FIRST DIVISION

[G.R. No. 72005. May 29, 1987.]

PHILIPPINE BRITISH ASSURANCE CO., INC., petitioner, vs.

THE HONORABLE INTERMEDIATE APPELLATE COURT,
SYCWIN COATING & WIRES, INC., and DOMINADOR
CACPAL, Chief Deputy Sheriff of Manila, respondents.

DECISION

GANCAYCO, J : p

This is a Petition for Review on Certiorari of the Resolution dated

September 12, 1985 of the Intermediate Appellate Court in AC-G.R. No. CR-
05409 1 granting private respondent's motion for execution pending appeal and
ordering the issuance of the corresponding writ of execution on the counterbond
to lift attachment filed by petitioner. The focal issue that emerges is whether an
order of execution pending appeal of a judgment may be enforced on the said
bond. In the Resolution of September 25, 1985 2 this Court as prayed for,
without necessarily giving due course to the petition, issued a temporary
restraining order enjoining the respondents from enforcing the order complaint
of.
The records disclose that private respondent Sycwin Coating & Wires,
Inc., filed a complaint for collection of a sum of money against Varian Industrial
Corporation before the Regional Trial Court of Quezon City. During the
pendency of the suit, private respondent succeeded in attaching some of the
properties of Varian Industrial Corporation upon the posting of a supersedeas
bond. 3 The latter in turn posted a counterbond in the sum of P1,400,000.00 4
thru petitioner Philippine British Assurance Co., Inc., so the attached properties
were released.

On December 28, 1984, the trial court rendered a Decision, the dispositive portion
of which reads:

"WHEREFORE, plaintiff's Motion for Summary Judgment is hereby

GRANTED, and judgment is rendered in favor of the plaintiff and
against the defendant Varian Industrial Corporation, and the latter is
hereby ordered:

1. To pay plaintiff the amount of P1,401,468.00, the

principal obligation with 12% interest per annum from the date
of default until fully paid;

2. To pay plaintiff 5% of the principal obligation as

liquidated damages;

3. To pay plaintiff P30,000.00 as exemplary damages;

 4. To pay plaintiff 15% of P1,401,468.00, the principal
obligation, as and for attorney's fees; and

5. To pay the costs of suit.

Accordingly, the counterclaim of the defendant is hereby DISMISSED

for lack of merit.

SO ORDERED." 5

Varian Industrial Corporation appealed the decision to the respondent

Court. Sycwin then filed a petition for execution pending appeal against the
properties of Varian in respondent Court. Varian was required to file its
comment but none was filed. In the Resolution of July 5, 1985, respondent Court
ordered the execution pending appeal as prayed for. 6 However, the writ of
execution was returned unsatisfied as Varian failed to deliver the previously
attached personal properties upon demand. In a Petition dated August 13, 1985
filed with respondent Court Sycwin prayed that the surety (herein petitioner) be
ordered to pay the value of its bond. 7 In compliance with the Resolution of
August 23, 1985 of the respondent Court herein petitioner filed its comment. 8
In the Resolution of September 12, 1985, 9 the respondent Court granted the
petition. Hence this action. prLL

It is the submission of private respondent Sycwin that without a previous

motion for reconsideration of the questioned resolution, certiorari would not lie.
While as a general rule a motion for reconsideration has been considered a
condition sine qua non for the granting of a writ of certiorari, this rule does not
apply when special circumstances warrant immediate or more direct action. 10
It has been held further that a motion for reconsideration may be dispensed with
in cases like this where execution had been ordered and the need for relief was
extremely urgent. 11
The counterbond provides:

"WHEREAS, in the above-entitled case pending in the Regional Trial Court, National
Capital Judicial Region, Branch LXXXV Quezon City, an order of Attachment was
issued against abovenamed Defendant;

WHEREAS, the Defendant, for the purpose of lifting and/or dissolving the order of
attachment issued against them in the above-entitled case, have offered to file a
counterbond in the sum of PESOS ONE MILLION FOUR HUNDRED THOUSAND
ONLY P1,400,000.00), Philippine Currency, as provided for in Section 5 Rule 57 of the
Revised Rules of Court.

NOW, THEREFORE, we, VARIAN INDUSTRIAL CORPORATION, as Principal and

the PHILIPPINE BRITISH ASSURANCE COMPANY, INC., a corporation duly
organized and existing under and by virtue of the laws of the Philippines, as Surety in
consideration of the above and of the lifting or dissolution of the order of attachment,
hereby jointly and severally, bind ourselves in favor of the above Plaintiff in the sum of
PESOS ONE MILLION FOUR HUNDRED THOUSAND ONLY (P1,400,000.00),
Philippine Currency, under the condition that in case the Plaintiff recovers judgment in
the action, and Defendant will, on demand, re-deliver the attached property so released to
the Officer of the Court and the same shall be applied to the payment of the judgment, or
in default thereof, the defendant and Surety will, on demand, pay to the Plaintiff the full
value of the property released.
EXECUTED at Manila, Philippines, this 28th day of June, 1984." 12

Sections 5, 12, and 17 of Rule 57 of the Revised Rules of Court also

provide:

SEC. 5. Manner of attaching property. — The officer executing the order shall without
delay attach, to await judgment and execution in the action, all the properties of the party
against whom the order is issued in the province, not exempt from execution, or so much
thereof as may be sufficient to satisfy the applicant's demand, unless the former makes a
deposit with the clerk or judge of the court from which the order issued, or gives a
counter-bond executed to the applicant, in an amount sufficient to satisfy such demand
besides costs, or in an amount equal to the value of the property which is about to be
attached, to secure payment to the applicant of any judgment which he may recover in the
action. The officer shall also forthwith serve a copy of the applicant's affidavit and bond,
and of the order of attachment, on the adverse party, if he be found within the province.

SEC. 12. Discharge of attachment upon giving counterbond. — At any time after an
order of attachment has been granted, the party whose property has been attached, or the
person appearing on his behalf, may, upon reasonable notice to the applicant, apply to the
judge who granted the order, or to the judge of the court in which the action is pending,
for an order discharging the attachment wholly or in part on the security given. The judge
shall, after hearing, order the discharge of the attachment if a cash deposit is made, or a
counter-bond executed to the attaching creditor is filed, on behalf of the adverse party,
with the clerk or judge of the court where the application is made, in an amount equal to
the value of the property attached as determined by the judge, to secure the payment of
any judgment that the attaching creditor may recover in the action. Upon the filing of
such counter-bond, copy thereof shall forthwith be served on the attaching creditor or his
lawyer. Upon the discharge of an attachment in accordance with the provisions of this
section the property attached, or the proceeds of any sale thereof, shall be delivered to the
party making the deposit or giving the counterbond aforesaid standing in place of the
property so released. Should such counterbond for any reason be found to be, or become,
insufficient, and the party furnishing the same fail to file an additional counterbond, the
attaching creditor may apply for a new order of attachment.

SEC. 17. When execution returned unsatisfied, recovery had upon bond. — If the
execution be returned unsatisfied in whole or in part, the surety or sureties on any
counter-bond given pursuant to the provisions of this rule to secure the payment of the
judgment shall become charged on such counterbond and bound to pay to the judgment
creditor upon demand, the amount due under the judgment, which amount may be
recovered from such surety or sureties after notice and summary hearing in the same
action. (Emphasis supplied.)

Under Sections 5 and 12, Rule 57 above reproduced it is provided that

the counterbond is intended to secure the payment of "any judgment" that the
attaching creditor may recover in the action. Under Section 17 of same rule it
provides that when "the execution be returned unsatisfied in whole or in part" it
is only then that "payment of the judgment shall become charged on such
counterbond." cdphil

The counterbond was issued in accordance with the provisions of Section

5, Rule 57 of the Rules of Court as provided in the second paragraph aforecited
which is deemed reproduced as part of the counterbond. In the third paragraph
it is also stipulated that the counterbond is to be "applied for the payment of the
judgment." Neither the rules nor the provisions of the counterbond limited its
application to a final and executory judgment. Indeed, it is specified that it
 applies to the payment of any judgment that may be recovered by plaintiff. Thus,
the only logical conclusion is that an execution of any judgment including one
pending appeal if returned unsatisfied may be charged against such a
counterbond.
It is well recognized rule that where the law does not distinguish, courts
should not distinguish. Ubi lex non distinguit nec nos distinguere debemos. 13
The rule, founded on logic, is a corollary of the principle that general words and
phrases in a statute should ordinarily be accorded their natural and general
significance. 14 The rule requires that a general term or phrase should not be
reduced into parts and one part distinguished from the other so as to justify its
exclusion from the operation of the law. 15 In other words, there should be no
distinction in the application of a statute where none is indicated. 16 For courts
are not authorized to distinguish where the law makes no distinction. They
should instead administer the law not as they think it ought to be but as they find
it and without regard to consequences. 17
A corollary of the principle is the rule that where the law does not make
any exception, courts may not except something therefrom, unless there is
compelling reason apparent in the law to justify it. 18 Thus where a statute grants
a person against whom possession of "any land" is unlawfully withheld the right
to bring an action for unlawful detainer, this Court held that the phrase "any
land" includes all kinds of land, whether agricultural, residential, or mineral. 19
Since the law in this case does not make any distinction nor intended to make
any exception, when it speaks of "any judgment" which may be charged against
the counterbond, it should be interpreted to refer not only to a final and executory
judgment in the case but also a judgment pending appeal.
All that is required is that the conditions provided for by law are complied
with, as outlined in the case of Towers Assurance Corporation v. Ororama
Supermart, 20

"Under Section 17, in order that the judgment creditor might recover from the surety on
the counterbond, it is necessary (1) that the execution be first issued against the principal
debtor and that such execution was returned unsatisfied in whole or in part; (2) that the
creditor make a demand upon the surety for the satisfaction of the judgment, and (3) that
the surety be given notice and a summary hearing on the same action as to his liability for
the judgment under his counterbond."

The rule therefore, is that the counterbond to lift attachment that is issued
in accordance with the provisions of Section 5, Rule 57, of the Rules of Court,
shall be charged with the payment of any judgment that is returned unsatisfied.
It covers not only a final and executory judgment but also the execution of a
judgment pending appeal. prLL

WHEREFORE, the petition is hereby DISMISSED for lack of merit and

the restraining order issued on September 25, 1985 is hereby dissolved with costs
against petitioner.

SO ORDERED.

Yap (Chairman), Narvasa, Melencio-Herrera, Cruz and Sarmiento, JJ., concur.

Feliciano, J., is on leave.

 (Philippine British Assurance Co., Inc. v. Intermediate Appellate Court, G.R. No.
|||

72005, [May 29, 1987], 234 PHIL 512-521)

[G.R. No. 115245. July 11, 1995.]

JUANITO C. PILAR, petitioner, vs. COMMISSION ON

ELECTIONS, respondent.

Diosdado G. Gozar for petitioner.

The Solicitor General for respondent.

