (second line), and "Philippines" (third line), (p. 177,
Rollo; Emphasis supplied.) What are the dominant features of the competing trademarks before
us?
Does ABI's BEER PALE PILSEN label or "design" infringe upon SMC's SAN
MIGUEL PALE PILSEN WITH RECTANGULAR MALT AND HOPS DESIGN? There is hardly any dispute that the dominant feature of SMC's
The answer is "No." trademark is the name of the product: SAN MIGUEL PALE PILSEN,
written in white Gothic letters with elaborate serifs at the beginning
Infringement is determined by the "test of dominancy" rather than by and end of the letters "S" and "M" on an amber background across the
differences or variations in the details of one trademark and of upper portion of the rectangular design.
another. The rule was formulated in Co Tiong Sa vs. Director of Patents,
95 Phil. 1, 4 (1954); reiterated in Lim Hoa vs. Director of Patents, 100 On the other hand, the dominant feature of ABI's trademark is the
Phil. 214, 216-217 (1956), thus: name: BEER PALE PILSEN, with the word "Beer" written in large amber
letters, larger than any of the letters found in the SMC label.

The trial court perceptively observed that the word "BEER" does not
appear in SMC's trademark, just as the words "SAN MIGUEL" do not Whereas SMC's bottle carries no slogan.
appear in ABI's trademark. Hence, there is absolutely no similarity in
the dominant features of both trademarks. (5) The back of the SAN MIGUEL PALE PILSEN bottle carries the
SMC logo, whereas the BEER PALE PILSEN bottle has no logo.
Neither in sound, spelling or appearance can BEER PALE PILSEN be said
to be confusingly similar to SAN MIGUEL PALE PILSEN. No one who (6) The SAN MIGUEL PALE PILSEN bottle cap is stamped with a coat
purchases BEER PALE PILSEN can possibly be deceived that it is SAN of arms and the words "San Miguel Brewery Philippines" encircling the
MIGUEL PALE PILSEN. No evidence whatsoever was presented by SMC same.
proving otherwise.
The BEER PALE PILSEN bottle cap is stamped with the name "BEER" in
Besides the dissimilarity in their names, the following other the center, surrounded by the words "Asia Brewery Incorporated
dissimilarities in the trade dress or appearance of the competing Philippines."
products abound:
(7) Finally, there is a substantial price difference between BEER
(1) The SAN MIGUEL PALE PILSEN bottle has a slender tapered PALE PILSEN (currently at P4.25 per bottle) and SAN MIGUEL PALE
neck. PILSEN (currently at P7.00 per bottle). One who pays only P4.25 for a
bottle of beer cannot expect to receive San Miguel Pale Pilsen from the
The BEER PALE PILSEN bottle has a fat, bulging neck. storekeeper or bartender.

(2) The words "pale pilsen" on SMC's label are printed in bold and The fact that the words pale pilsen are part of ABI's trademark does not
laced letters along a diagonal band, whereas the words "pale pilsen" constitute an infringement of SMC's trademark: SAN MIGUEL PALE
on ABI's bottle are half the size and printed in slender block letters on PILSEN, for "pale pilsen" are generic words descriptive of the color
a straight horizontal band. (See Exhibit "8-a".). ("pale"), of a type of beer ("pilsen"), which is a light bohemian beer
with a strong hops flavor that originated in the City of Pilsen in
(3) The names of the manufacturers are prominently printed on Czechoslovakia and became famous in the Middle Ages. (Webster's
their respective bottles. Third New International Dictionary of the English Language,
Unabridged. Edited by Philip Babcock Gove. Springfield, Mass.: G & C
SAN MIGUEL PALE PILSEN is "Bottled by the San Miguel Brewery, Merriam Co., [c] 1976, page 1716.) "Pilsen" is a "primarily
Philippines," whereas BEER PALE PILSEN is "Especially brewed and geographically descriptive word," (Sec. 4, subpar. [e] Republic Act No.
bottled by Asia Brewery Incorporated, Philippines." 166, as inserted by Sec. 2 of R.A. No. 638) hence, non-registerable and
not appropriable by any beer manufacturer. The Trademark Law
(4) On the back of ABI's bottle is printed in big, bold letters, under provides:
a row of flower buds and leaves, its copyrighted slogan:
Sec. 4. . . .. The owner of trade-mark, trade-name or service-mark used
"BEER NA BEER!" to distinguish his goods, business or services from the goods, business
or services of others shall have the right to register the same [on the ingredients or characteristics, and thus limit other persons in the use
principal register], unless it: of language appropriate to the description of their manufactures, the
right to the use of such language being common to all. This rule
xxx xxx xxx excluding descriptive terms has also been held to apply to trade-
names. As to whether words employed fall within this prohibition, it is
(e) Consists of a mark or trade-name which, when applied to or said that the true test is not whether they are exhaustively descriptive
used in connection with the goods, business or services of the applicant of the article designated, but whether in themselves, and as they are
is merely descriptive or deceptively misdescriptive of them, or when commonly used by those who understand their meaning, they are
applied to or used in connection with the goods, business or services reasonably indicative and descriptive of the thing intended. If they are
of the applicant is primarily geographically descriptive or deceptively thus descriptive, and not arbitrary, they cannot be appropriated from
misdescriptive of them, or is primarily merely a surname." (Emphasis general use and become the exclusive property of anyone. (52 Am. Jur.
supplied.) 542-543.)

The words "pale pilsen" may not be appropriated by SMC for its . . . . Others may use the same or similar descriptive word in connection
exclusive use even if they are part of its registered trademark: SAN with their own wares, provided they take proper steps to prevent the
MIGUEL PALE PILSEN, any more than such descriptive words as public being deceived. (Richmond Remedies Co. vs. Dr. Miles Medical
"evaporated milk," "tomato ketchup," "cheddar cheese," "corn flakes" Co., 16 E. [2d] 598.)
and "cooking oil" may be appropriated by any single manufacturer of
these food products, for no other reason than that he was the first to . . . . A descriptive word may be admittedly distinctive, especially if the
use them in his registered trademark. In Masso Hermanos, S.A. vs. user is the first creator of the article. It will, however, be denied
Director of Patents, 94 Phil. 136, 139 (1953), it was held that a dealer protection, not because it lacks distinctiveness, but rather because
in shoes cannot register "Leather Shoes" as his trademark because that others are equally entitled to its use. (2 Callman. Unfair Competition
would be merely descriptive and it would be unjust to deprive other and Trademarks, pp. 869-870.)" (Emphasis supplied.)
dealers in leather shoes of the right to use the same words with
reference to their merchandise. No one may appropriate generic or The circumstance that the manufacturer of BEER PALE PILSEN, Asia
descriptive words. They belong to the public domain (Ong Ai Gui vs. Brewery Incorporated, has printed its name all over the bottle of its
Director of Patents, 96 Phil. 673, 676 [1955]): beer product: on the label, on the back of the bottle, as well as on the
bottle cap, disproves SMC's charge that ABI dishonestly and
A word or a combination of words which is merely descriptive of an fraudulently intends to palm off its BEER PALE PILSEN as SMC's product.
article of trade, or of its composition, characteristics, or qualities, In view of the visible differences between the two products, the Court
cannot be appropriated and protected as a trademark to the exclusion believes it is quite unlikely that a customer of average intelligence
of its use by others. . . . inasmuch as all persons have an equal right to would mistake a bottle of BEER PALE PILSEN for SAN MIGUEL PALE
produce and vend similar articles, they also have the right to describe PILSEN.
them properly and to use any appropriate language or words for that
purpose, and no person can appropriate to himself exclusively any The fact that BEER PALE PILSEN like SAN MIGUEL PALE PILSEN is bottled
word or expression, properly descriptive of the article, its qualities, in amber-colored steinie bottles of 320 ml. capacity and is also
advertised in print, broadcast, and television media, does not (c) Any person who shall make any false statement in the course
necessarily constitute unfair competition. of trade or who shall commit any other act contrary to good faith of a
nature calculated to discredit the goods, business or services of
Unfair competition is the employment of deception or any other means another.
contrary to good faith by which a person shall pass off the goods
manufactured by him or in which he deals, or his business, or services, In this case, the question to be determined is whether ABI is using a
for those of another who has already established goodwill for his name or mark for its beer that has previously come to designate SMC's
similar goods, business or services, or any acts calculated to produce beer, or whether ABI is passing off its BEER PALE PILSEN as SMC's SAN
the same result. (Sec. 29, Republic Act No. 166, as amended.) The law MIGUEL PALE PILSEN.
further enumerates the more common ways of committing unfair
competition, thus: . . ..The universal test question is whether the public is likely to be
deceived. Nothing less than conduct tending to pass off one man's
Sec. 29. . . . goods or business as that of another will constitute unfair competition.
Actual or probable deception and confusion on the part of the
In particular, and without in any way limiting the scope of unfair customers by reason of defendant's practices must always appear.
competition, the following shall be deemed guilty of unfair (Shell Co., of the Philippines, Ltd. vs. Insular Petroleum Refining Co. Ltd.
competition: et al., 120 Phil. 434, 439.)