SYLLABUS

1. ELECTION LAW; STATEMENT OF CONTRIBUTION AND

EXPENDITURE; THE TERM "EVERY CANDIDATE" MAKES NO
DISTINCTION OR QUALIFICATION. — Section 14 of R.A. No. 7166 states
that "every candidate" has the obligation to file his statement of contributions
and expenditures. Well-recognized is the rule that where the law does not
distinguish, courts should not distinguish. Ubi lex non distinguit nec nos
distinguere debemos. No distinction is to be made in the application of a law
where none is indicated. In the case at bench, as the law makes no distinction or
qualification as to whether the candidate pursued his candidacy or withdrew the
same, the term "every candidate" must be deemed to refer not only to a candidate
who pursued his campaign, but also to one who withdrew his candidacy. The
COMELEC, the body tasked with the enforcement and administration of all laws
and regulations relative to the conduct of an election, plebiscite, initiative,
referendum, and recall (The Constitution of the Republic of the Philippines, Art.
IX(C), Sec. 2[1]), issued Resolution No. 2348 in implementation or
interpretation of the provisions of Republic Act No. 7166 on election
contributions and expenditures. Section 13 of Resolution No. 2348 categorically
refers to "all candidates who filed their certificates of candidacy."
2. ID.; ID.; MANDATORY. — Section 14 of the law uses the word
"shall." As a general rule, the use of the word "shall" in a statute implies that the
statute is mandatory, and imposes a duty which may be enforced, particularly if
public policy is in favor of this meaning or where public interest is involved. We
apply the general rule.
3. ID.; ID.; ID.; REASON THEREFOR. — The state has an interest in
seeing that the electoral process is clean, and ultimately expressive of the true
will of the electorate. One way of attaining such objective is to pass legislation
regulating contributions and expenditures of candidates, and compelling the
publication of the same. Admittedly, contributions and expenditures are made
for the purpose of influencing the results of the elections. Thus, laws and
regulations prescribe what contributions are prohibited, or unlawful, and what
expenditures are authorized or lawful. Such statutes are not peculiar to the
Philippines. In "corrupt and illegal practices acts" of several states in the United
States, as well as in federal statutes, expenditures of candidates are regulated by
requiring the filing of statements of expenses and by limiting the amount of
money that may be spent by a candidate. Some statutes also regulate the
solicitation of campaign contributions. These laws are designed to compel
publicity with respect to matters contained in the statements and to prevent, by
such publicity, the improper use of moneys devoted by candidates to the
furtherance of their ambitions. These statutes also enable voters to evaluate the
influences exerted on behalf of candidates by the contributors, and to furnish
evidence of corrupt practices for annulment of elections. State courts have also
ruled that such provisions are mandatory as to the requirement of filing. It is not
improbable that a candidate who withdrew his candidate has accepted
contributions and incurred expenditures, even in the short span of his campaign.
The evil sought to be prevented by the law is not all too remote. It is noteworthy
that Resolution No. 2348 even contemplates the situation where a candidate may
not have received any contribution or made any expenditure. Such a candidate
is not excused from filing a statement, and is in fact required to file a statement
of that effect. Under Section 15 of Resolution No. 2348, it is provided that "[i]f
a candidate or treasurer of the party has received no contribution, made no
expenditure, or has no pending obligation, the statement shall reflect such fact."
4. ID.; ID.; DUTY THERETO, NOT EXTINGUISHED BY
CANDIDATES WITHDRAWAL OF CANDIDACY. — We note that under the
fourth paragraph of Section 73 of the B.P. Blg. 881 or the Omnibus Election
Code of the Philippines, it is provided that "[t]he filing or withdrawal of
certificate of candidacy shall not affect whatever civil, criminal or administrative
liabilities which a candidate may have incurred." Petitioner's withdrawal of his
candidacy did not extinguish his liability for the administrative fine.

DECISION

QUIASON, J : p

This is a petition for certiorari under Rule 65 of the Revised Rules of

Court assailing the Resolution dated April 28, 1994 of the Commission on
Elections (COMELEC) in UND No. 94-040.
I
On March 22, 1992, petitioner Juanito C. Pilar filed his certificate of
candidacy for the position of member of the Sangguniang Panlalawigan of the
Province of Isabela.
On March 25, 1992, petitioner withdrew his certificate of candidacy.
In M.R. Nos. 93-2654 and 94-0065 dated November 3, 1993 and
February 13, 1994 respectively, the COMELEC imposed upon petitioner the
fine of Ten Thousand Pesos (P10,000.00) for failure to file his statement of
contributions and expenditures.
In M.R. No. 94-0594 dated February 24, 1994, the COMELEC denied
the motion for reconsideration of petitioner and deemed final M. R. Nos. 93-
2654 and 94-0065 (Rollo, p. 14).
Petitioner went to the COMELEC En Banc (UND No. 94-040), which
denied the petition in a Resolution dated April 28, 1994 (Rollo, pp. 10-13).
 Hence, this petition for certiorari.
We dismiss the petition.
II
Section 14 of R.A. No. 7166 entitled "An Act Providing for
Synchronized National and Local Elections and for Electoral Reforms,
Authorizing Appropriations Therefore, and for Other Purposes" provides as
follows:

"Statement of Contributions and Expenditures: Effect of Failure

to File Statement. Every candidate and treasurer of the political party
shall, within thirty (30) days after the day of the election, file in duplicate
with the offices of the Commission the full, true and itemized statement
of all contributions and expenditures in connection with the election.

"No person elected to any public office shall enter upon the duties
of his office until he has filed the statement of contributions and
expenditures herein required.

"The same prohibition shall apply if the political party which

nominated the winning candidate fails to file the statement required herein
within the period prescribed by this Act.

"Except candidates for elective barangay office, failure to file the

statements or reports in connection with electoral contributions and
expenditures as required herein shall constitute an administrative offense
for which the offenders shall be liable to pay an administrative fine
ranging from One Thousand Pesos (P1,000.00) to Thirty Thousand Pesos
(P30,000.00), in the discretion of the Commission.

"The fine shall be paid within thirty (30) days from receipt of
notice of such failure; otherwise, it shall be enforceable by a writ of
execution issued by the Commission against the properties of the
offender.

"It shall be the duty of every city or municipal election registrar to

advise in writing, by personal delivery or registered mail, within five (5)
days from the date of election all candidates residing in his jurisdiction to
comply with their obligation to file their statements of contributions and
expenditures.

"For the commission of a second or subsequent offense under this

Section, the administrative fine shall be from Two Thousand Pesos
(P2,000.00) to Sixty Thousand Pesos (P60,000.00), in the discretion of
the Commission. In addition, the offender shall be subject to perpetual
disqualification to hold public office" (Emphasis supplied).

To implement the provisions of law relative to election contributions

and expenditures, the COMELEC promulgated on January 13, 1992 Resolution
No. 2348 (Re: Rules and Regulations Governing Electoral Contributions and
Expenditures in Connection with the National and Local Elections on May 11,
1992). The pertinent provisions of said Resolution are:

"Sec. 13 Statement of contributions and expenditures: Reminders

to candidates to file statements. Within five (5) days from the day of the
 election, the Law Department of the Commission, the regional election
director of the National Capital Region, the provincial election
supervisors and the election registrars shall advise in writing by personal
delivery or registered mail all candidates who filed their certificates of
candidacy with them to comply with their obligation to file their
statements of contribution and expenditures in connection with the
elections. Every election registrar shall also advise all candidates residing
in his jurisdiction to comply with said obligation." (Emphasis supplied)

"Sec. 17. Effect of failure to file statement. (a) No person elected

to any public office shall enter upon the duties of his office until he has
filed the statement of contributions and expenditures herein required.

"The same prohibition shall apply if the political party which

nominated the winning candidates fails to file the statement required
within the period prescribed by law.

"(b) Except candidates for elective barangay office, failure to file

statements or reports in connection with the electoral contributions and
expenditures as required herein shall constitute an administrative offense
for which the offenders shall be liable to pay an administrative fine
ranging from One Thousand Pesos (P1,000.00) to Thirty Thousand Pesos
(P30,000.00), in the discretion of the Commission.

"The fine shall be paid within thirty (30) days from receipt of
notice of such failure; otherwise, it shall be enforceable by a writ of
execution issued by the Commission against the properties of the
offender.

"For the commission of a second or subsequent offense under this

section, the administrative fine shall be from Two Thousand Pesos
(P2,000.00) to Sixty Thousand Pesos (P60,000.00), in the discretion of
the Commission. In addition, the offender shall be subject to perpetual
disqualification to hold public office."

Petitioner argues that he cannot be held liable for failure to file a

statement of contributions and expenditures because he was a "non-candidate,"
having withdraw his certificate of candidacy three days after its filing.
Petitioner posits that "it is . . . clear from the law that the candidate must have
entered the political contest, and should have either won or lost." (Rollo, p. 39)
Petitioner's argument is without merit.
Section 14 of R. A. No. 7166 states that "every candidate" has the
obligation to file his statement of contributions and expenditures.
Well-recognized is the rule that where the law does not distinguished,
courts should not distinguished. Ubi lex non distinguit nec nos distinguere
debemos (Philippine British Assurance Co. Inc. v. Intermediate Appellate
Court, 150 SCRA 520 [1987]; cf. Olfato v. Commission on Elections, 103
SCRA 741 [1981]). No distinction is to be made in the application of a law
where none is indicated (Lo Cham v. Ocampo, 77 Phil. 636 [1946]).
In the case at bench, as the law makes no distinction or qualification as
to whether the candidate pursued his candidacy or withdrew the same, the term
"every candidate" must be deemed to refer not only to a candidate who pursued
his campaign, but also to one who withdrew his candidacy.
 The COMELEC, the body tasked with the enforcement and
administration of all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum, and recall (The Constitution of the Republic
of the Philippines, Art. IX(C), Sec. 2[1]), issued Resolution No. 2348 in
implementation or interpretation of the provisions of Republic Act No. 7166 on
election contributions and expenditures. Section 13 of Resolution No. 2348
categorically refers to "all candidates who filed their certificates of candidacy."
Furthermore, Section 14 of the law uses the word "shall." As a general
rule, the use the word "shall" in a statute implies that the statute is mandatory,
and imposes a duty which may be enforced, particularly if public policy is in
favor of this meaning or where public interest is involved. We apply the
general rule (Baranda v. Gustilo, 165 SCRA 757 [1988]; Diokno v.
Rehabilitation Finance Corporation, 91 Phil. 608 [1952]).
The state has an interest in seeing that the electoral process is clean, and
ultimately expressive of the true will of the electorate. One way of attaining
such objective is t to pass legislation regulating contributions and expenditures
of candidates, and compelling the publication of the same. Admittedly,
contributions and expenditures are made for the purpose of influencing the
results of the elections (B.P. Blg. 881, Sec. 94; Resolution No. 2348, Sec. 1).
Thus, laws and regulations prescribe what contributions are prohibited (B.P.
Blg. 881, Sec. 95; Resolution No. 2348, Sec. 4), or unlawful (B.P. Blg. 881,
Sec. 96), and what expenditures are authorized (B.P. Blg. 881, Sec. 102; R.A.
No. 7166, Sec. 13; Resolution No. 2348, Sec. 7) or lawful (Resolution No.
2348, Sec. 8).
Such statutes are not peculiar to the Philippines. In "corrupt and illegal
practices acts" of several states in the United States, as well as in federal
statutes, expenditures of candidates are regulated by requiring the filing of
statements of expenses and by limiting the amount of money that may be spent
by a candidate. Some statutes also regulate the solicitation of campaign
contributions (26 Am Jur 2d, Elections S 287). These laws are designed to
compel publicity with respect to matters contained in the statements and to
prevent, by such publicity, the improper use of moneys devoted by candidates
to the furtherance of their ambitions (26 Am Jur 2d, Elections S 289). These
statutes also enable voters to evaluate the influences exerted on behalf of
candidates by the contributors, and to furnish evidence of corrupt practices for
annulment of elections (Sparkman v. Saylor [Court of Appeals of Kentucky],
180 Ky. 263, 202 S.W. 649 [1918]).
State courts have also ruled that such provisions are mandatory as to the
requirement of filing (State ex rel. Butchofsky v. Crawford [Court of Civil
Appeals of Texas], 269 S. W. 2d 536 [1954]; Best v. Sidebottom, 270 Ky. 423,
109 S.W. 2d 826 [1937]; Sparkman v. Saylor, supra.)
It is not improbable that a candidate who withdrew his candidacy has
accepted contributions and incurred expenditures, even in the short span of his
campaign. The evil sought to be prevented by the law is not all too remote.
It is noteworthy that Resolution No. 2348 even contemplates the
situation where a candidate may not have received any contribution or made
any expenditure. Such a candidate is not excused from filing a statement, and
is in fact required to file a statement to that effect. Under Section 15 of
Resolution No. 2348, it is provided that "[i]f a candidate or treasurer of the
 party has received no contribution, made no expenditure, or has no pending
obligation, the statement shall reflect such fact."
Lastly, we note that under the fourth paragraph of Section 73 of the B.P.
Blg. 881 or the Omnibus Election Code of the Philippines, it is provided that
"[t]he filing or withdrawal of certificate of candidacy shall not affect whatever
civil, criminal or administrative liabilities which a candidate may have
incurred." Petitioner's withdrawal of his candidacy did not extinguish his
liability for the administrative fine.
WHEREFORE, the petition is DISMISSED.
Narvasa, C.J., Feliciano, Regalado, Davide, Jr., Romero, Bellosillo,
Puno, Vitug, Mendoza and Francisco, JJ., concur.
Padilla, J., joins J. Melo in his dissent.
Melo, J., see dissenting opinion.
Kapunan, J., is one leave.

Separate Opinions
MELO, J ., dissenting:

The majority opinion is to the effect that every candidate, including one
who has withdrawn his certificate of candidacy, is obliged to file his statement
of contributions and expenditures in line with Section 14 Republic Act No.
7166 vis-a-vis the pertinent portions of Comelec Resolution No. 2348. I must
concede that the use of the word "shall" in the main statute as well as the
implementing rules generally suggest mandatoriness as to cover all candidates.
But is an aspirant for public office who had a sudden change of heart, so
to speak, still considered a candidate to begin with? I am of the impression that
he is not and is thus not bound to render an accounting subsequent to election
for the simple reason that the term 'candidate' is used to designate a person who
actually submits himself and is voted for at our election (Santos vs. Miranda,
35 Phil. 643, 648 (1916) citing State vs. Hirsch, 125 Ind., 207; 9 L.R.A. 107;
Moreno, Philippine Law Dictionary, 1972 2nd ed., p. 84). Certainly, one who
withdraws his certificate of candidacy 3 days after the filing thereof, can be
voted for at an election. And considering the shortness of the period of 3 days
from the filing to the withdrawal of the certificate of candidacy, petitioner
cannot be accused, as indeed there is no such charge, of utilizing his aborted
candidacy for purposes to raise funds or to exhort money from other candidates
in exchange for the withdrawal.
I, therefore, vote to grant the petition.
||| (Pilar v. COMELEC, G.R. No. 115245, [July 11, 1995], 315 PHIL 851-860)
 [G.R. No. 110898. February 20, 1996.]

PEOPLE OF THE PHILIPPINES, petitioner, vs. HON.

JUDGE ANTONIO C. EVANGELISTA, as Presiding Judge of
Branch XXI, 10th Judicial Region, RTC of Misamis Oriental,
Cagayan de Oro City, and GRILDO S. TUGONON,
respondents.

The Solicitor General for petitioner.

Carlito P. Somido for private respondent.

SYLLABUS

1. REMEDIAL LAW; SPECIAL CIVIL ACTION, CERTIORARI; GRANT

OF PROBATION TO ACCUSED AFTER APPEAL, A GRAVE ABUSE OF
DISCRETION. — It was possible under P.D. No. 986, otherwise known as the
Probation Law, for the accused to take his chances on appeal by allowing probation
to be granted even after an accused had appealed his sentence and failed to obtain
an acquittal, just so long as he had not yet started to serve the sentence. The law
was, however, amended by P.D. No. 1990 which took effect on January 15, 1986
precisely to put a stop to the practice of appealing from judgments of conviction
even if the sentence is probationable for the purpose of securing an acquittal and
applying for probation only if the accused fails in his bid. Since private respondent
filed his application for probation on December 28, 1992, after P.D. No. 1990 had
taken effect, it is covered by the prohibition that "no application for probation shall
be entertained or granted if the defendant has perfected the appeal from the
judgment of conviction" and that "the filing of the application shall be deemed a
waiver of the right to appeal." Having appealed from the judgment of the trial court
and having applied for probation only after the Court of Appeals had affirmed his
conviction, private respondent was clearly precluded from the benefits of probation.
WHEREFORE, the petition is GRANTED and the order of April 23, 1993 of the
Regional Trial Court of Misamis Oriental (Branch 21) granting probation to private
respondent Grildo S. Tugonon is SET ASIDE.

2. CRIMINAL LAW; PROBATION LAW; PROHIBITION AGAINST

PERFECTION OF APPEAL; APPEAL REFERS TO THAT TAKEN FROM
JUDGMENT OF CONVICTION BY TRIAL COURT. — The ruling of the RTC
that "[h]aving not perfected an appeal against the Court of Appeals decision, [private
respondent] is, therefore, not covered by [the amendment in] P.D. 1990" is an
obvious misreading of the law. The perfection of the appeal referred in the law refers
to the appeal taken from a judgment of conviction by the trial court and not that of
the appellate court, since under the law an application for probation is filed with the
trial court which can only grant the same "after it shall have convicted and sentenced
[the] defendant, and upon application by said defendant within the period for
perfecting an appeal." Accordingly, in Llamado v. Court of Appeals, it was held that
the petitioner who had appealed his sentence could not subsequently apply for
probation.
 DECISION

MENDOZA, J : p

Private respondent Grildo S. Tugonan was charged with frustrated homicide

in the Regional Trial Court of Misamis Oriental (Branch 21), the information against
him alleging —

That on or about the 26th day of May, 1988, at more or less 9:00
o'clock in the evening at Barangay Poblacion, Municipality of Villanueva,
Province of Misamis Oriental, Republic of the Philippines and within the
jurisdiction of this Honorable Court, the abovenamed accused with intent
to kill and with the use of a knife, which he was then conveniently
provided of, did then and there willfully, unlawfully and feloniously
assault, attack and stab Roque T. Bade thereby inflicting upon him the
following injuries, to wit:

Stab wound, right iliac area,

0.5 cm. penetrating non
perforating lacerating posterior
peritoneum, 0.5 cm.

thus performing all the acts of execution which would produce the crime
of Homicide as a consequence but which, nevertheless, did not produce it
by reason of causes independent of the will of the accused, that is by
timely medical attendance which prevented his death.

CONTRARY TO and in violation of Article 249 in relation to

Article 6 of the Revised Penal Code.

After trial he was found guilty and sentenced to one year of prision
correccional in its minimum period and ordered to pay to the offended party
P5,000.00 for medical expense, without subsidiary imprisonment, and the costs. The
RTC appreciated in his favor the privileged mitigating circumstances of incomplete
self-defense and the mitigating circumstance of voluntary surrender.

On appeal the Court of Appeals affirmed private respondent's conviction but

modified his sentence by imposing on him an indeterminate penalty of 2 months of
arresto mayor, as minimum, to 2 years and 4 months of prision correccional, as
maximum. 1

On December 21, 1992, respondent Judge Antonio C. Evangelista of the

RTC set the case for repromulgation on January 4, 1993.

On December 28, 1992, private respondent filed a petition for probation, 2

alleging that (1) he possessed all the qualifications and none of the disqualifications
for probation under P.D. No. 968, as amended; (2) the Court of Appeals had in fact
reduced the penalty imposed on him by the trial court; (3) in its resolution, the Court
of Appeals took no action on a petition for probation which he had earlier filed with
it so that the petition could be filed with the trial court; (4) in the trial court's
decision, two mitigating circumstances of incomplete self-defense and voluntary
surrender were appreciated in his favor; and (5) in Santos To v. Paño, 3 the Supreme
Court upheld the right of the accused to probation notwithstanding the fact that he
had appealed from his conviction by the trial court.

On February 2, 1993, the RTC ordered private respondent to report for

interview to the Provincial Probation Officer. The Provincial Probation Officer on
the other hand was required to submit his report with recommendation to the court
within 60 days. 4

On February 18, 1993, Chief Probation and Parole Officer Isias B.

Valdehueza recommended denial of private respondent's application for probation
on the ground that by appealing the sentence of the trial court, when he could have
then applied for probation, private respondent waived the right to make his
application. The Probation Officer thought the present case to be distinguishable
from Santos To v. Paño in the sense that in this case the original sentence imposed
on private respondent by the trial court (1 year of imprisonment) was probationable
and there was no reason for private respondent not to have filed his application for
probation then, whereas in Santos To v. Paño the penalty only became probationable
after it had been reduced as a result of the appeal.

On April 16, 1993 Valdehueza reiterated 5 his "respectful recommendation

that private respondent's application for probation be denied and that a warrant of
arrest be issued for him to serve his sentence in jail."

The RTC set aside the Probation Officer's recommendation and granted
private respondent's application for probation in its order of April 23, 1993. 6 Hence
this petition by the Prosecution.

The issue in this case is whether the RTC committed a grave abuse of its
discretion by granting private respondent's application for probation despite the fact
that he had appealed from the judgment of his conviction of the trial court.

The Court holds that it did.

Until its amendment by P.D. No. 1990 in 1986, it was possible under P.D.
No. 986, otherwise known as the Probation Law, for the accused to take his chances
on appeal by allowing probation to be granted even after an accused had appealed
his sentence and failed to obtain an acquittal, just so long as he had not yet started
to serve the sentence. 7 Accordingly, in Santos To v. Paño, it was held that the fact
that the accused had appealed did not bar him from applying for probation especially
because it was as a result of the appeal that his sentence was reduced and made the
probationable limit.

The law was, however, amended by P.D. No. 1990 which took effect on
January 15, 1986 8 precisely to put a stop to the practice of appealing from
judgments of conviction even if the sentence is probationable for the purpose of
securing an acquittal and applying for probation only if the accused fails in his bid.
Thus, as amended by P.D. No. 1990, §4 of the Probation Law now reads:

§4. Grant of Probation. — Subject to the provisions of this

Decree, the trial court may, after it shall have convicted and sentenced a
defendant, and upon application by said defendant within the period for
perfecting an appeal, suspend the execution of the sentence and place the
 defendant on probation for such period and upon such terms and
conditions as it may deem best; Provided, That no application for
probation shall be entertained or granted if the defendant has perfected
the appeal from the judgment of conviction.

Probation may be granted whether the sentence imposes a term of

imprisonment or a fine only. An application for probation shall be filed
with the trial court. The filing of the application shall be deemed a waiver
of the right to appeal.

An order granting or denying probation shall not be appealable.

(Emphasis added)

Since private respondent filed his application for probation on December 28,
1992, after P.D. No. 1990 had taken effect, 9 it is covered by the prohibition that
"no application for probation shall be entertained or granted if the defendant has
perfected the appeal from the judgment of conviction" and that "the filing of the
application shall be deemed a waiver of the right to appeal." Having appealed from
the judgment of the trial court and having applied for probation only after the Court
of Appeals had affirmed his conviction, private respondent was clearly precluded
from the benefits of probation.

Private respondent argues, however, that a distinction should be drawn

between meritorious appeals (like his appeal notwithstanding the appellate court's
affirmance of his conviction) and unmeritorious appeals. But the law does not make
any distinction and so neither should the Court. In fact if an appeal is truly
meritorious the accused would be set free and not only given probation. Private
respondent's original sentence (1 year of prision correccional in its minimum
period) and the modified sentence imposed by the Court of Appeals (2 months of
arresto mayor, as minimum, to 2 years and 4 months of prision correccional, as
maximum) are probationable. Thus the fact that he appealed meant that private
respondent was taking his chances which the law precisely frowns upon. This is
precisely the evil that the amendment in P.D. No. 1990 sought to correct, since in
the words of the preamble to the amendatory law, "probation was not intended as an
escape hatch and should not be used to obstruct and delay the administration of
justice, but should be availed of at the first opportunity by offenders who are willing
to be reformed and rehabilitated."