(a) Any person, who in selling his goods shall give them the general The use of ABI of the steinie bottle, similar but not identical to the SAN
appearance of goods of another manufacturer or dealer, either as to MIGUEL PALE PILSEN bottle, is not unlawful. As pointed out by ABI's
the goods themselves or in the wrapping of the packages in which they counsel, SMC did not invent but merely borrowed the steinie bottle
are contained, or the devices or words thereon, or in any other feature from abroad and it claims neither patent nor trademark protection for
of their appearance, which would be likely to influence purchasers to that bottle shape and design. (See rollo, page 55.) The Cerveza Especial
believe that the goods offered are those of a manufacturer or dealer and the Efes Pale Pilsen use the "steinie" bottle. (See Exhibits 57-D, 57-
other than the actual manufacturer or dealer, or who otherwise E.) The trial court found no infringement of SMC's bottle
clothes the goods with such appearance as shall deceive the public and
defraud another of his legitimate trade, or any subsequent vendor of The court agrees with defendant that there is no infringement of
such goods or any agent of any vendor engaged in selling such goods plaintiff's bottle, firstly, because according to plaintiff's witness
with a like purpose. Deogracias Villadolid, it is a standard type of bottle called steinie, and
to witness Jose Antonio Garcia, it is not a San Miguel Corporation
(b) Any person who by any artifice, or device, or who employs any design but a design originally developed in the United States by the
other means calculated to induce the false belief that such person is Glass Container Manufacturer's Institute and therefore lacks
offering the services of another who has identified such services in the exclusivity. Secondly, the shape was never registered as a trademark.
mind of the public; or Exhibit "C" is not a registration of a beer bottle design required under
Rep. Act 165 but the registration of the name and other marks of
ownership stamped on containers as required by Rep. Act 623. Thirdly,
the neck of defendant's bottle is much larger and has a distinct bulge but most medicines, whether in liquid or tablet form, are sold in amber-
in its uppermost part. (p. 186, Rollo.) colored bottles.

The petitioner's contention that bottle size, shape and color may not That the ABI bottle has a 320 ml. capacity is not due to a desire to
be the exclusive property of any one beer manufacturer is well taken. imitate SMC's bottle because that bottle capacity is the standard
SMC's being the first to use the steinie bottle does not give SMC a prescribed under Metrication Circular No. 778, dated 4 December
vested right to use it to the exclusion of everyone else. Being of 1979, of the Department of Trade, Metric System Board.
functional or common use, and not the exclusive invention of any one,
it is available to all who might need to use it within the industry. With regard to the white label of both beer bottles, ABI explained that
Nobody can acquire any exclusive right to market articles supplying it used the color white for its label because white presents the
simple human needs in containers or wrappers of the general form, strongest contrast to the amber color of ABI's bottle; it is also the most
size and character commonly and immediately used in marketing such economical to use on labels, and the easiest to "bake" in the furnace
articles (Dy Buncio vs. Tan Tiao Bok, 42 Phil. 190, 194-195.) (p. 16, TSN of September 20, 1988). No one can have a monopoly of
the color amber for bottles, nor of white for labels, nor of the
. . . protection against imitation should be properly confined to rectangular shape which is the usual configuration of labels. Needless
nonfunctional features. Even if purely functional elements are slavishly to say, the shape of the bottle and of the label is unimportant. What is
copied, the resemblance will not support an action for unfair all important is the name of the product written on the label of the
competition, and the first user cannot claim secondary meaning bottle for that is how one beer may be distinguished form the others.
protection. Nor can the first user predicate his claim to protection on
the argument that his business was established in reliance on any such In Dy Buncio v. Tan Tiao Bok, 42 Phil. 190, 196-197, where two
unpatented nonfunctional feature, even "at large expenditure of competing tea products were both labelled as Formosan tea, both sold
money." (Callman Unfair Competition, Trademarks and Monopolies, in 5-ounce packages made of ordinary wrapping paper of conventional
Sec. 19.33 [4th Ed.].) (Petition for Review, p. 28.) color, both with labels containing designs drawn in green ink and
Chinese characters written in red ink, one label showing a double-
ABI does not use SMC's steinie bottle. Neither did ABI copy it. ABI decked jar in the center, the other, a flower pot, this court found that
makes its own steinie bottle which has a fat bulging neck to the resemblances between the designs were not sufficient to mislead
differentiate it from SMC's bottle. The amber color is a functional the ordinary intelligent buyer, hence, there was no unfair competition.
feature of the beer bottle. As pointed out by ABI, all bottled beer The Court held:
produced in the Philippines is contained and sold in amber-colored
bottles because amber is the most effective color in preventing . . . . In order that there may be deception of the buying public in the
transmission of light and provides the maximum protection to beer. As sense necessary to constitute unfair competition, it is necessary to
was ruled in California Crushed Fruit Corporation vs. Taylor B. and suppose a public accustomed to buy, and therefore to some extent
Candy Co., 38 F2d 885, a merchant cannot be enjoined from using a familiar with, the goods in question. The test of fraudulent simulation
type or color of bottle where the same has the useful purpose of is to be found in the likelihood of the deception of persons in some
protecting the contents from the deleterious effects of light rays. measure acquainted with an established design and desirous of
Moreover, no one may have a monopoly of any color. Not only beer, purchasing the commodity with which that design has been associated.
The test is not found in the deception, or possibility of the deception, sold in uniform tin cans. The same can be said of the standard ketchup
of the person who knows nothing about the design which has been or vinegar bottle with its familiar elongated neck. Many other grocery
counterfeited, and who must be indifferent as between that and the items such as coffee, mayonnaise, pickles and peanut butter are sold
other. The simulation, in order to be objectionable, must be such as in standard glass jars. The manufacturers of these foodstuffs have
appears likely to mislead the ordinarily intelligent buyer who has a equal right to use these standards tins, bottles and jars for their
need to supply and is familiar with the article that he seeks to purchase. products. Only their respective labels distinguish them from each
other. Just as no milk producer may sue the others for unfair
The main thrust of SMC's complaint if not infringement of its competition because they sell their milk in the same size and shape of
trademark, but unfair competition arising form the allegedly milk can which he uses, neither may SMC claim unfair competition
"confusing similarity" in the general appearance or trade dress of ABI's arising from the fact that ABI's BEER PALE PILSEN is sold, like SMC's SAN
BEER PALE PILSEN beside SMC's SAN MIGUEL PALE PILSEN (p. 209, MIGUEL PALE PILSEN in amber steinie bottles.
Rollo)
The record does not bear out SMC's apprehension that BEER PALE
SMC claims that the "trade dress" of BEER PALE PILSEN is "confusingly PILSEN is being passed off as SAN MIGUEL PALE PILSEN. This is unlikely
similar" to its SAN MIGUEL PALE PILSEN because both are bottled in to happen for consumers or buyers of beer generally order their beer
320 ml. steinie type, amber-colored bottles with white rectangular by brand. As pointed out by ABI's counsel, in supermarkets and tiendas,
labels. beer is ordered by brand, and the customer surrenders his empty
replacement bottles or pays a deposit to guarantee the return of the
However, when as in this case, the names of the competing products empties. If his empties are SAN MIGUEL PALE PILSEN, he will get SAN
are clearly different and their respective sources are prominently MIGUEL PALE PILSEN as replacement. In sari-sari stores, beer is also
printed on the label and on other parts of the bottle, mere similarity in ordered from the tindera by brand. The same is true in restaurants,
the shape and size of the container and label, does not constitute pubs and beer gardens beer is ordered from the waiters by brand.
unfair competition. The steinie bottle is a standard bottle for beer and (Op. cit. page 50.)
is universally used. SMC did not invent it nor patent it. The fact that
SMC's bottle is registered under R.A. No. 623 (as amended by RA 5700, Considering further that SAN MIGUEL PALE PILSEN has virtually
An Act to Regulate the Use of Duly Stamped or Marked Bottles, Boxes, monopolized the domestic beer market for the past hundred years,
Casks, Kegs, Barrels and Other Similar Containers) simply prohibits those who have been drinking no other beer but SAN MIGUEL PALE
manufacturers of other foodstuffs from the unauthorized use of SMC's PILSEN these many years certainly know their beer too well to be
bottles by refilling these with their products. It was not uncommon deceived by a newcomer in the market. If they gravitate to ABI's
then for products such as patis (fish sauce) and toyo (soy sauce) to be cheaper beer, it will not be because they are confused or deceived, but
sold in recycled SAN MIGUEL PALE PILSEN bottles. Registration of because they find the competing product to their taste.
SMC's beer bottles did not give SMC a patent on the steinie or on
bottles of similar size, shape or color. Our decision in this case will not diminish our ruling in "Del Monte
Corporation vs. Court of Appeals and Sunshine Sauce Manufacturing
Most containers are standardized because they are usually made by Industries," 181 SCRA 410, 419, 3 that:
the same manufacturer. Milk, whether in powdered or liquid form, is
. . . to determine whether a trademark has been infringed, we must There is no confusing similarity between the competing beers for the
consider the mark as a whole and not as dissected. If the buyer is name of one is "SAN MIGUEL" while the competitor is plain "BEER" and
deceived, it is attributable to the marks as a totality, not usually to any the points of dissimilarity between the two outnumber their points of
part of it. similarity.