The ruling of the RTC that "[h]aving not perfected an appeal against the
Court of Appeals decision, [private respondent] is, therefore, not covered by [the
amendment in] P.D. 1990" is an obvious misreading of the law. The perfection of
the appeal referred in the law refers to the appeal taken from a judgment of
conviction by the trial court and not that of the appellate court, since under the law
an application for probation is filed with the trial court which can only grant the
same "after it shall have convicted and sentenced [the] defendant, and upon
application by said defendant within the period for perfecting an appeal."
Accordingly, in Llamado v. Court of Appeals, 10 it was held that the petitioner who
had appealed his sentence could not subsequently apply for probation.

WHEREFORE, the petition is GRANTED and the order of April 23, 1993
of the Regional Trial Court of Misamis Oriental (Branch 21) granting probation to
private respondent Grildo S. Tugonon is SET ASIDE.
 SO ORDERED.

Regalado, Romero and Puno, JJ., concur.

||| (People v. Evangelista, G.R. No. 110898, [February 20, 1996], 324 PHIL 80-88)

[G.R. No. L-11176. June 29, 1959.]

THE COLLECTOR OF INTERNAL REVENUE, petitioner, vs.

MANILA LODGE NO. 761 OF THE BENEVOLENT &
PROTECTIVE ORDER OF ELKS and THE COURT OF TAX
APPEALS, respondents.

Solicitor General Ambrosio Padilla and Solicitor Frine C. Zaballero for

petitioner.

Manuel O. Chan for respondent Lodge.

SYLLABUS

1. TAXATION; PRIVILEGE TAX; DEALER OF LIQUOR AND

TOBACCO, WHEN MAY BE SUBJECTED TO PRIVELEGE TAX. — The
"retail liquor dealers", "retail dealers in fermented liquors" land "retail tobacco
dealers" required in section 193 of the Tax Code, in relation to section 178 of
the same, to pay taxes, are those engaged in teh "business" of selling liquor and
tobacco.
2. ID.; ID.; NON-PROFIT ORGANIZATIONS; LIABILITY FOR THE
PAYMENT OF PRIVILEGE TAX. — The plain and ordinary meaning of
"business" is restricted to activities or affairs where profit is the purpose, or
livelihood is the motive. As the term "business" is used without any qualification
in the aforementioned sections of the Tax Code, it should be construed in its
plain and ordinary meaning. Thus, in the case at bar the respondent club cannot
be considered as engaged in the "business" of selling liquor and tobacco because,
in pursuance of its purpose as a fraternal social club, it sells on retail at its
clubhouse, liquor, cigars and cigarettes, on a very limited scale only to its
members and their guests, providing just enough margin to cover operational
expenses without intention to obtain profit. Hence, it cannot be held liable for of
the privilege taxes required by section 193 of the Tax Code.

DECISION

CONCEPCION, J : p

This is an appeal taken by the Collector of Internal Revenue from a

decision of the Court of Tax Appeals holding that the Manila Lodge No. 761 of
the Benevolent & Protective Order of Elks "is not liable for privilege taxes
onits sale by retail of liquor and tobacco exclusively to its members and their
guests," and reversing and setting aside a decision of said appellant to the
contrary, dated November 19, 1953, without special pronouncement as to
costs.
The uncontested facts are set forth in the decision of said Court, from
which we quote:
"This is an appeal from two decisions of teh respondent Collector
of Internal Revenue assessing and demanding from the petitioner herein
the sums of P1,203.50 and P332.00, respectively representing fixed taxes
as retail dealer in liquor, fermented liqour, and tobacco, allegedly due
from petitioner for the period from the 4th quarter of 1946 to 1953 and
the period from 1954-1955 pursuant to subsections (i), (K) and (n) of
section 193 of the Tax Code, in relation to 178 of the same Code.
"The petitioner, Manila Lodge No. 761 is admitted a fraternal,
civic, non-stock, non-profit organization duly incorporated under
Philippine laws. It owns and operates a clubhouse located at Dewey
Boulevard, Manila, wherein it sells at retail, liquor, fermented liquor,
cigar and cigarettes only to its members and their guests. B.I.R. agents
discovered that the Manila Elks Club had not paie for the period in
question the privilege tax for retail liquor dealer (B-4), retail dealer in
fermented liquor (B-7), and retail tobacco dealer (B-9-a) prescribed in
section 193 of the Tax Code.
"On November 19, 1953, the Collector of Internal Revenue
assessed against and demanded the petitioner the payment of the sum of
P1,203.50 representing fixed taxes, as retail dealer, for the period from its
4th quarter of 1946 to1953, exclusive of the suggested compromise
penalty of P80.00. The petitioner, claiming that it was exempted from the
payment of the privilege taxes in question, requested that the said
assessment be reviewed by the Conference Staff of the Bureau of Internal
Revenue. The Conference Staff, after due hearing, upheld and reiterated
the assessment made by the respondent Collector of Internal Revenue.
Forthwith, the petitioner appealed to this Court on June 1, 1955.
"During the pendency of the original petition for review in the
above-entitled cas, respondent issued another assessment covering fixed
taxes for the years 1954 to 1955 in the amount of P332.00, exclusive of
the suggested compromise penalty of P50.00. Consequently, petitioner
woth leave of Court filed a supplemental petition for review which
included the latter assessment.
"Petitioner bases its claim for exemption from the payment of the
privilege taxes in question on the grounds that it is not engaged in the
business of selling at retail liquor, fermented liquor, and tobacco because
the sale of these aforementioned specific goods is made only to members
of the club and their guests' on a very limited scale in pursuance only of
its general purpose as a fraternal social club, to provide comfort,
receation,and vonvenience to such members, and merely to provide
enough margin to cover operational expenses.' (Petition's Memo p. 3).
"Respondent, on the other hand, maintains that persons selling
articles subject to specific tax, such as cigars, tobacco, oquor and the like
are subject to the taxes imposd by section 193 of the Tax Code,
irrespective of whether or not they made profit, and whether or not they
are civic or fraternal clubs selling only to their members and their guests.
This contention si based on a ruling promulgated by the Bureau of Internal
Revenue made in 1921."
Petitioner herein maitains that:
"1. The respondent Court of Tax Appeals erred in reversing the
decision of the petitioner-appellant which held the respondent club liable
for fixed taxes.
"2. The respondent Court of Tax Appeals erred in holding that
before respondent club's liability for the privilege taxes imposed by
section 193 of the Tax Code attaches it is necessary that it be engaged in
the 'business' of selling liquor and tobacco.
"3. The respondent Court of Tax Appeals erred in holding that a
fraternal, civic, non-stock, non-profit organization like the respondent
club selling at retail liquor and tobacco only to its members and their
guests woth just enough margin to cover operational expenses should not
be held liable for the fixed taxes incident to the business of selling at retail,
liquor and tobacco.
"4. The respondent Court of Tax Appeals erred in holding that the
administrative construction of the Bureau of Internal Revenue on the
matter in question is outside the ambit of, and is incosistent with, the
Revised administrative Code and Tax Code."
This appeal is untenable. In the language of the Court of Tax Appeals:
"The bone of contention between the two parties herein . . ., lies
on the proper interpretation and application of the pertinent provisions of
Tax Code, namely subsections (i), (k) and (n) of section 193 in relation to
section 178 of the Tax Code, which wer quote hereunder:
'Sec. 178. Payment of provilege taxes. — A privilege tax must be
paid before any business or occupation hereinafter specified can be
lawfully begun or pusued. The tax on business is payable for every
separate or distinct establishment or place where the business subject to
the tax is conducted; and one occupation or line of business does not
become exempt by being conducted with some other occupation or
business for which such tax has been paid.
'The occupation tax must be paid by each individual engaged in a
calling subject thereto; the tax on a business by the person, firm, or
company conducting the same.'(Emphasis supplied.)
SEC. 193. Amount of tax on business.-Fixed taxes on business
shall be collected os follows, the amount stated being for the whole year
when not otherwise specified:
(j) Retail liquor dealers, on hundred pesos.
(k) Retail dealers in fermented liquors, fifty pesos.
(n) wholesale tobacco dealers, sixty pesos; retail tobacco dealers,
sixteen pesos."
"The aforequoted provisions of the Tax Code are clear and precise.
The privilege taxes prescribed in section 193 of the Tax Code in relation
to section 178 of the same, are to be imposed only on persons or entities
who engage in the activities memtioned or classified therein for 'business'
purposes. This evident intention of the law becomes more palpable when
we take into consideration the fact that the drafters of our Tax Code had
grouped the aforequoted provisions of law under one general division of
the Tax Code headed as 'Title V, Privilege Taxes on Business and
occupation.'
"It is not therefore intirely correct to maintain as respondent does,
that all persons selling articles subject to specific taxes, like liquor and
tobacco, should likwise be subject to the fixed taxes imposed by section
193 of the Tax Code. We believe, that in order that these persons should
be subjected to the privilege taxes imposed by the aforementioned section
of the Tax Code, it is necessary that they be engaged in the 'business' of
selling liquor and tobacco, otherwise the privilege taxes as a dealer of
liquor and tobacco can not attach.
"At this juncture a definition of the word 'business is in order and
we have the following:
'The word 'business' in its ordinary and common use is employed
to designate human efforts which have for their and living or reward; it is
not commonly used as descriptive of charitable, religious, educational or
social agencies.' (Ballaantine's Law Dictionary, 1948 Ed. P. 179)
'Business — 'that which busies or engages time, attention or labor
as a principal serious concern or interest; any particular occupation or
employment habitually engaged in specially for livelihood or gain.' (Vol.
1, 1049 Merriam-Webster's New International Dictionary, 2nd Ed. p.
362.).
"Other definitions of the term business' as given by judicial
pronouncement are found in Volume V. Words and Phrases, page 999 as
follows:
'Business is a word of large signification, and denotes the
employment or occupation in which a person is engaged to procure a
living'. (citing: goddard v. chaffee, 84 Mass (Allen) 395; 79 Am Dec.
796). 'Business in common speech means habitual or regular occupation
that a party is engaged in with a view to winning a livelihood or some
gain.' (Citiong: In re Lemont, 41 p. 2D, 497, 502)
'An enterprise not conducted as a means of livilihood or for profit
does not come within the ordinary meaning of the terms, 'business, trade
or industry.' (Citing City of Rochester vs. Rochester Girl's Home, 194
N.Y.S. 236, 237).
'The term 'business as used in law imposing a license tax on
business, trades, etc. ordinarily means business in the trade or commercial
sense only, carried on with a view to profit or livelihood.' Citing: Cuzner
vs. california Club 100 p. 868, 867, 155, Cal. 303, 20 L.R.A. N.S. 1095).
'From the foregoing definitions, it is evident that the plain,
ordinary meaning of 'business' is restricted to activities or a affairs where
profit is the purpose, or livlihood is the motive. The term 'business' being
used without any qualification insection 193 of the Tax Code in relation
to section 178 of the same, should therefore be construed in its plain and
ordinary meaning, restricted to activities for profit or livlihood.
'With these considerations in mind, we now come to the question
of whether or not the Manila Elks Club is engaged in the 'business' of
selling liquor and tobacco.
"Respondent, in paragraph 1 of his answer, admits that the
petitioner herein, Manila Elks Club is a fraternal, civic, non-stock, non-
profit organization. It has been established without contradiction that the
Manila Elks Club, in pursuancen of its purpose as a fraternal social club,
sells on retail at its clubhouse on dewey Boulevard, liquor, cigars and
cigarettes, on a very limited scale, only to its memberes and their guests,
providing just enough margin to cover operational expenses without
intention to obtain profit. such being the case then, the Manila Elks Club
cannot be considered as engaged in the 'business' of selling liquor and
tobacco.
'Where the corporation handled no money except such as was
necessary to cover operational expenses, conducted no business for itself,
and engaged in no transactions that contemplated a profit for itself — such
a corporation is considered not organized for profit under the General
Corporation Law.' (Read v. Tidewater Coal Exch., 116 a 898, 904, cited
in Vol. 34, Words & Phrases, p. 220, defining profits; emphasis provided.)
"The petitioner herein, Manila Elks club, jot being engaged in the
business of selling at retail liquor and tobacco, cannot therefore be held
liable for the privilege taxes required by section 193, subsections (1), (k)
and (n). The wight of American authorities enhances the strength of our
findings that a fraternal, civiv, non-stock, non-profit organization, like the
Elks Club, selling at retail lequor and tobacco only to its members and
their guests in pursuance woth its general purpose as a fraternal social club
with just enough margin to cover operational expenses, should not be held
liable for the fixed taxes incident to the business of selling at retail, liquor
and tobacco.
'A bonafide social club, which disposes of liquors at its clubhouse
to members and their guests at a fixed charge as incident to the general
purposes of the organiztional is not required to take out a license by Rev.
Laws No. 3777-3785, approved March 15, 1905, which provides for a
license upon the business of disposing intoxicating liquors; the term
business in such statute meaning business in the trade or commercial
sense. (State v. University Club, 130 p. 468, 470; 35 Nev. 475; 44 L.R.A.,
N.S. 1026).
A social club, not organized for the purpose of evading the liquor
laws, bu which furnishes its members with liquors and refreshments
without profit to itself, is not a retail liquor dealer, within the statute
imposing a license tax on all persons dealing in, selling or disposing of
intoxicating liquors by retail.' (Barden v. Montan Club, 25 P. 1042, 10
Mont. 330, II L.R.A. 539).
'Acts 1881, C. 149, authorizing taxation of liquors dealers, does
not include a social club maintaining a library, giving musical
entertainments, and furnishing meals for its members, which keeps a
small stock of liquor; the members paying for its drink as it is taken, but
no profit being made on such sales.' (Tennessee Club of Memphis v.
Dwyer, 79 Tenn. (11 Lea) 452, 461, 47 Am. Rep. 298.)
'A social club composed of members who have no proprietary
interest in the assets which provides a reading room, restaurant, bar room,
library, billiard rooms and sitting rooms for its members, the expenses of
which are defrayed of which are defrayed by annual dues from each
member, and by payments made by the members for food and drinks, is
not engaged in the business of a retail liquor dealer, within section 11 of
the Louisians License Tax Laws." (La Ann. 585, 20 L.R.A. 185).
Respondent, however, insists that the petitioner should pay the privilege
tax on the sale at retail of liquor and tobacco because this has been
allegedly the practice consistently followed by the Bureau of Internal
Revenue since 1921 and because section 1464 of the Revised
Administrative Code under which said ruling was then based had been
reenacted by the legislature as section 193 of the National Internal
Revenue Code. Thus, respondent contends, that the policy of the Bureau
of Internal Revenue has therefore gained 'approval by legislative
reenactments.'
 "The alleged administrative practice is founded upon the
following ruling rendered in 1921.
'Clubs selling exclusively to members thereof liquors and other
products on which the specific tax is imposed should pay the privilege tax
corresponding to the business engaged in. The fact that such products are
sold at cost to the members of the club does not affect the club's liability
to tax.' (Ruling, Oct. 13, 1921, B.I.R. 105.02; Exh. 3 pp. 66-69. BIR
records.)
"We do not agree with the contention of the respondent. While
there is admittedly a ruling on this point in 1921, there is no showing that
such has been along-continued practoce. Be that as it may, any such
adminitrative construction must be within the ambit of, and must be
consistent with the Revised Adminitrative Code and the Tax Code. It is
likewise the rule that where the statute is unabiguous, an administrative
construction is unwarranted (U.S. vs. Missouri P. R. Co. 269, 73 L. Ed.
322) and no construction may be made to restrict or enlarge the meaning
of an Act. (Blatt vs. U.S., 305 U.S. 83 L. ED. 167).
"An examination of section 1464 of the Revised Administrative
Code taken connection with section 1453 of the same, discloses the fact
that aside from the change in rates to be paid and the arrangement of the
classification of business enumerated therein, section 193 of the present
Tax code is a verbatim copy of the aforementioned provisions of the
Revised Administrative Code. The policy or principle followed by the
said code regarding privileges taxes, i.e. that the privilege taxes are
payable only by those persons or entities engaged in the business
enurerated in section 1464 of the said Code, has not suffered any change,
and the same still obtains under our present Tax Code. In the absence of
a showing that the legislative body had been apprised of the aforesaid
ruling, what has gained legislative approval thru reenactment is, we
believe, the policy behind the above-mentioned provision of the Revised
Administrative Code of taxing persons engaged in business and not the
alleged practice following the adminitrative ruling of 1921. We believe
that no amount of trenchant adherence to an established practice may
justify its continued application where it is clear and manifest that the
same is not consonance woth the policy of the legislature as defined by
law."
It is urged by appellant that emphasis should be placed not on the term
"business", but on the phrases "retail liquor dealers", in fermented liquors" and
"retail tobacco dealers", appearing in section 193 of the National Internal
Revenue Code, which are defined in section 194 thereof as follows:
"SEC. 194. Words and phrases defined.-In applying the provisions
of the preceding section, words anf phrases shall be taken in the sense and
extension indicated below:
xxx xxx xxx
"(i) 'Retail liquor dealer' includes every person, except a retail vino
dealer, who for himself or on commission sells or offers for sale wine or
distilled speirits (other than denatured alcohol) in quantities of five liters
or less at any one time and not for resale.
"(k) 'Retail dealer in fermented liquors' includes every person,
except retail dealers in tuba, basi, and tapuy, who for himself or on
commission sells or offers for sale fermented liquors and quantities of five
liters or less at any one time and not for resale.
 "(o) 'Tobacco dealer' comprehends every person who for himself
or on commission sellsa or offers for sale cigars, cigarettes, or
manufactured tobacco."
Undoubtedly, these definitions must be given all the weight due thereto,
in the interpretation of section 193 of the Tax Code. As used therein, the
phrases above referred to are, however, part and parcel of the provisions
contained, not only in said section 193, but, also, in section 178 and other parts
of the Tax Code, all of which must be given effect in their entirely as a
harmonious, coordinated and integrated unit, not as a mass of hetegeneous and
unrelated if not incongruous terms, clauses and sectences. In other words, the
phrases in question should be construed in the light of the context of the whole
Tax Code, of which they are integral parts. And when this is done — when we
consider that section 193 requires "retail liquor dealers", "retail dealers in
fermented liquor" and "retail tobacco dealers" to pay the taxes on business"
therein specified; that said section 193 is entitled "Amount of tax on business";
that said section 193 merely implements the general provision in section 178,
to the effect that "a privilege tax must be paid before any business or
occupation hereinafter specified can be lawfully beguan and pursued"; that the
term "business" is used in said section 178 six (6) times; and that the
aforementioned sections 178, 193 and 194 are part of Title V of the Tax Code,
entitled "Privilege taxes on business and occupation" — it becomes crystal
clear that the "retail liquor dealer", "retail dealers in fermented liquors" and
"retail tobacco dealers" alluded to in said section 193 are those engaged in
"business", not fraternal, civic, non-stock, non-profit organizations, like herein
respondent, which sells wines, distilled spirits, fermented liquors and tobacco,
exclusively to its members and their guests, at such prices as are merely
sufficient to cover operational expenses.
Petitioner assails the applicability of the decisions relied upon by the
Court of Tax Appeals, upon the ground that said decisions refer to the authority
to license, and, hence, to the exercise of the police power, not that of taxation
which is involved in the case at bar. However, the distinction made enhances
— instead of detracting from — the weight of said decisions as precedents,
insofar as the issue herein is concerned. Indeed, the police power is, in general
broader and subject to less restrictions than the power to tax. It is not difficult
to conceive the advisability, if not, necessity, of requiring a license for some
activities undertaken by so-called "clubs", owing to the possibility, if not
probability, of use of said name, appellation or denomination, in order to avoid
or evade some laws or to camouflage certain ventures, pursuits or enterprises
which otherwise would clearly be illegal, immoral or contrary to public policy.
Upon the other hand, a tax is a burden and, as such, it will not be deemed
imposed upon fraternal, civic, non-profit, non-stock organizations, unless the
intent to the contrary is manifest and patent.
Wherefore, the appealed decision of the Court of Tax Appeals is hereby
affirmed, without special pronouncement as to costs. It is so order.
Paras, C.J., Bengzon, Padilla, Montemayor, Bautista Angelo, Endencia
and Barrera, JJ., concur.
(Collector of Internal Revenue v. Manila Lodge No. 761 of the Benevolent &
|||

Protective Order of Elks, G.R. No. L-11176, [June 29, 1959], 105 PHIL 983-992)
 [G.R. No. L-28742. April 30, 1982.]

VIRGILIO CAPATI, plaintiff-appellant, vs. DR. JESUS P.

OCAMPO, defendant-appellee.

Filemon Catajor for plaintiff-appellant.

Jose R. Garcia for defendant-appellee.

SYNOPSIS

Appellant, a resident of Pampanga and a contractor, entered into a sub-

contract with appellee for the construction of vault walls, exterior walls and
columns of the Feati Bank building in Iriga, Camarines Sur. The parties agreed
that the same should be completed on or before June 5, 1967. The subcontract
also contained a stipulation that all actions arising out or relating to the contract
"may" be instituted in the Court of First Instance of Naga City. Since appellee
finished the construction only in June 20, 1967, appellant filed an action against
the former for recovery of consequential damages for the delay with the Court
of First Instance of Pampanga. Appellee filed a motion to dismiss on the ground
of improper venue contending that the case can only be filed in Naga City as
stipulated in their agreement. Appellant opposed the motion claiming that their
agreement to hold the venue in Naga City was merely optional. Upholding the
appellee, the lower court dismissed the complaint. Hence, this appeal.
The Supreme Court held that the stipulation of the parties as to venue is
only permissive for they did not agree to file their suits solely and exclusively
with the Court of First Instance of Naga, and that since the action was filed in
the court where the plaintiff resides, the venue was properly laid.
Order appealed from set aside.

SYLLABUS

1. REMEDIAL LAW; CIVIL PROCEDURE; VENUE OF PERSONAL

ACTIONS; RULE THEREON. — The rule on venue of personal actions
cognizable by the courts of first instance is found in Section 2(b), Rule 4 of the
Rules of Court, which provides that such "actions may be commenced and tried
where the defendant or any of the defendants resides or may be found, or where
the plaintiff or any of the plaintiffs resides, at the election of the plaintiff." The
said section is qualified by the following provisions of Section 3 of the same
rule: "By agreement of the parties the venue of an action may be changed or
transferred from one province to another."
2. ID.; ID.; ID.; ID.; STIPULATION REGARDING THERE TO
PERMISSIVE WHERE PARTIES DO NOT EXCLUDE ALL OTHER
COURTS; CASE AT BAR. — The stipulation as to venue in the contract
between the parties providing that "all actions arising out of this contract may be
instituted in the Court of First Instance of Naga City, "is simply permissive. By
the said stipulation, the parties did not agree to file their suits solely and
exclusively with the Court of First Instance of Naga. They merely agreed to
submit their disputes to the said court, without waiving their right to seek
 recourse in the court specifically indicated in Section 2(b), Rule 4 of the Rules
of Court.
3. STATUTORY CONSTRUCTION; WORD "MAY" IS MERELY
PERMISSIVE. — It is well settled that the word "may" is merely permissive
and operates to confer discretion upon a party. Under ordinary circumstances,
the term "may be" connotes possibility; it does not connote certainty. "May" is
an auxillary verb indicating liberty, opportunity, permission or possibility.
4. REMEDIAL LAW; CIVIL PROCEDURE; VENUE OF PERSONAL
ACTIONS; PROPERLY LAID IN CASE AT BAR. — Since the complaint has
been filed in the Court of First Instance of Pampanga, where the plaintiff resides,
the venue of action is properly laid in accordance with Section 2(b), Rule 4 of
the Rules of Court.