That ruling may not apply to all kinds of products. The Court itself Petitioner ABI has neither infringed SMC's trademark nor committed
cautioned that in resolving cases of infringement and unfair unfair competition with the latter's SAN MIGUEL PALE PILSEN product.
competition, the courts should "take into consideration several factors While its BEER PALE PILSEN admittedly competes with the latter in the
which would affect its conclusion, to wit: the age, training and open market, that competition is neither unfair nor fraudulent. Hence,
education of the usual purchaser, the nature and cost of the article, we must deny SMC's prayer to suppress it.
whether the article is bought for immediate consumption and also the
conditions under which it is usually purchased" (181 SCRA 410, 418- WHEREFORE, finding the petition for review meritorious, the same is
419). hereby granted. The decision and resolution of the Court of Appeals in
CA-G.R. CV No. 28104 are hereby set aside and that of the trial court is
The Del Monte case involved catsup, a common household item which REINSTATED and AFFIRMED. Costs against the private respondent.
is bought off the store shelves by housewives and house help who, if
they are illiterate and cannot identify the product by name or brand, SO ORDERED.a
would very likely identify it by mere recollection of its appearance.
Since the competitor, Sunshine Sauce Mfg. Industries, not only used
recycled Del Monte bottles for its catsup (despite the warning
embossed on the bottles: "Del Monte Corporation. Not to be refilled.")
but also used labels which were "a colorable imitation" of Del Monte's
label, we held that there was infringement of Del Monte's trademark
and unfair competition by Sunshine.

Our ruling in Del Monte would not apply to beer which is not usually
picked from a store shelf but ordered by brand by the beer drinker
himself from the storekeeper or waiter in a pub or restaurant.

Moreover, SMC's brand or trademark: "SAN MIGUEL PALE PILSEN" is
not infringed by ABI's mark: "BEER NA BEER" or "BEER PALE PILSEN."
ABI makes its own bottle with a bulging neck to differentiate it from
SMC's bottle, and prints ABI's name in three (3) places on said bottle
(front, back and bottle cap) to prove that it has no intention to pass of
its "BEER" as "SAN MIGUEL."

7. PHILIPPINES v. MERALCO In third world countries like the Philippines, equal justice will have
a synthetic ring unless the economic rights of the people, especially
G.R. No. 141314 November 15, 2002 the poor, are protected with the same resoluteness as their right
to liberty. The cases at bar are of utmost significance for they
REPUBLIC OF THE PHILIPPINES, REPRESENTED BY ENERGY concern the right of our people to electricity and to be reasonably
REGULATORY BOARD petitioner, charged for their consumption. In configuring the contours of this
vs. economic right to a basic necessity of life, the Court shall define the
MANILA ELECTRIC COMPANY, respondent. limits of the power of respondent MERALCO, a giant public utility
and a monopoly, to charge our people for their electric
----------------------------- consumption. The question is: should public interest prevail over
private profits?
G.R. No. 141369 November 15, 2002
The facts are brief and undisputed. On December 23, 1993,
LAWYERS AGAINST MONOPOLY AND POVERTY (LAMP) consisting MERALCO filed with the ERB an application for the revision of its
of CEFERINO PADUA, Chairman, rate schedules. The application reflected an average increase of 21
G. FULTON ACOSTA, GALILEO BRION, ANATALIA BUENAVENTURA, centavos per kilowatthour (kwh) in its distribution charge. The
PEDRO CASTILLO, NAPOLEON CORONADO, ROMEO ECHAUZ, application also included a prayer for provisional approval of the
FERNANDO GAITE, ALFREDO DE GUZMAN, ROGELIO KARAGDAG, increase pursuant to Section 16(c) of the Public Service Act and
JR., Section 8 of Executive Order No. 172.
MA. LUZ ARZAGA-MENDOZA, ANSBERTO PAREDES, AQUILINO
PIMENTEL III, On January 28, 1994, the ERB issued an Order granting a provisional
MARIO REYES, EMMANUEL SANTOS, RUDEGELIO TACORDA, increase of P0.184 per kwh, subject to the following condition.
members,
and ROLANDO ARZAGA, Secretary-General, "In the event, however, that the Board finds, after hearing and
JUSTICE ABRAHAM SARMIENTO, SENATOR AQUILINO PIMENTEL, submission by the Commission on Audit of an audit report on the
JR. and books and records of the applicant that the latter is entitled to a
COMMISSIONER BARTOLOME FERNANDEZ, JR., Board of lesser increase in rates, all excess amounts collected from the
Consultants, applicant's customers as a result of this Order shall either be
and Lawyer GENARO LUALHATI, petitioners, refunded to them or correspondingly credited in their favor for
vs. application to electric bills covering future consumptions."1
MANILA ELECTRIC COMPANY (MERALCO), respondent.
In the same Order, the ERB requested the Commission on Audit
D E C I S I O N (COA) to conduct an "audit and examination of the books and other
records of account of the applicant for such period of time, which
PUNO, J.: in no case shall be less than 12 consecutive months, as it may deem