DECISION

ESCOLIN, J : p

We set aside the order of the Court of First Instance of Pampanga in Civil
Case No. 3188 which dismissed the plaintiff's complaint on ground of improper
venue.
Plaintiff Virgilio Capati, a resident of Bacolor, Pampanga was the
contractor of the Feati Bank for the construction of its building in Iriga,
Camarines Sur. On May 23, 1967, plaintiff entered into a sub-contract with the
defendant Dr. Jesus Ocampo, a resident of Naga City, whereby the latter, in
consideration of the amount of P2,200.00, undertook to construct the vault walls,
exterior walls and columns of the said Feati building in accordance with the
specifications indicated therein. Defendant further bound himself to complete
said construction on or before June 5, 1967 and, to emphasize this time frame
for the completion of the construction job, defendant affixed his signature below
the following stipulation written in bold letters in the sub-contract: "TIME IS
ESSENTIAL, TO BE FINISHED 5 JUNE '67."
Claiming that defendant finished the construction in question only on
June 20, 1967, plaintiff filed in the Court of First Instance of Pampanga an action
for recovery of consequential damages in the sum of P85,000.00 with interest,
plus attorney's fees and costs. The complaint alleged inter alia that "due to the
long unjustified delay committed by defendant, in open violation of his express
written agreement with plaintiff, the latter has suffered great irreparable loss and
damage . . ."
Defendant filed a motion to dismiss the complaint on the ground that
venue of action was improperly laid. The motion was premised on the stipulation
printed at the back of the contract which reads:

"14. That all actions arising out, or relating to this contract may be
instituted in the Court of First Instance of the City of Naga."

Plaintiff filed an opposition to the motion, claiming that their agreement

to hold the venue in the Court of the First Instance of Naga City was merely
optional to both contracting parties. In support thereof, plaintiff cited the use of
the word "may" in relation with the institution of any action arising out of the
contract.
The lower court, in resolving the motion to dismiss, ruled that "there was
no sense in providing the aforequoted stipulation, pursuant to Sec. 3 of Rule 4
of the Revised Rules of Court, if after all, the parties are given the discretion or
option of filing the action in their respective residences," and thereby ordered
the dismissal of the complaint. cdll

Hence, this appeal.

The rule on venue of personal actions cognizable by the courts of first
instance is found in Section 2(b), Rule 4 of the Rules of Court, which provides
that such "actions may be commenced and tried where the defendant or any of
the defendants resides or may be found, or where the plaintiff or any of the
plaintiffs resides, at the election of the plaintiff." The said section is qualified by
the following provisions of Section 3 of the same rule:

"By written agreement of the parties the venue of an action may

be changed or transferred from one province to another."

Defendant stands firm on his contention that because of the

aforequoted covenant contained in par. 14 of the contract, he cannot be
sued in any court except the Court of First Instance of Naga City. We are
thus called upon to rule on the issue as to whether the stipulation of the
parties on venue is restrictive in the sense that any litigation arising from
the contract can be filed only in the court of Naga City, or merely
permissive in that the parties may submit their disputes not only in Naga
City but also in the court where the defendant or the plaintiffs resides, at
the election of the plaintiff, as provided for by Section 2(b), Rule 4 of the
Rules of Court.

It is well settled that the word "may" is merely permissive and

operates to confer discretion upon a party. Under ordinary circumstances,
the term "may be" connotes possibility; it does not connote certainty.
"May" is an auxillary verb indicating liberty, opportunity, permission or
possibility. 1

In Nicolas vs. Reparations Commission 2 , a case involving the

interpretation of a stipulation as to venue along lines similar to the present one,
it was held that the agreement of the parties which provided that "all legal actions
arising out of this contract . . . may be brought in and submitted to the jurisdiction
of the proper courts in the City of Manila," is not mandatory.
We hold that the stipulation as to venue in the contract in question is
simply permissive. By the said stipulation, the parties did not agree to file their
suits solely and exclusively with the Court of First Instance of Naga. They
merely agreed to submit their disputes to the said court, without waiving their
right to seek recourse in the court specifically indicated in Section 2(b), Rule 4
of the Rules of Court. LibLex

Since the complaint has been filed in the Court of First Instance of
Pampanga, where the plaintiff resides, the venue of action is properly laid in
accordance with Section 2(b), Rule 4 of the Rules of Court.
 WHEREFORE, the order appealed from is hereby set aside. Let the
records be returned to the court of origin for further proceedings. Costs against
defendant-appellee.
SO ORDERED.
Barredo (Chairman), Aquino, De Castro and Ericta, JJ., concur.
Concepcion Jr., and Abad Santos, JJ., are on leave.
||| (Capati v. Ocampo, G.R. No. L-28742, [April 30, 1982], 199 PHIL 230-235)

[G.R. No. L-51201. May 29, 1980.]

IN THE MATTER OF THE PETITION FOR CHANGE OF NAME

OF MARIA ESTRELLA VERONICA PRIMITIVA DUTERTE,
ESTRELLA S. ALFON, petitioner, vs. REPUBLIC OF THE
PHILIPPINES, respondent.

DECISION

ABAD SANTOS,J : p

This is a petition filed pursuant to Republic Act No. 5440 to review an

Order of the Court of First Instance of Rizal, Branch XXIII, dated December 29,
1978, which partially denied petitioner's prayer for a change of name. Only a
question of law is involved and there is no controversy over the facts which are
well-stated in the questioned Order as follows:

"This is verified petition filed on April 28, 1978 by petitioner

Maria Estrella Veronica Primitiva Duterte through her counsel, Atty.
Rosauro Alvarez, praying that her name be changed from Maria Estrella
Veronica Primitiva Duterte to Estrella S. Alfon.

"The notice setting the petition for hearing on December 14, 1978
at 8:30 o'clock in the morning was published in the Times Journal in its
issues of July 28, August 5 and 11, 1978 and a copy thereof together with
a copy of the petition was furnished the Office of the Solicitor General
(Exhibits C, C-1, C-2 and C-3).

"At the hearing of the petition on December 14, 1978, Atty.

Rosauro Alvarez appeared for the petitioner and Fiscal Donato Sor. Suyat,
Jr. represented the office of the Solicitor General. Upon motion of counsel
for the petitioner, without objection on the part of Fiscal Suyat, the Deputy
Clerk of Court was appointed commissioner to receive the evidence and
to submit the same for resolution of the Court.
 "From the testimonial and documentary evidence presented, it
appears that petitioner Maria Estrella Veronica Primitiva Duterte was
born on May 15, 1952 at the U.S.T. Hospital (Exhibit A).She was
registered at the Local Civil Registrar's Office as Maria Estrella Veronica
Primitiva Duterte. On June 15, 1952, she was baptized as Maria Estrella
Veronica Primitiva Duterte at the St. Anthony de Padua Church,
Singalong, Manila (Exhibit B).Her parents are Filomeno Duterte and
Estrella Veronica Primitiva Duterte has been taken cared of by Mr. and
Mrs. Hector Alfon. Petitioner and her uncle, Hector Alfon, have been
residing at 728 J.R. Yulo Street corner Ideal Street, Mandaluyong, Metro
Manila for twenty three (23) years. When petitioner started schooling, she
used the name Estrella S. Alfon. She attended her first grade up to fourth
year high school at Stella Maris College using the name Estrella S. Alfon
(Exhibits E, E-1, E-2 and E-3).After graduating from high school she
enrolled at the Arellano University and finished Bachelor of Science in
Nursing (Exhibit E-4).Her scholastic records from elementary to college
show that she was registered by the name of Estrella S. Alfon. Petitioner
has exercised her right of suffrage under the same name (Exhibit D).She
has not committed any felony or misdemeanor (Exhibits G, G-1, G-2, G-
3 and G-4).

"Petitioner has advanced the following reasons for filing the

petition:

1. She has been using the name Estrella Alfon since her childhood;

2. She has been enrolled in the grade school and in college using
the same name;

3. She has continuously used the name Estrella S. Alfon since her
infancy and all her friends and acquaintances know her by his name;

4. She has exercised her right of suffrage under the same name.

Section 5, Rule 103 of the Rules of Court provides:

'Upon satisfactory proof in open court on the date fixed in the

order that such order has been published as directed and that the
allegations of the petition are true, the court shall, if proper and reasonable
cause appears for changing the name of the petitioner adjudge that such
name be changed in accordance with the prayer of the petition.'

"The evidence submitted shows that the change of name from

Maria Estrella Veronica Primitiva Duterte to Estrella Alfon is not proper
and reasonable with respect to the surname. The fact that petitioner has
been using a different surname and has become known with such surname
does not constitute proper and reasonable cause to legally authorize and
change her surname to Alfon. The birth certificate clearly shows that the
father of petitioner is Filomeno Duterte. Petitioner likewise admitted this
fact in her testimony. To allow petitioner to change her surname from
Duterte to Alfon is equivalent to allowing her to use her mother's surname.
Article 364 of the Civil Code provides:

'Legitimate and legitimated children shall principally use the

surname of the father.'
 "If another purpose of the petitioner is to carry the surname of
Alfon because her uncle who reared her since childhood has the surname
"Alfon" then the remedy is not a petition for change of name.

"WHEREFORE, the petition insofar as the first name is granted

but denied with respect to the surname. Petitioner is authorized to change
her name from Maria Estrella Veronica Primitiva Duterte to Estrella
Alfon Duterte.

"Let copy of this order be furnished the Local Civil Registrar of

Pasig, Metro Manila pursuant to Section 3, Rule 103 of the Rules of
Court."

The lower court should have fully granted the petition.

The only reason why the lower court denied the petitioner's prayer to
change her surname is that as legitimate child of Filomeno Duterte and Estrella
Alfon she should principally use the surname of her father invoking Art. 364 of
the Civil Code.But the word "principally" as used in the codal-provision is not
equivalent to "exclusively" so that there is no legal obstacle if a legitimate or
legitimated child should choose to use the surname of its mother to which it is
equally entitled. Moreover, this Court in Haw Liong vs. Republic, G.R. No. L-
21194, April 29, 1966, 16 SCRA 677, 679, said:

"The following may be considered, among others, as proper or

reasonable causes that may warrant the grant of a petitioner for change of
name; (1) when the name is ridiculous, tainted with dishonor, or is
extremely difficult to write or pronounce; (2) when the request for change
is a consequence of a change of status, such as when a natural child is
acknowledged or legitimated; and (3) when the change is necessary to
avoid confusion (Tolentino, Civil Code of the Philippines, 1953 ed., Vol.
1, p. 660)."

In the case at bar, it has been shown that petitioner has, since childhood,
borne the name Estrella S. Alfon although her birth records and baptismal
certificate show otherwise; she was enrolled in the schools from the grades up
to college under the name Estrella S. Alfon; all her friends call her by this
name; she finished her course in Nursing in college and was graduated and
given a diploma under this name; and she exercised the right of suffrage
likewise under this name. There is therefore ample justification to grant fully
her petition which is not whimsical but on the contrary is based on a solid and
reasonable ground, i.e. to avoid confusion. cdll

WHEREFORE, the Order appealed from is hereby modified in that the

petitioner is allowed to change not only her first name but also her surname so
as to be known as ESTRELLA S. ALFON. No costs.
SO ORDERED.
Barredo (Chairman),Aquino, Concepcion, Jr. and De Castro, JJ., concur.
||| (Alfon v. Republic, G.R. No. L-51201, [May 29, 1980], 186 PHIL 600-604)
 [G.R. No. 87416. April 8, 1991.]