appropriate" and to submit a copy thereof to the ERB immediately On appeal, the Court of Appeals set aside the ERB decision insofar
upon completion.2 as it directed the reduction of the MERALCO rates by an average of
P0.167 per kwh and the refund of such amount to MERALCO's
On February 11, 1997, the COA submitted its Audit Report SAO No. customers beginning February 1994 and until its billing cycle
95-07 (the "COA Report") which contained, among others, the beginning February 1998.7 Separate Motions for Reconsideration
recommendation not to include income taxes paid by MERALCO as filed by the petitioners were denied by the Court of Appeals.8
part of its operating expenses for purposes of rate determination
and the use of the net average investment method for the Petitioners are now before the Court seeking a reversal of the
computation of the proportionate value of the properties used by decision of the Court of Appeals by arguing primarily that the Court
MERALCO during the test year for the determination of the rate of Appeals erred: a) in ruling that income tax paid by MERALCO
base.3 should be treated as part of its operating expenses and thus
considered in determining the amount of increase in rates imposed
Subsequently, the ERB rendered its decision adopting the above by MERALCO and b) in rejecting the net average investment
recommendations and authorized MERALCO to implement a rate method used by the COA and the ERB and instead adopted the
adjustment in the average amount of P0.017 per kwh, effective average investment method used by MERALCO.
with respect to MERALCO's billing cycles beginning February 1994.
The ERB further ordered that "the provisional relief in the amount We grant the petition.
of P0.184 per kilowatthour granted under the Board's Order dated
January 28, 1994 is hereby superseded and modified and the excess The regulation of rates to be charged by public utilities is founded
average amount of P0.167 per kilowatthour starting with upon the police powers of the State and statutes prescribing rules
[MERALCO's] billing cycles beginning February 1994 until its billing for the control and regulation of public utilities are a valid exercise
cycles beginning February 1998, be refunded to [MERALCO's] thereof. When private property is used for a public purpose and is
customers or correspondingly credited in their favor for future affected with public interest, it ceases to be juris privati only and
consumption."4 becomes subject to regulation. The regulation is to promote the
common good. Submission to regulation may be withdrawn by the
The ERB held that income tax should not be treated as operating owner by discontinuing use; but as long as use of the property is
expense as this should be "borne by the stockholders who are continued, the same is subject to public regulation.9
recipients of the income or profits realized from the operation of
their business" hence, should not be passed on to the consumers.5 In regulating rates charged by public utilities, the State protects the
Further, in applying the net average investment method, the ERB public against arbitrary and excessive rates while maintaining the
adopted the recommendation of COA that in computing the rate efficiency and quality of services rendered. However, the power to
base, only the proportionate value of the property should be regulate rates does not give the State the right to prescribe rates
included, determined in accordance with the number of months which are so low as to deprive the public utility of a reasonable
the same was actually used in service during the test year.6 return on investment. Thus, the rates prescribed by the State must
be one that yields a fair return on the public utility upon the value
of the property performing the service and one that is reasonable
to the public for the services rendered.10 The fixing of just and administrative authority is that the rate be reasonable and just. It
reasonable rates involves a balancing of the investor and the has been held that even in the absence of an express requirement
consumer interests.11 as to reasonableness, this standard may be implied.14 What is a
just and reasonable rate is a question of fact calling for the exercise
In his famous dissenting opinion in the 1923 case of Southwestern of discretion, good sense, and a fair, enlightened and independent
Bell Tel. Co. v. Public Service Commission,12 Mr. Justice Brandeis judgment. The requirement of reasonableness comprehends such
wrote: rates which must not be so low as to be confiscatory, or too high as
to be oppressive. In determining whether a rate is confiscatory, it
"The thing devoted by the investor to the public use is not specific is essential also to consider the given situation, requirements and
property, tangible and intangible, but capital embarked in an opportunities of the utility.15
enterprise. Upon the capital so invested, the Federal Constitution
guarantees to the utility the opportunity to earn a fair return The Settled jurisprudence holds that factual findings of administrative
Constitution does not guarantee to the utility the opportunity to bodies on technical matters within their area of expertise should
earn a return on the value of all items of property used by the be accorded not only respect but even finality if they are supported
utility, or of any of them. by substantial evidence even if not overwhelming or
preponderant.16 In one case, 17 we cautioned that courts should
. "refrain from substituting their discretion on the weight of the
evidence for the discretion of the Public Service Commission on
The investor agrees, by embarking capital in a utility, that its questions of fact and will only reverse or modify such orders of the
charges to the public shall be reasonable. His company is the Public Service Commission when it really appears that the evidence
substitute for the State in the performance of the public service, is insufficient to support their conclusions."18
thus becoming a public servant. The compensation which the
Constitution guarantees an opportunity to earn is the reasonable In the cases at bar, findings and conclusions of the ERB on the rate
cost of conducting the business." that can be charged by MERALCO to the public should be
respected.19 The function of the court, in exercising its power of
While the power to fix rates is a legislative function, whether judicial review, is to determine whether under the facts and
exercised by the legislature itself or delegated through an circumstances, the final order entered by the administrative
administrative agency, a determination of whether the rates so agency is unlawful or unreasonable.20 Thus, to the extent that the
fixed are reasonable and just is a purely judicial question and is administrative agency has not been arbitrary or capricious in the
subject to the review of the courts.13 exercise of its power, the time-honored principle is that courts
should not interfere. The principle of separation of powers dictates
The ERB was created under Executive Order No. 172 to regulate, that courts should hesitate to review the acts of administrative
among others, the distribution of energy resources and to fix rates officers except in clear cases of grave abuse of discretion.21
to be charged by public utilities involved in the distribution of
electricity. In the fixing of rates, the only standard which the In determining the just and reasonable rates to be charged by a
legislature is required to prescribe for the guidance of the public utility, three major factors are considered by the regulating
agency: a) rate of return; b) rate base and c) the return itself or the The ERB correctly ruled that income tax should not be included in
computed revenue to be earned by the public utility based on the the computation of operating expenses of a public utility. Income
rate of return and rate base.22 The rate of return is a judgment tax paid by a public utility is inconsistent with the nature of
percentage which, if multiplied with the rate base, provides a fair operating expenses. In general, operating expenses are those
return on the public utility for the use of its property for service to which are reasonably incurred in connection with business
the public.23 The rate of return of a public utility is not prescribed operations to yield revenue or income. They are items of expenses
by statute but by administrative and judicial pronouncements. This which contribute or are attributable to the production of income or
Court has consistently adopted a 12% rate of return for public revenue. As correctly put by the ERB, operating expenses "should
utilities.24 The rate base, on the other hand, is an evaluation of the be a requisite of or necessary in the operation of a utility, recurring,
property devoted by the utility to the public service or the value of and that it redounds to the service or benefit of customers."26
invested capital or property which the utility is entitled to a
return.25 Income tax, it should be stressed, is imposed on an individual or
entity as a form of excise tax or a tax on the privilege of earning
In the cases at bar, the resolution of the issues involved hinges on income.27 In exchange for the protection extended by the State to
the determination of the kind and the amount of operating the taxpayer, the government collects taxes as a source of revenue
expenses that should be allowed to a public utility to generate a to finance its activities. Clearly, by its nature, income tax payments
fair return and the proper valuation of the rate base or the value of of a public utility are not expenses which contribute to or are
the property entitled to a return. incurred in connection with the production of profit of a public
utility. Income tax should be borne by the taxpayer alone as they
I are payments made in exchange for benefits received by the
taxpayer from the State. No benefit is derived by the customers of
Income Tax as Operating Expense Cannot be Allowed For Rate- a public utility for the taxes paid by such entity and no direct
Determination Purposes contribution is made by the payment of income tax to the
operation of a public utility for purposes of generating revenue or
In determining whether or not a rate yields a fair return to the profit. Accordingly, the burden of paying income tax should be
utility, the operating expenses of the utility must be considered. Meralco's alone and should not be shifted to the consumers by
The return allowed to a public utility in accordance with the including the same in the computation of its operating expenses.
prescribed rate must be sufficient to provide for the payment of
such reasonable operating expenses incurred by the public utility The principle behind the inclusion of operating expenses in the
in the provision of its services to the public. Thus, the public utility determination of a just and reasonable rate is to allow the public
is allowed a return on capital over and above operating expenses. utility to recoup the reasonable amount of expenses it has incurred
However, only such expenses and in such amounts as are in connection with the services it provides. It does not give the
reasonable for the efficient operation of the utility should be public utility the license to indiscriminately charge any and all types
allowed for determination of the rates to be charged by a public of expenses incurred without regard to the nature thereof, i.e.,
utility. whether or not the expense is attributable to the production of
services by the public utility. To charge consumers for expenses
incurred by a public utility which are not related to the service or undesirable precedent and serve as a blanket authority for public
benefit derived by the customers from the public utility is utilities to charge their income tax payments to operating expenses
unjustified and inequitable. and unjustly shift the tax burden to the customer. To be sure, public
utility taxation in the United States is going through the eye of
While the public utility is entitled to a reasonable return on the fair criticism. Some commentators are of the view that by allowing the
value of the property being used for the service of the public, no public utility to collect its income tax payment from its customers,
less than the Federal Supreme Court of the United States a form of "sales tax" is, in effect, imposed on the public for
emphasized: "[t]he public cannot properly be subjected to consumption of public utility services. By charging their income tax
unreasonable rates in order simply that stockholders may earn payments to their customers, public utilities virtually become "tax
dividends If a corporation cannot maintain such a [facility] and collectors" rather than taxpayers.31 In the cases at bar, MERALCO
earn dividends for stockholders, it is a misfortune for it and them has not justified why its income tax should be treated as an
which the Constitution does not require to be remedied by operating expense to enable it to derive a fair return for its services.
imposing unjust burdens on the public."28
It is also noteworthy that under American laws, public utilities are
We are not impressed by the reliance by MERALCO on some taxed differently from other types of corporations and thus carry a
American case law allowing the treatment of income tax paid by a heavier tax burden. Moreover, different types of taxes, charges,
public utility as operating expense for rate-making purposes. tolls or fees are assessed on a public utility depending on the state
Suffice to state that with regard to rate-determination, the or locality where it operates. At a federal level, public utilities are
government is not hidebound to apply any particular method or subject to corporate income taxes and Social Security taxesin the
formula.29 The question of what constitutes a reasonable return same manner as other business corporations. At the state and local
for the public utility is necessarily determined and controlled by its levels, public utilities are subject to a wide variety of taxes, not all
peculiar environmental milieu. Aside from the financial condition of which are imposed on each state. Thus, it is not unusual to find
of the public utility, there are other critical factors to consider for different taxes or combinations of taxes applicable to respective
purposes of rate regulation. Among others, they are: particular utility industries within a particular state.32 A significant aspect of
reasons involved for the request of the rate increase, the quality of state and local taxation of public utilities in the United States is that
services rendered by the public utility, the existence of they have been singled out for special taxation, i.e., they are
competition, the element of risk or hazard involved in the required to pay one or more taxes that are not levied upon other
investment, the capacity of consumers, etc.30 Rate regulation is industries. In contrast, in this jurisdiction, public utilities are subject
the art of reaching a result that is good for the public utility and is to the same tax treatment as any other corporation and local taxes
best for the public. paid by it to various local government units are substantially the
same. The reason for this is that the power to tax resides in our
For these reasons, the Court cannot give in to the importunings of legislature which may prescribe the limits of both national and local
MERALCO that we blindly apply the rulings of American courts on taxation, unlike in the federal system of the United States where
the treatment of income tax as operating expenses in rate state legislature may prescribe taxes to be levied in their respective
regulation cases. An approach allowing the indiscriminate inclusion jurisdictions.
of income tax payments as operating expenses may create an
MERALCO likewise cites decisions of the ERB33 allowing the return only on the actual number of months they are in service
application of a tax recovery clause for the imposition of an during the period.34 In contrast, the "average investment method"
additional charge on consumers for taxes paid by the public utility. computes the proportionate value of the property by adding the
A close look at these decisions will show they are inappropos. In value of the property at the beginning and at the end of the test
the said cases, the ERB approved the adoption of a formula which year with the resulting sum divided by two.35
will allow the public utility to recover from its customers taxes
already paid by it. However, in the cases at bar, the income tax The ERB did not abuse its discretion when it applied the net average
component added to the operating expenses of a public utility is investment method. The reasonableness of net average
based on an estimate or approximate figure of income tax to be investment method is borne by the records of the case. In its
paid by the public utility. It is this estimated amount of income tax report, the COA explained that the computation of the
to be paid by MERALCO which is included in the amount of proportionate value of the property and equipment in accordance
operating expenses and used as basis in determining the with the actual number of months such property or equipment is
reasonable rate to be charged to the customers. Accordingly, the in service for purposes of determining the rate base is favored, as
varying factual circumstances in the said cases prohibit a square against the trending method employed by MERALCO, "to reflect
application of the rule under the previous ERB decisions. the real status of the property."36 By using the net average
investment method, the ERB and the COA considered for
II determination of the rate base the value of properties and
equipment used by MERALCO in proportion to the period that the
Use of "Net Average Investment Method" is Not Unreasonable same were actually used during the period in question. This
treatment is consistent with the settled rule in rate regulation that
In the determination of the rate base, property used in the the determination of the rate base of a public utility entitled to a
operation of the public utility must be subject to appraisal and return must be based on properties and equipment actually being
evaluation to determine the fair value thereof entitled to a fair used or are useful to the operations of the public utility.37
return. With respect to those properties which have not been used
by the public utility for the entire duration of the test year, i.e., the MERALCO does not seriously contest this treatment of actual usage
year subject to audit examination for rate-making purposes, a of property but opposes the method of computation or valuation
valuation method must be adopted to determine the thereof adopted by the ERB and the COA on the ground that the
proportionate value of the property. Petitioners maintain that the net average investment method "assumes an ideal situation where
net average investment method (also known as "actual number of a utility, like MERALCO, is able to record in its books within any
months use method") recommended by COA and adopted by the given month the value of all the properties actually placed in
ERB should be used, while MERALCO argues that the average service during that month."38 MERALCO contends that immediate
investment method (also known as the "trending method") to recordal in its books of the property or equipment is not possible
determine the proportionate value of properties should be applied. as MERALCO's franchise covers a wide area and that due to the
volume of properties and equipment put into service and the
Under the "net average investment method," properties and amount of paper work required to be accomplished for recording
equipment used in the operation of a public utility are entitled to a in the books of the company, "it takes three to six months (often
longer) before an asset placed in service is recorded in the books" that the valuation of certain properties may be subject to the
of MERALCO.39 Hence, MERALCO adopted the "average control of and abuse by the public utility, the Court finds no
investment method" or the "trending method" which computes reasonable basis to overturn the recommendation of COA and the
the average value of the property at the beginning and at the end decision of the ERB.
of the test year to compensate for the irregular recording in its
books. MERALCO further insists that the Court should sustain the
"trending method" in view of previous decisions by the Public
MERALCO'S stance is belied by the COA Report which states that Service Commission and of this Court which "upheld" the use of this
the "verification of the records, as confirmed by the Management method. By refusing to adopt the trending method, MERALCO
Staff, disclosed that properties are recorded in the books as these argues that the ERB violated the rule on stare decisis.
are actually placed in service."40 Moreover, while the case was
pending trial before the ERB, the ERB conducted an ocular Again, we are not impressed. It is a settled rule that the goal of rate-
inspection to examine the assets in service, records and books of making is to arrive at a just and reasonable rate for both the public
accounts of MERALCO to ascertain the physical existence, utility and the public which avails of the former's products and
ownership, valuation and usefulness of the assets contained in the services.42 However, what is a just and reasonable rate cannot be
COA Report.41 Thus, MERALCO's contention that the date of fixed by any immutable method or formula. Hence, it has been held
recordal in the books does not reflect the date when the asset is that no public utility has a vested right to any particular method of
placed in service is baseless. valuation.43 Accordingly, with respect to a determination of the
proper method to be used in the valuation of property and
Further, computing the proportionate value of assets used in equipment used by a public utility for rate-making purposes, the
service in accordance with the actual number of months the same administrative agency is not bound to apply any one particular
is used during the test year is a more accurate method of formula or method simply because the same method has been
determining the value of the properties of a public utility entitled previously used and applied. In fact, nowhere in the previous
to a return. If, as determined by COA, the date of recordal in the decisions cited by MERALCO which applied the trending method
books of MERALCO reflects the actual date the equipment or did the Court rule that the same should be the only method to be
property is used in service, there is no reason for the ERB to adopt applied in all instances.
the trending method applied by MERALCO if a more precise
method is available for determining the proportionate value of the At any rate, MERALCO has not adequately shown that the rates
assets placed in service. prescribed by the ERB are unjust or confiscatory as to deprive its
stockholders a reasonable return on investment. In the early case
If we were to sustain the application of the "trending method," the of Ynchausti S.S. Co. v. Public Utility Commissioner, this Court held:
public utility may easily manipulate the valuation of its property "[t]here is a legal presumption that the rates fixed by an
entitled to a return (rate base) by simply including a highly administrative agency are reasonable, and it must be conceded
capitalized asset in the computation of the rate base even if the that the fixing of rates by the Government, through its authorized
same was used for a limited period of time during the test year. agents, involves the exercise of reasonable discretion and, unless
With the inexactness of the trending method and the possibility there is an abuse of that discretion, the courts will not interfere."44
 Thus, the burden is upon the oppositor, MERALCO, to prove that
the rates fixed by the ERB are unreasonable or otherwise
confiscatory as to merit the reversal of the ERB. In the instant cases,
MERALCO was unable to discharge this burden.

WHEREFORE, in view of the foregoing, the instant petitions are
GRANTED and the decision of the Court of Appeals in C.A. G.R. SP
No. 46888 is REVERSED. Respondent MERALCO is authorized to
adopt a rate adjustment in the amount of P0.017 per kilowatthour,
effective with respect to MERALCO's billing cycles beginning
February 1994. Further, in accordance with the decision of the ERB
dated February 16, 1998, the excess average amount of P0.167 per
kilwatthour starting with the applicant's billing cycles beginning
February 1998 is ordered to be refunded to MERALCO's customers
or correspondingly credited in their favor for future consumption.

SO ORDERED.

Panganiban, Sandoval-Gutierrez, Corona, and Carpio-Morales, JJ.,
concur.

 8. ADONG v. CHEONG SENG GEE The conflicting claims to the estate of Cheong Boo were ventilated in
the Court of First Instance of Zamboanga. The trial judge, the
G.R. No. 18081 March 3, 1922 Honorable Quirico Abeto, after hearing the evidence presented by
both sides, reached the conclusion, with reference to the allegations of
IN THE MATTER OF THE ESTATE OF CHEONG BOO, deceased. Cheong Seng Gee, that the proof did not sufficiently establish the
MORA ADONG, petitioner-appellant, Chinese marriage, but that because Cheong Seng Gee had been
vs. admitted to the Philippine Islands as the son of the deceased, he should
CHEONG SENG GEE, opponent-appellant. share in the estate as a natural child. With reference to the allegations
of the Mora Adong and her daughters Payang and Rosalia, the trial
Kincaid, Perkins & Kincaid and P. J. Moore for petitioner-appellant. judge reached the conclusion that the marriage between the Mora
Carlos A. Sobral for opponent-appellant. Adong and the deceased had been adequately proved but that under
the laws of the Philippine Islands it could not be held to be a lawful
MALCOLM, J.: marriage; accordingly, the daughters Payang and Rosalia would inherit
as natural children. The order of the trial judge, following these
The two question presented for determination by these appeals may conclusions, was that there should be a partition of the property of the
be framed as follows: Is a marriage contracted in China and proven deceased Cheong Boo between the natural children, Cheong Seng Gee,
mainly by an alleged matrimonial letter, valid in the Philippines? Are Payang, and Rosalia.
the marriage performed in the Philippines according to the rites of the
Mohammedan religion valid? As the decision of the Supreme Court on From the judgment of the Judge of First Instance both parties perfected
the last point will affect marriages consummated by not less than one appeals. As to the facts, we can say that we agree in substance with the
hundred and fifty thousand Moros who profess the Mohammedan findings of the trial court. As to the legal issues submitted for decision
faith, the transcendental importance of the cause can be realized. We by the numerous assignments of error, these can best be resolved
proposed to give to the subject the serious consideration which it under two heads, namely: (1) The validity of the Chinese marriage; and
deserves. (2) the validity of the Mohammedan marriage.

Cheong Boo, a native of China, died intestate in Zamboanga, Philippine 1. Validity of the Chinese Marriage
Islands, on August 5, 1919. He left property worth nearly P100,000. The
estate of the deceased was claimed, on the one hand, by Cheong Seng The theory advanced on behalf of the claimant Cheong Seng Gee was
Gee, who alleged that he was a legitimate child by a marriage that Cheong Boo was married in the city of Amoy, China, during the
contracted by Cheong Boo with Tan Dit in China in 1895. The estate second moon of the twenty-first year of the Emperor Quang Su, or,
was claimed, on the other hand, by the Mora Adong who alleged that according to the modern count, on February 16, 1985, to a young lady
she had been lawfully married to Cheong Boo in 1896 in Basilan, named Tan Dit. Witnesses were presented who testified to having been
Philippine Islands, and her daughters, Payang, married to Cheng Bian present at the marriage ceremony. There was also introduced in
Chay, and Rosalia Cheong Boo, unmarried. evidence a document in Chinese which in translation reads as follows:

One hundred years of life and health for both.
Your nephew, Tan Chao, respecfully answers the venerable Chiong Ing, immigration documents only go to show the relation of parent and
father of the bridegroom, accepting his offer of marriage, and let this child existing between the deceased Cheong Boo and his son Cheong
document serve as proof of the acceptance of said marriage which is Seng Gee and do not establish the marriage between the deceased and
to be celebrated during the merry season of the flowers. the mother of Cheong Seng Gee.