CECILIO S. DE VILLA, petitioner, vs. THE HONORABLE

COURT OF APPEALS, PEOPLE OF THE PHILIPPINES,
HONORABLE JOB B. MADAYAG, and ROBERTO Z.
LORAYES, respondents.

San Jose, Enriquez, Lacas, Santos & Borje for petitioner.

Eduardo R. Robles for private respondent.

SYLLABUS

1. REMEDIAL LAW; JURISDICTION; DEFINED. — Jurisdiction is the power

with which courts are invested for administering justice, that is, for hearing and
deciding cases (Velunta v. Philippine Constabulary, 157 SCRA 147 [1988]).

2. ID.; ID.; CLASSIFICATION. — Jurisdiction in general, is either over the

nature of the action, over the subject matter, over the person of the defendant, or
over the issues framed in the pleadings (Balais v. Balais, 159 SCRA 37 [1988]).

3. ID.; ID.; JURISDICTION OVER THE SUBJECT MATTER, HOW

DETERMINED. — Jurisdiction over the subject matter is determined by the
statute in force at the time of commencement of the action (De la Cruz v. Moya,
160 SCRA 538 [1988]).

4. ID.; ID.; DETERMINED BY THE ALLEGATIONS IN THE INFORMATION.

— Jurisdiction or venue is determined by the allegations in the information." (Lim
v. Rodrigo; 167 SCRA 487 [1988]).

5. ID.; ID.; ID.; CASE AT BAR. — The information under consideration

specifically alleged that the offense was committed in Makati, Metro Manila and
therefore, the same is controlling and sufficient to vest jurisdiction upon the
Regional Trial Court of Makati. The Court acquires jurisdiction over the case and
over the person of the accused upon the filing of a complaint or information in
court which initiates a criminal action (Republic v. Sunga, 162 SCRA 191 [1988]).

6. ID.; PLACE OF ISSUANCE OF CHECK, VENUE OF VIOLATION OF

BOUNCING CHECK LAW. — The determinative factor in determining venue is
the place of the issuance of the check. (People v. Grospe, 157 SCRA 154 [1988])

7. ID.; ID.; BATAS PAMBANSA BLG. 22; VENUE DETERMINED BY PLACE

OF DELIVERY. — On the matter of venue for violation of Batas Pambansa
Bilang 22, the Ministry of Justice, citing the case of People v. Yabut (76 SCRA
624 [1977], laid down the following guidelines in Memorandum Circular No. 4
dated December 15, 1981 that "(1) Venue of the offense lies at the place where the
check was executed and delivered; (2) the place where the check was written,
signed or dated does not necessarily fix the place where it was executed, as what is
of decisive importance is the delivery thereof which is the final act essential to its
consummation as an obligation; . . . (Res. No. 377, s. 1980, Filtex Mfg. Corp. vs.
Manuel Chua, October 28, 1980)." (See The Law on Bouncing Checks Analyzed
by Judge Jesus F. Guerrero, Philippine Law Gazette, Vol. 7. Nos. 11 & 12,
October-December, 1983, p. 14).

8. STATUTORY CONSTRUCTION AND INTERPRETATION; WHERE THE

LAW DOES NOT DISTINGUISH, WE SHOULD NOT DISTINGUISH. — It
will be noted that the law does not distinguish the currency involved in the case.
As the trial court correctly ruled in its order dated July 5, 1988: "Under the
Bouncing Checks Law (B.P. Blg. 22), foreign checks, provided they are either
drawn and issued in the Philippines though payable outside thereof . . . are within
the coverage of said law." It is a cardinal principle in statutory construction that
where the law does not distinguish courts should not distinguish.

9. ID.; WHERE THE LAW DOES NOT MAKE ANY EXCEPTION, COURTS
MAY NOT EXCEPT. — Where the law does not make any exception, courts may
not except something unless compelling reasons exist to justify it (Phil. British
Assurance Co., Inc. v. IAC, 150 SCRA 520 [1987]).

10. ID.; COURTS MAY AVAIL OF LEGISLATIVE PROCEEDINGS IN THE

CONSTRUCTION OF STATUTES OF DOUBTFUL MEANING. — Courts may
avail themselves of the actual proceedings of the legislative body to assist in
determining the construction of a statute of doubtful meaning (Palanca v. City of
Manila, 41 Phil. 125 [1920]). Thus, where there is doubt as to what a provision of
a statute means, the meaning put to the provision during the legislative
deliberation or discussion on the bill may be adopted (Arenas v. City of San
Carlos, 82 SCRA 318 [1978]).

DECISION

PARAS, J : p

This petition for review on certiorari seeks to reverse and set aside the decision *
of the Court of Appeals promulgated on February 1, 1989 in CA-G.R. SP No.
16071 entitled "Cecilio S. de Villa vs. Judge Job B. Madayag, etc. and Roberto Z.
Lorayes", dismissing the petition for certiorari filed therein.

The factual backdrop of this case, as found by the Court of Appeals, is as follows:

"On October 5, 1987, petitioner Cecilio S. de Villa was charged before

the Regional Trial Court of the National Capital Judicial Region
(Makati, Branch 145) with violation of Batas Pambansa Bilang 22,
allegedly committed as follows:

'That on or about the 3rd day of April 1987, in the

municipality of Makati, Metro Manila, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused,
did, then and there willfully, unlawfully and feloniously make or
draw and issue to ROBERTO Z. LORAYEZ, to apply on
account or for value a Depositors Trust Company Check No.
3371 antedated March 31, 1987, payable to herein complainant
in the total amount of U.S. $2,500.00 equivalent to P50,000.00,
 said accused well knowing that at the time of issue he had no
sufficient funds in or credit with drawee bank for payment of
such check in full upon its presentment which check when
presented to the drawee bank within ninety (90) days from the
date thereof was subsequently dishonored for the reason
'INSUFFICIENT FUNDS' and despite receipt of notice of such
dishonor said accused failed to pay said ROBERTO Z.
LORAYEZ the amount of P50,000.00 of said check or to make
arrangement for full payment of the same within five (5) banking
days after receiving said notice.'

"After arraignment and after private respondent had testified on direct

examination, petitioner moved to dismiss the Information on the
following grounds: (a) Respondent court has no jurisdiction over the
offense charged; and b) That no offense was committed since the check
involved was payable in dollars, hence, the obligation created is null and
void pursuant to Republic Act No. 529 (An Act to Assure Uniform
Value of Philippine Coin and Currency).

"On July 19, 1988, respondent court issued its first questioned orders
stating:

'Accused's motion to dismiss dated July 5, 1988, is denied

for lack of merit.

'Under the Bouncing Checks Law (B.P. Blg. 22), foreign

checks, provided they are either drawn and issued in the
Philippines though payable outside thereof, or made payable and
dishonored in the Philippines though drawn and issued outside
thereof, are within the coverage of said law. The law likewise
applied to checks drawn against current accounts in foreign
currency.'

"Petitioner moved for reconsideration but his motion was subsequently

denied by respondent court in its order dated September 6, 1988, and
which reads:

'Accused's motion for reconsideration, dated August 9,

1988, which was opposed by the prosecution, is denied for lack
of merit.

'The Bouncing Checks Law is applicable to checks drawn

against current accounts in foreign currency (Proceedings of the
Batasang Pambansa, February 7, 1979, p. 1376, cited in Makati
RTC Judge (now Manila City Fiscal) Jesus F. Guerrero's The
Ramifications of the Law on Bouncing Checks, p. 5).'" (Rollo,
Annex "A", Decision, pp. 20-22)

A petition for certiorari seeking to declare the nullity of the aforequoted orders
dated July 19, 1988 and September 6, 1988 was filed by the petitioner in the Court
of Appeals wherein he contended:

"(a) That since the questioned check was drawn against the dollar
account of petitioner with a foreign bank, respondent court has no
jurisdiction over the same or with accounts outside the territorial
 jurisdiction of the Philippines and that Batas Pambansa Bilang 22 could
have not contemplated extending its coverage over dollar accounts;

"(b) That assuming that the subject check was issued in connection with
a private transaction between petitioner and private respondent, the
payment could not be legally paid in dollars as it would violate Republic
Act No. 529; and

"(c) That the obligation arising from the issuance of the questioned
check is null and void and is not enforceable within the Philippines
either in a civil or criminal suit. Upon such premises, petitioner
concludes that the dishonor of the questioned check cannot be said to
have violated the provisions of Batas Pambansa Bilang 22." (Rollo,
Annex "A", Decision, p. 22).

On February 1, 1989, the Court of Appeals rendered a decision, the decretal

portion of which reads:

"WHEREFORE, the petition is hereby dismissed. Costs against

petitioner.

"SO ORDERED." (Rollo, Annex "A", Decision, p. 5).

A motion for reconsideration of the said decision was filed by the petitioner on
February 7, 1989 (Rollo, Petition, p. 6) but the same was denied by the Court of
Appeals in its resolution dated March 3, 1989 (Rollo, Annex "B", p. 26).

Hence, this petition.

In its resolution dated November 13, 1989, the Second Division of this Court gave
due course to the petition and required the parties to submit simultaneously their
respective memoranda (Rollo, Resolution, p. 81).

The sole issue in this case is whether or not the Regional Trial Court of Makati has
jurisdiction over the case in question.

The petition is without merit.

Jurisdiction is the power with which courts are invested for administering justice,
that is, for hearing and deciding cases (Velunta v. Philippine Constabulary, 157
SCRA 147 [1988]).

Jurisdiction in general, is either over the nature of the action, over the subject
matter, over the person of the defendant, or over the issues framed in the pleadings
(Balais v. Balais, 159 SCRA 37 [1988]).

Jurisdiction over the subject matter is determined by the statute in force at the time
of commencement of the action (De la Cruz v. Moya, 160 SCRA 538 [1988]).

The trial court's jurisdiction over the case, subject of this review, can not be
questioned.
Sections 10 and 15(a), Rule 110 of the Rules of Court specifically provide that:

"Sec. 10. Place of the commission of the offense. The complaint or

information is sufficient if it can be understood therefrom that the
offense was committed or some of the essential ingredients thereof
occurred at some place within the jurisdiction of the court, unless the
particular place wherein it was committed constitutes an essential
element of the offense or is necessary for identifying the offense
charged.

"Sec. 15. Place where action is to be instituted. (a) Subject to existing

laws, in all criminal prosecutions the action shall be instituted and tried
in the court of the municipality or territory where the offense was
committed or any of the essential ingredients thereof took place."

In the case of People v. Hon. Manzanilla (156 SCRA 279 [1987] cited in the case
of Lim v. Rodrigo, 167 SCRA 487 [1988]), the Supreme Court ruled "that
jurisdiction or venue is determined by the allegations in the information."

The information under consideration specifically alleged that the offense was
committed in Makati, Metro Manila and therefore, the same is controlling and
sufficient to vest jurisdiction upon the Regional Trial Court of Makati. The Court
acquires jurisdiction over the case and over the person of the accused upon the
filing of a complaint or information in court which initiates a criminal action
(Republic v. Sunga, 162 SCRA 191 [1988]).

Moreover, it has been held in the case of Que v. People of the Philippines (154
SCRA 160 [1987] cited in the case of People v. Grospe, 157 SCRA 154 [1988])
that 'the determinative factor (in determining venue) is the place of the issuance of
the check."