I take advantage of this occasion to wish for your and the spouses much Section IV of the Marriage Law (General Order No. 68) provides that
happiness, a long life, and prolific issue, as noble and great as that "All marriages contracted without these Islands, which would be valid
which you brought forth. I consider the marriage of your son Boo with by the laws of the country in which the same were contracted, are valid
my sister Lit Chia as a mandate of God and I hope that they treat each in these Islands." To establish a valid foreign marriage pursuant to this
other with great love and mutual courtesy and that both they and their comity provision, it is first necessary to prove before the courts of the
parents be very happy. Islands the existence of the foreign law as a question of fact, and it is
then necessary to prove the alleged foreign marriage by convincing
Given during the second moon of the twenty-first year of the reign of evidence.
the Emperor Quang Su.
As a case directly in point is the leading one of Sy Joc Lieng vs.
Cheong Boo is said to have remained in China for one year and four Encarnacion ([1910]), 16 Phil., 137; [1913], 228 U.S., 335). Here, the
months after his marriage during which time there was born to him and courts of the Philippines and the Supreme Court of the United States
his wife a child named Cheong Seng Gee. Cheong Boo then left China were called upon to decide, as to the conflicting claims to the estate of
for the Philippine Islands and sometime thereafter took to himself a a Chinese merchant, between the descendants of an alleged Chinese
concubine Mora by whom he had two children. In 1910, Cheong Boo marriage and the descendants of an alleged Philippine marriage. The
was followed to the Philippines by Cheong Seng Gee who, as appears Supreme Courts of the Philippine Islands and the United States united
from documents presented in evidence, was permitted to land in the in holding that the Chinese marriage was not adequately proved. The
Philippine Islands as the son of Cheong Boo. The deceased, however, legal rule was stated by the United States Supreme Court to be this: A
never returned to his native hearth and seems never to have Philippine marriage, followed by forty years of uninterrupted marital
corresponded with his Chinese wife or to have had any further life, should not be impugned and discredited, after the death of the
relations with her except once when he sent her P10. husband and administration of his estate, though an alleged prior
Chinese marriage, "save upon proof so clear, strong, and unequivocal
The trial judge found, as we have said, that the proof did not sustain as to produce a moral conviction of the existence of such impediment."
the allegation of the claimant Cheong Seng Gee, that Cheong Boo had Another case in the same category is that of Son Cui vs. Guepangco
married in China. His Honor noted a strong inclination on the part of ([1912], 22 Phil., 216).
the Chinese witnesses, especially the brother of Cheong Boo, to protect
the interests of the alleged son, Cheong Seng Gee, by overstepping the In the case at bar there is no competent testimony as to what the laws
limits of truthfulness. His Honor also noted that reliable witnesses of China in the Province of Amoy concerning marriage were in 1895. As
stated that in the year 1895, when Cheong Boo was supposed to have in the Encarnacion case, there is lacking proof so clear, strong, and
been in China, he was in reality in Jolo, in the Philippine Islands. We are unequivocal as to produce a moral conviction of the existence of the
not disposed to disturb this appreciation of fact by the trial court. The
alleged prior Chinese marriage. Substitute twenty-three years for forty Rosalia, are living. Both in his relations with Mora Adong and with third
years and the two cases are the same. persons during his lifetime, Cheong Boo treated Adong as his lawful
wife. He admitted this relationship in several private and public
The lower court allowed the claimant, Cheong Seng Gee, the documents. Thus, when different legal documents were executed,
testamentary rights of an acknowledged natural child. This finding including decrees of registration, Cheong Boo stated that he was
finds some support in Exhibit 3, the affidavit of Cheong Boo before the married to the Mora Adong while as late as 1918, he gave written
American Vice-Consul at Sandakan, British North Borneo. But we are consent to the marriage of his minor daughter, Payang.
not called upon to make a pronouncement on the question, because
the oppositor-appellant indicates silent acquiescence by assigning no Notwithstanding the insinuation of counsel for the Chinese appellant
error. that the custom is prevalent among the Moros to favor in their
testimony, a relative or friend, especially when they do not swear on
2. Validity of the Mohammedan Marriage the Koran to tell the truth, it seems to us that proof could not be more
convincing of the fact that a marriage was contracted by the Chinaman
The biographical data relating to the Philippine odyssey of the Cheong Boo and the Mora Adong, according to the ceremonies of the
Chinaman Cheong Boo is fairly complete. He appears to have first Mohammedan religion.
landed on Philippine soil sometime prior to the year 1896. At least, in
the year las mentioned, we find him in Basilan, Philippine Islands. There It is next incumbent upon us to approach the principal question which
he was married to the Mora Adong according to the ceremonies we announced in the very beginning of this decision, namely, Are the
prescribed by the book on marriage of the Koran, by the Mohammedan marriages performed in the Philippines according to the rites of the
Iman (priest) Habubakar. That a marriage ceremony took place is Mohammedan religion valid? Three sections of the Marriage Law
established by one of the parties to the marriage, the Mora Adong, by (General Order No. 68) must be taken into consideration.
the Iman who solemnized the marriage, and by other eyewitnesses,
one of whom was the father of the bride, and another, the chief of the Section V of the Marriage Law provides that "Marriage may be
rancheria, now a municipal councilor. The groom complied with solemnized by either a judge of any court inferior to the Supreme
Quranic law by giving to the bride a dowry of P250 in money and P250 Court, justice of the peace, or priest or minister of the Gospel of any
in goods. denomination . . ." Counsel, failing to take account of the word "priest,"
and only considering the phrase "minister of the Gospel of any
The religious rites began with the bride and groom seating themselves denomination" would limit the meaning of this clause to ministers of
in the house of the father of the bride, Marahadja Sahibil. The Iman the Christian religion. We believe this is a strained interpretation.
read from the Koran. Then the Iman asked the parents if they had any "Priest," according to the lexicographers, means one especially
objection to the marriage. The marital act was consummated by the consecrated to the service of a divinity and considered as the medium
groom entering the woman's mosquito net. through whom worship, prayer, sacrifice, or other service is to be
offered to the being worshipped, and pardon, blessing, deliverance,
From the marriage day until the death of Cheong Boo, twenty-three etc., obtained by the worshipper, as a priest of Baal or of Jehovah; a
years later, the Chinaman and the Mora Adong cohabited as husband Buddhist priest. "Minister of the Gospel" means all clergymen of every
and wife. To them were born five children, two of whom, Payang and denomination and faith. A "denomination" is a religious sect having a
particular name. (Haggin vs. Haggin [1892], 35 Neb., 375; In re This provisions relates to marriages contracted by virtue of the
Reinhart, 9 O. Dec., 441; Hale vs. Everett [1868], 53 N. H. 9.) A provisions of the Spanish law before revolutionary authorized to
Mohammedan Iman is a "priest or minister of the Gospel," and solemnized marriages, and it is not to be presumed that the legislator
Mohammedanism is a "denomination," within the meaning of the intended by this law to validate void marriages celebrated during the
Marriage Law. Spanish sovereignty contrary to the laws which then governed.

The following section of the Marriage Law, No. VI, provides that "No What authority there is for this statement, we cannot conceive. To our
particular form for the ceremony of marriage is required, but the mind, nothing could be clearer than the language used in section IX.
parties must declare, in the presence of the person solemnizing the Note for a moment the all embracing words found in this section:
marriage, that they take each other as husband and wife." The law is
quite correct in affirming that no precise ceremonial is indispensable "No marriage" Could more inclusive words be found? "Heretofore
requisite for the creation of the marriage contract. The two essentials solemnized" Could any other construction than that of retrospective
of a valid marriage are capacity and consent. The latter element may force be given to this phrase? "Before any person professing to have
be inferred from the ceremony performed, the acts of the parties, and authority therefor shall be invalid for want of such authority" Could
habit or repute. In this instance, there is no question of capacity. Nor stronger language than this be invoked to announce legislative
do we think there can exist any doubt as to consent. While it is true intention? "Or on account of any informality, irregularity, or omission"
that during the Mohammedan ceremony, the remarks of the priest Could the legislative mind frame an idea which would more
were addressed more to the elders than to the participants, it is effectively guard the marriage relation against technicality? "If it was
likewise true that the Chinaman and the Mora woman did in fact take celebrated with the belief of the parties, or either of them, that he had
each other to be husband and wife and did thereafter live together as authority and that they have been lawfully married" What was the
husband and wife. (Travers vs. Reinhardt [1907], 205 U.S., 423. purpose of the legislator here, if it was not to legalize the marriage, if
it was celebrated by any person who thought that he had authority to
It would be possible to leave out of view altogether the two sections of perform the same, and if either of the parties thought that they had
the Marriage Law which have just been quoted and discussed. The been married? Is there any word or hint of any word which would
particular portion of the law which, in our opinion, is controlling, is restrict the curative provisions of section IX of the Marriage Law to
section IX, reading as follows: "No marriage heretofore solemnized Christian marriages? By what system of mental gymnastics would it be
before any person professing to have authority therefor shall be invalid possible to evolve from such precise language the curious idea that it
for want of such authority or on account of any informality, irregularity, was restricted to marriages performed under the Spanish law before
or omission, if it was celebrated with the belief of the parties, or either the revolutionary authorities?
of them, that he had authority and that they have been lawfully
married." In view of the importance of the question, we do not desire to stop
here but would ascertain from other sources the meaning and scope
The trial judge in construing this provision of law said that he did not of Section IX of General Order No. 68.
believe that the legislative intention in promulgating it was to validate
marriages celebrated between Mohammedans. To quote the judge: The purpose of the government toward the Mohammedan population
of the Philippines has, time and again, been announced by treaty,
organic law, statutory law, and executive proclamation. The Treaty of 787, sec. 13 [ j]; Act No. 1283, sec. 6 [b]; Act No. 114 of the Legislative
Paris in its article X, provided that "The inhabitants of the territories Council amended and approved by the Philippine Commission; Cacho
over which Spain relinquishes or cedes her sovereignty shall be secured vs. Government of the United States [1914], 28 Phil., 616.) Various
Instructions to the Philippine Commission imposed on every branch of responsible officials have so oft announced the purpose of the
the Government of the Philippine Islands the inviolable rule "that no Government not to interfere with the customs of the Moros, especially
law shall be made respecting an establishment of religion or their religious customs, as to make quotation of the same superfluous.
prohibiting the free exercise thereof, and that the free exercise and
enjoyment of religious profession and worship, without discrimination The retrospective provisions of the Philippine Marriage Law
or preference, shall forever be allowed ... That no form of religion and undoubtedly were inspired by the governmental policy in the United
no minister of religion shall be forced upon any community or upon States, with regard to the marriages of the Indians, the Quakers, and
any citizen of the Islands; that, upon the other hand, no minister of the Mormons. The rule as to Indians marriages is, that a marriage
religion shall be interfered with or molested in following his calling, and between two Indians entered into according to the customs and laws
that the separation between state and church shall be real, entire, and of the people at a place where such customs and laws are in force, must
absolute." The notable state paper of President McKinley also enjoined be recognized as a valid marriage. The rule as to the Society of Quakers
the Commission, "to bear in mind that the Government which they are is, that they will be left to their own customs and that their marriages
establishing is designed . . . for the happiness, peace, and prosperity of will be recognized although they use no solemnization. The rule as to
the people of the Philippine Islands" and that, therefore, "the Mormon marriages is that the sealing ceremony entered into before a
measures adopted should be made to conform to their customs, their proper official by members of that Church competent to contract
habits, and even their prejudices. . . . The Philippine Bill and the Jones marriage constitutes a valid marriage.
Law reproduced the main constitutional provisions establishing
religious toleration and equality. The basis of human society throughout the civilized world is that of
marriage. Marriage in this jurisdiction is not only a civil contract, but, it
Executive and legislative policy both under Spain and the United States is a new relation, an institution in the maintenance of which the public
followed in the same path. For instance, in the Treaty of April 30, 1851, is deeply interested. Consequently, every intendment of the law leans
entered into by the Captain General of the Philippines and the Sultan toward legalizing matrimony. Persons dwelling together in apparent
of Sulu, the Spanish Government guaranteed "with all solemnity to the matrimony are presumed, in the absence of any counter-presumption
Sultan and other inhabitants of Sulu the free exercise of their religion, or evidence special to the case, to be in fact married. The reason is that
with which it will not interfere in the slightest way, and it will also such is the common order of society, and if the parties were not what
respect their customs." (See further Decree of the Governor-General they thus hold themselves out as being, they would be living in the
of January 14, 1881.) For instance, Act No. 2520 of the Philippine constant violation of decency and of law. A presumption established
Commission, section 3, provided that "Judges of the Court of First by our Code of Civil Procedure is "that a man and woman deporting
Instance and justices of the peace deciding civil cases in which the themselves as husband and wife have entered into a lawful contract of
parties are Mohammedans or pagans, when such action is deemed marriage.:" (Sec. 334, No. 28.) Semper praesumitur pro matrimonio
wise, may modify the application of the law of the Philippine Islands, Always presume marriage. (U. S. vs. Villafuerte and Rabano [1905], 4
except laws of the United States applicable to the Philippine Islands, Phil., 476; Son Cui vs. Guepangco, supra; U.S. vs. Memoracion and Uri
taking into account local laws and customs. . . ." (See further Act No. [1916], 34 Phil., 633; Teter vs. Teter [1884], 101 Ind., 129.)
 any consideration given to the provisions of section IX of General Order
Section IX of the Marriage Law is in the nature of a curative provision No. 68. We are free to admit that, if necessary, we would unhesitatingly
intended to safeguard society by legalizing prior marriages. We can see revoke the doctrine announced in the two cases above mentioned.
no substantial reason for denying to the legislative power the right to
remove impediments to an effectual marriage. If the legislative power We regard the evidence as producing a moral conviction of the
can declare what shall be valid marriages, it can render valid, marriages existence of the Mohammedan marriage. We regard the provisions of
which, when they took place, were against the law. Public policy should section IX of the Marriage law as validating marriages performed
aid acts intended to validate marriages and should retard acts intended according to the rites of the Mohammedan religion.
to invalidate marriages. (Coghsen vs. Stonington [1822], 4 Conn, 209;
Baity vs. Cranfill [1884], 91 N. C., 273.) There are other questions presented in the various assignments of
error which it is unnecessary to decide. In resume, we find the Chinese
The courts can properly incline the scales of their decisions in favors of marriage not to be proved and that the Chinaman Cheong Seng Gee
that solution which will mot effectively promote the public policy. That has only the rights of a natural child, and we find the Mohammedan
is the true construction which will best carry legislative intention into marriage to be proved and to be valid, thus giving to the widow and
effect. And here the consequences, entailed in holding that the the legitimate children of this union the rights accruing to them under
marriage of the Mora Adong and the deceased Cheong Boo, in the law.
conformity with the Mohammedan religion and Moro customs, was
void, would be far reaching in disastrous result. The last census shows Judgment is reversed in part, and the case shall be returned to the
that there are at least one hundred fifty thousand Moros who have lower court for a partition of the property in accordance with this
been married according to local custom. We then have it within our decision, and for further proceedings in accordance with law. Without
power either to nullify or to validate all of these marriages; either to special findings as to costs in this instance, it is so ordered.
make all of the children born of these unions bastards or to make them
legitimate; either to proclaim immorality or to sanction morality; either
to block or to advance settled governmental policy. Our duty is a
obvious as the law is plain.

In moving toward our conclusion, we have not lost sight of the
decisions of this court in the cases of United States vs. Tubban ([1915]),
29 Phil., 434) and United States vs. Verzola ([1916, 33 Phil., 285). We
do not, however, believe these decisions to be controlling. In the first
place, these were criminal actions and two Justice dissented.. In the
second place, in the Tubban case, the marriage in question was a tribal
marriage of the Kalingas, while in the Verzola case, the marriage had
been performed during the Spanish regime by a lieutenant of the
Guardia Civil. In neither case, in deciding as to whether or not the
accused should be given the benefit of the so-called unwritten law, was
 9. DURAN v. ABAD SANTOS which petitioner has no other plain speedy and adequate remedy in
the ordinary course of law.
G.R. No. L-99 November 16, 1945
The respondent judge, in answer to the petition, denies abuse of
PIO DURAN, petitioner, discretion and alleges that the reason for the denial of the petition for
vs. the release of the petitioner on bail was set forth in his order of
SALVADOR ABAD SANTOS, Judge of People's Court, respondent. October 15, 1945, which reads as follows:

Marciano Almario for petitioner. The detainee's adherence to the enemy as manifested by his
Judge Salvador Abad Santos of People's Court in his own behalf. utterances and activities during the Japanese domination especially as
Executive General of the Makapili; as Director of General of the
JARANILLA, J.: Kalibapi; as Vice-Minister of State for Home Affairs; member of the
Council of State; as member of the National Assembly under the
This certiorari proceeding was instituted by petitioner Pio Duran Japanese-sponsored Philippine Republic and as President of the New
against respondent Honorable Salvador Abad Santos, Judge of the Leaders Association historical facts of contemporary history and of
People's Court, praying that the order of said respondent judge of public knowledge which the petitioner cannot deny makes the case
October 12 and October 15, 1945, denying him bail not set aside and against him quite serious and may the necessitate the imposition of the
that he be allowed to put up a bail not to exceed P20,000 for his capital punishment.
provisional release. The pertinent allegations of the petitions are:
The evidence against the petitioner, according to said Appendix E of
That the petitioner is a Filipino political prisoner under the custody of the petition, consists of documentary proofs received by the Office of
the Director of Prisons in the New Bilibid Prison, Muntinglupa, Rizal, for Special Prosecutors from the Counter Intelligence Corps (CIC), which
not less than three months without any information having filed documentary evidence is considered confidential, having been
against him: That the petitioner filed a petition in the People's Court received with that injunction from the military authorities, and so the
for his release on bail and that the Solicitor General recommended that special prosecutor who appeared at the hearing in the court below
the petitioner be provisionally released on P35,000 bail; That after manifested that he was not free to divulge the contents thereof. The
hearing the statements of Special Prosecutor V. D. Carpio, in special prosecutor, however, mentioned in his statements before the
representation of the Solicitor General, and Atty. Marciano Almario, People's Court certain facts which are stated by the respondent judge
counsel for the petitioner, which statements are contained in Appendix in his answer to the petition.
E of the petition, the said respondent judge denied the petition for bail
on October 121, 1945, and refused to reconsider it by his order issued It appears that the petitioner was originally detained by the United
on October 15, 1945; and. States Army, which had investigated the acts of said petitioner and
gathered the corresponding evidence; and that after the hostilities
That the denial of said petition is a flagrant violation of the Constitution were ended, with the formal acceptance by Japan of the terms of the
of the Philippines and of section 19 of Commonwealth Act No. 682, and Allies, the said petitioner and the evidence gathered against him were
that the respondent has committed a great abuse of discretion for turned over to the Commonwealth Government and the Office of
Special Prosecutors for such action as may be warranted. The said re Charge to Grand Jury, 30 F. Cas., No. 18, 269; 2 Curt., 530; U. S. vs.
petitioner was detained by the military authorities from July 4 to Lagnason, 3 P. R. A. 247; 3 Phil., 472, U. S. vs. Abad, 1 Phil., 437),
September 26, 1945, when he was turned over to the Commonwealth penalized with capital punishment under article 114 of the Revised
Government, as may be gleaned from Appendix A filed by him in this Penal Code; and
case. As a military political prisoner, he could not be bailed out. Now
he invokes the provisions of Commonwealth Act No. 682 creating the Secondly, the recital by the special prosecutor of the supposed acts
People's Court and the Office of Special Prosecutor and specifically committed by the petitioner and referred to by the respondent judge
section 19 of said Act, said section reads partly as follows: in his order of October 15, 1945, above quoted, which acts were not
rebutted by counsel for the petitioner at the hearing on the petition
. . . Provided, however, That existing provisions of law to the contrary for bail, supports the conclusion and ruling of the People's Court.
notwithstanding, the aforesaid political prisoners may, in the
discretion of the People's Court, after due notice to the Office of It is true that during the oral argument in this case counsel for the
Special Prosecutors and hearing, be released on bail, even prior to the petitioner denied the imputation that the petitioner was the Executive
presentation of the corresponding information, unless the Court, finds General of the "Makapili," but he openly admitted that at the hearing
that there is strong evidence of the commission of a capital offense . . before the People's Court he did not make any effort to deny or
. disprove the said imputation or the others appearing in Appendix E of
the petition. In view thereof, how can we expect the People's Court not
As may be seen the above express provision of law, the release of a to take into consideration what had been stated then, appearing in said
detainee on bail, "even prior to the presentation of the corresponding Appendix E?
information," is purely discretionary on the People's Court find that
there is strong evidence of the commission of a capital offense," in Counsel's contention that there was strong have presented evidence
which case no bail whatever can be granted, as the provision appears to prove that there was strong evidence of the commission of a capital
mandatory. In other words, aside from that, the People's Court has the offense before People's Court could deny bail in this case was
absolute discretion to grant bail or not. Having invoked the clear substantially complied with, although the information charging the
provision of said section 19 of Act No. 682 for his temporary release on commission of the crime of treason had not as yet been filed. We are
bail, the petitioner cannot attack it as being illegal or unconstitutional. of the opinion and so hold that hearing set and held for the purpose
And it appearing that his case is covered by said exception of the law, (see Appendix E) was amply sufficient for the People's Court to be
it must be held that he cannot be admitted to bail. informed and to determine whether there was strong evidence of the
commission of a capital offense. The special prosecutor clearly
But even if we should concede counsel's contention, for the sake of informed the People's Court in the presence of the adverse counsel, in
argument, that the People's Court has not been given that discretion part, as follows:
to deny bail to the petitioner, still the conclusion of the respondent
judge is not unfounded for the following reasons: . . . I understand strict assurance has been made that all witnesses
required to make a testimony will be considered secret, and that their
First, the special prosecutor stated that the information to be filed in statements will be held strictly confidential and if we have to answer
the case would be for treason, which is "the highest of all crimes" (In that question as propounded by the Court, as I have said, I would be
violating the injunction given to us to consider those documents as to exploit the people and the natural resources, fill his pockets with as
confidential. I may venture, however, to explain by stating several facts much wealth as can be obtained irrespective of the means, and later
which we believe are so well known not only by the Court or by the return to his own native land to spend the declining years of his life in
Office of the Special Prosecutors by the people as a whole, which no comfortable indolence. He cares not for the defense of any of the
one can deny, not even the detained petitioner or anyone else, and colonies he may have acquired. At first sign of danger he pacts his bag
those facts are as follows: That the petitioner herein was a member of and baggage and runs away, leaving the native inhabitants to whatever
the Council of the State during the Japanese occupation. He was the fate awaits them." This appears in an article written by the detained
Director of General Affairs of the Kalibapi. He was elected member of petitioner in the Tribune of March 22, 1942.
the National Assembly under the puppet Republic. He was Vice-
Minister of State for Home Affairs. He was the Executive General of Further, the detained petitioner has said: "We, who have always
Makapili. Lastly, he became President of the New Leaders Association. doubted the sincerity of occidental disinterestedness in Asia, adhere to
These facts, I repeat, are things which I venture to say neither the the theory that it is only through the unified efforts of all of all Asiatics
petitioner nor anyone else can dare deny and therefore, l feel free to that the complete emancipation not only of the Philippines but of all
divulge without any violation of trust or confidence. Furthermore, I can Asia may be achieved, that is why we are co-operating solely and
state with assuredness that among the articles of association of the wholeheartedly with the Japanese military administration and urge our
Makapili, of which the petitioner was the Executive General, it is countrymen to do same." That come from a radio speech, reported in
stated: "To fight the common enemies side by side with other Asians the Tribune of May 6, 1942.
on any front in the present war." Another: "To collaborate
unreservedly and unstintedly with Imperial Japaneses Army and Navy Again, the detained petitioner has stated: "With the Japanese spirit
in the Philippines in such a way and means as may, in the joint moving the one hundred million people of Japan, who are solidly
judgment of the Imperial Japanese forces and the association behind the prosecution of the Greater East Asia War to a successful
(association meaning Makapili) be deemed necessary and fruitful." end, the Great Empire of Japan cannot be beaten in the current war."
That also came from an article reported in the newspaper, Tribune, July
The case of the petitioner herein by reason of his prominence in social 7, 1942.
political and court circles is such that this case has assumed pre-
eminence and interest of tremendous proportion not only in this And on January 30, 1945, there appeared an article in the Tribune an
country but perhaps even in the United States all by reason known item, as follows: "Lingayen front, Jan. 27. Makapili members thrust
associations, connections and statements made by the detained into American lines following the landing of the invaders in the
petitioner publicly and privately in his advocacy of the Greater East Asia Lingayen, gulf shores, it was revealed here. Forming death defying
Co-Prosperity Sphere and his advocacy of Japan as the leading nation squads, these youthful Filipinos stormed into enemy lines with fixed
in the Orient in the proposed Asiatic Monroeism on which he had been bayonets causing heavy casualties among the Americans."
working for so many years before and during the war, and I take it for
granted even now. And no one can dispute the facts that in his Up to the present time, the Office of Special Prosecutors has not the
advocacy of this program aforesaid the petitioner has made material time to check up all the evidence submitted to us by the
statements, as follows: "The flight, of MacArthur once again shows that military authorities. There are more than 4,000 such cases in our hands
the White men's in East Asia is mercenary and imperialistic. He comes aid unless we are given enough time it will be very hard for us to go
over this particular case. Right now, it our conviction that the evidence
against the petitioner is rather convincing. Neither have we formulated
the necessary information; but I venture to say that when we file the
necessary information to the Court it would not be for a simple crime
but for treason. I submit, however, the foregoing facts as above stated
to give the Court an idea of the nature of the evidence that will in due
time be adduced in support of the information that we will file. (See
Payao vs. Lesaca, 63 Phil., 210.)

In view of the foregoing, it cannot be stated that the petitioner has
been deprived of his liberty without due process of law, because his
petition for bail had been set for hearing and he was given an
opportunity to be heard when the above circumstances were
submitted to the People's Court, where it was made to appear
satisfactorily that he was being detained due to highly treasonable
activities against the Commonwealth of the Philippines and the United
States, which activities would be charged in the information for a
capital offense and punishable by death, and that the evidence in the
case strong.

Wherefore, we find and so hold that the petition is without merit and
therefore the same is hereby ordered dismissed with costs against the
petitioner. So ordered.

Feria, De Joya, and Pablo. JJ., and Buenaventura and Santos, JJ., concur.