On the matter of venue for violation of Batas Pambansa Bilang 22, the Ministry of
Justice, citing the case of People v. Yabut (76 SCRA 624 [1977], laid down the
following guidelines in Memorandum Circular No. 4 dated December 15, 1981,
the pertinent portion of which reads:

"(1) Venue of the offense lies at the place where the check was executed
and delivered; (2) the place where the check was written, signed or dated
does not necessarily fix the place where it was executed, as what is of
decisive importance is the delivery thereof which is the final act
essential to its consummation as an obligation; . . . (Res. No. 377, s.
1980, Filtex Mfg. Corp. vs. Manuel Chua, October 28, 1980)." (See The
Law on Bouncing Checks Analyzed by Judge Jesus F. Guerrero,
Philippine Law Gazette, Vol. 7. Nos. 11 & 12, October-December, 1983,
p. 14).

It is undisputed that the check in question was executed and delivered by the
petitioner to herein private respondent at Makati, Metro Manila.

However, petitioner argues that the check in question was drawn against the dollar
account of petitioner with a foreign bank, and is therefore, not covered by the
Bouncing Checks Law (B.P. Blg. 22).
But it will be noted that the law does not distinguish the currency involved in the
case. As the trial court correctly ruled in its order dated July 5, 1988:

"Under the Bouncing Checks Law (B.P. Blg. 22), foreign checks,
provided they are either drawn and issued in the Philippines though
payable outside thereof . . . are within the coverage of said law."

It is a cardinal principle in statutory construction that where the law does not
distinguish courts should not distinguish. Parenthetically, the rule is that where the
law does not make any exception, courts may not except something unless
compelling reasons exist to justify it (Phil. British Assurance Co., Inc. v. IAC, 150
SCRA 520 [1987]).

More importantly, it is well established that courts may avail themselves of the
actual proceedings of the legislative body to assist in determining the construction
of a statute of doubtful meaning (Palanca v. City of Manila, 41 Phil. 125 [1920]).
Thus, where there is doubt as to what a provision of a statute means, the meaning
put to the provision during the legislative deliberation or discussion on the bill
may be adopted (Arenas v. City of San Carlos, 82 SCRA 318 [1978]).

The records of the Batasan, Vol. III, unmistakably show that the intention of the
lawmakers is to apply the law to whatever currency may be the subject thereof.
The discussion on the floor of the then Batasang Pambansa fully sustains this
view, as follows:

xxx xxx xxx

"THE SPEAKER. The Gentleman from Basilan is recognized.

"MR. TUPAY. Parliamentary inquiry. Mr. Speaker.

"THE SPEAKER. The Gentleman may proceed.

"MR. TUPAY. Mr. Speaker, it has been mentioned by one of the

Gentlemen who interpellated that any check may be involved, like U.S.
dollar checks, etc. We are talking about checks in our country. There are
U.S. dollar checks, checks in our currency, and many others.

"THE SPEAKER. The Sponsor may answer that inquiry.

"MR. MENDOZA. The bill refers to any check, Mr. Speaker, and this
check may be a check in whatever currency. This would not even be
limited to U.S. dollar checks. The check may be in French francs or
Japanese yen or deutschunorhs. (sic.) If drawn, then this bill will apply.

"MR. TUPAY. So, it include U.S. dollar checks.

"MR. MENDOZA. Yes, Mr. Speaker."

xxx xxx xxx

(p. 1376, Records of the Batasan, Volume III; Emphasis supplied, for
emphasis).
PREMISES CONSIDERED, the petition is DISMISSED for lack of merit.

SO ORDERED.

Melencio-Herrera, Padilla, Sarmiento and Regalado, JJ., concur.

||| (De Villa v. Court of Appeals, G.R. No. 87416, [April 8, 1991], 273 PHIL 89-97)

[G.R. No. L-14787. January 28, 1961.]

COLGATE-PALMOLIVE PHILIPPINES, INC., petitioner, vs.

HON. PEDRO M. GIMENEZ as AUDITOR GENERAL and
ISMAEL MATHAY as AUDITOR OF THE CENTRAL
BANK OF THE PHILIPPINES, respondents.

Ross, Selph & Carrascoso for petitioner.

Solicitor General for respondents.

SYLLABUS

1. STATUTORY CONSTRUCTION; RULE THAT GENERAL

TERMS MAY BE RESTRICTED BY SPECIFIC WORDS; TO WHAT CASES
APPLICABLE. — The principle that "general terms may be restricted by
specific words, with the result that the general language will be limited by the
specific language, which indicates the statute's object and purpose" is applicable
only to cases where, except for one general term, all the items in an enumeration
belong to or fall under one specific class.
2. ID.; RULE THAT GENERAL TERMS ARE LIMITED BY
PARTICULAR RECITALS; INTENTION OF THE RULE. — The rule of
construction that general and unlimited terms are restrained and limited by
particular recitals, when used in connection with them, does not require the
rejection of general terms entirely. It is intended merely as an aid in ascertaining
the intention of the legislature and is to be taken in connection with other rules
of construction.

DECISION

GUTIERREZ DAVID, J : p

The petitioner Colgate-Palmolive Philippines, Inc., is a corporation duly

organized and existing under Philippine laws engaged in the manufacture of
toilet preparations and household remedies. On several occasions, it imported
from abroad various materials such as irish moss extract, sodium benzoate,
sodium saccharinate, precipitated calcium carbonate and dicalcium phosphate,
for use as stabilizers and flavoring of the dental cream it manufactures. For every
importation made of these materials, the petitioner paid to the Central Bank of
the Philippines the 17% special excise tax on the foreign exchange used for the
payment of the cost, transportation and other charges incident thereto, pursuant
to Republic Act No. 601, as amended, commonly known as the Exchange Tax
Law.
On March 14, 1956, the petitioner filed with the Central Bank three
applications for refund of the 17% special excise tax it had paid in the aggregate
sum of P113,343.99. The claim for refund was based on section 2 of Republic
Act 601, which provides that "foreign exchange used for the payment of the cost,
transportation and/or other charges incident to the importation into the
Philippines of . . . stabilizer and flavors . . . shall be refunded to any importer
making application therefor, upon satisfactory proof of actual importation under
the rules and regulations to be promulgated pursuant to section seven thereof."
After the applications were processed by the Officer in-Charge of the Exchange
Tax Administration of the Central Bank, that official advised the petitioner that
of the total sum of P113,343.99 claimed by it for refund, the amount of
P23,958.13 representing the 17% special excise tax on the foreign exchange used
to import irish moss extract, sodium benzoate and precipitated calcium carbonate
had been approved. The auditor of the Central Bank, however, refused to pass
in audit its claims for refund even for the reduced amount fixed by the Officer-
in-Charge of the Exchange Tax Administration, on the theory that toothpaste
stabilizers and flavors are not exempt under section 2 of the Exchange Tax Law.
Petitioner appealed to the Auditor General, but the latter on December 4,
1958 affirmed the ruling of the auditor of the Central Bank, maintaining that the
term "stabilizer and flavors" mentioned in section 2 of the Exchange Tax Law
refers only to those used in the preparation or manufacture of food or food
products. Not satisfied, the petitioner brought the case to this Court thru the
present petition for review.
The decisive issue to be resolved is whether or not the foreign exchange
used by petitioner for the importation of dental cream stabilizers and flavors is
exempt from the 17% special excise tax imposed by the Exchange Tax Law
(Republic Act No. 601) so as to entitle it to refund under section 2 thereof, which
reads as follows:

"SEC. 2. The tax collected under the preceding section on

foreign exchange used for the payment of the cost, transportation and/or
other charges incident to importation into the Philippines of rice, flour,
canned milk, cattle and beef, canned fish, soya beans, butter, fat,
chocolate, malt syrup, tapioca, stabilizer and flavors, vitamin
concentrate, fertilizer poultry feed; textbooks, reference books, and
supplementary readers approved by the Board of Textbooks and/or
established public or private educational institutions; newsprint imported
by or for publishers for use in the publication of books, pamphlets,
magazines and newspapers; book paper, book cloth, chip board imported
for the printing of supplementary readers (approved by the Board of
Textbooks) to be supplied to the Government under contracts perfected
before the approval of this Act, the quantity thereof to be certified by the
Director of Printing; anesthetics, antibiotics, vitamins, hormones, X-Ray
films, laboratory reagents, biologicals, dental supplies, and
pharmaceutical drugs necessary for compounding medicines; medical
 and hospital supplies listed in the appendix to this Act, in quantities to
be certified by the Director of Hospitals as actually needed by the
hospitals applying therefor; drugs and medicines listed in the said
appendix; and such other drugs and medicine as may be certified by the
Secretary of Health from time to time to promote and protect the health
of the people of the Philippines shall be refunded to any importer
making application therefor, upon satisfactory proof of actual
importation under the rules and regulations to be promulgated pursuant
to section seven thereof ." (Emphasis supplied.)

The ruling of the Auditor General that the term "stabilizer and flavors" as
used in the law refers only to those materials actually used in the preparation or
manufacture of food and food products is based, apparently, on the principle of
statutory construction that "general terms may be restricted by specific words,
with the result that the general language will be limited by the specific language
which indicates the statute's object and purpose." (Statutory Construction by
Crawford, 1940 ed. p. 324-325.) The rule, however, is, in our opinion, applicable
only to cases where, except for one general term, all the items in an enumeration
belong to or fall under one specific class. In the case at bar, it is true that the term
"stabilizer and flavors" is preceded by a number of articles that may be classified
as food or food products, but it is likewise true that the other items immediately
following it do not belong to the same classification. Thus "fertilizer" and
"poultry feed" do not fall under the category of food or food products because
they are used in the farming and poultry industries, respectively. "Vitamin
concentrate" appears to be more of a medicine than food or food product, for, as
a matter of fact, vitamins are among those enumerated in the list of medicines
and drugs appearing in the appendix to the law. It should also here be stated that
"cattle", which is among those listed preceding the term in question, includes not
only those intended for slaughter but also those for breeding purposes. Again, it
is noteworthy that under Republic Act 814 amending the above-quoted section
of Republic Act No. 601, "industrial starch", which does not always refer to food
for human consumption, was added among the items grouped with stabilizer and
flavors". Thus, on the basis of the grouping of the articles alone, it cannot validly
be maintained that the term "stabilizer and flavors" as used in the above-quoted
provision of the Exchange Tax Law refers only to those used in the manufacture
of food and food products. This view is supported by the principle "Ubi lex non
distinguit nec nos distinguire debemos", or "where the law does not distinguish,
neither do we distinguish". (Ligget & Myers Tobacco Company vs. Collector of
Internal Revenue, 53 Off. Gaz. [15], page 4831). Since the law does not
distinguish between "stabilizer and flavors" used in the preparation of food and
those used in the manufacture of toothpaste or dental cream, we are not
authorized to make any distinction and must construe the words in their general
sense. The rule of construction that general and unlimited terms are restrained
and limited by particular recitals when used in connection with them, does not
require the rejection of general terms entirely. It is intended merely as an aid in
ascertaining the intention of the legislature and is to be taken in connection with
other rules of construction. (See Handbook of the Construction and
Interpretation of Laws by Black, p. 215-216, 2nd ed.)
Having arrived at the above conclusion, we deem it now idle to pass upon
the other questions raised by the parties.
 WHEREFORE, the decision under review is reversed and the
respondents are hereby ordered to audit petitioner's applications for refund
which were approved by the Officer-In-Charge of the Exchange Tax
Administration in the total amount of P23,958.13.
Bengzon, Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Paredes
and Dizon, JJ ., concur.
Labrador, J ., reserves his vote.
(Colgate-Palmolive Phils., Inc. v. Gimenez, G.R. No. L-14787, [January 28,
|||

1961], 110 PHIL 874-878)