EN BANC

G.R. No. 15574 September 17, 1919

SMITH, BELL & COMPANY (LTD.), Petitioner, vs. JOAQUIN NATIVIDAD, Collector of Customs of the port of Cebu, Respondent.

Ross and Lawrence for petitioner.

Attorney-General Paredes for respondent.

MALCOLM, J.:

A writ of mandamus is prayed for by Smith, Bell & Co. (Ltd.), against Joaquin Natividad, Collector of Customs of the port of Cebu,
Philippine Islands, to compel him to issue a certificate of Philippine registry to the petitioner for its motor vessel Bato. The Attorney-
General, acting as counsel for respondent, demurs to the petition on the general ground that it does not state facts sufficient to
constitute a cause of action. While the facts are thus admitted, and while, moreover, the pertinent provisions of law are clear and
understandable, and interpretative American jurisprudence is found in abundance, yet the issue submitted is not lightly to be resolved.
The question, flatly presented, is, whether Act. No. 2761 of the Philippine Legislature is valid - or, more directly stated, whether the
Government of the Philippine Islands, through its Legislature, can deny the registry of vessels in its coastwise trade to corporations
having alien stockholders.

FACTS.chanroblesvirtualawlibrary chanrobles virtual law library

Smith, Bell & Co., (Ltd.), is a corporation organized and existing under the laws of the Philippine Islands. A majority of its stockholders
are British subjects. It is the owner of a motor vessel known as the Bato built for it in the Philippine Islands in 1916, of more than fifteen
tons gross The Bato was brought to Cebu in the present year for the purpose of transporting plaintiff's merchandise between ports in
the Islands. Application was made at Cebu, the home port of the vessel, to the Collector of Customs for a certificate of Philippine
registry. The Collector refused to issue the certificate, giving as his reason that all the stockholders of Smith, Bell & Co., Ltd., were not
citizens either of the United States or of the Philippine Islands. The instant action is the result.

LAW.chanroblesvirtualawlibrary chanrobles virtual law library

The Act of Congress of April 29, 1908, repealing the Shipping Act of April 30, 1906 but reenacting a portion of section 3 of this Law, and
still in force, provides in its section 1:

That until Congress shall have authorized the registry as vessels of the United States of vessels owned in the Philippine Islands, the
Government of the Philippine Islands is hereby authorized to adopt, from time to time, and enforce regulations governing the
transportation of merchandise and passengers between ports or places in the Philippine Archipelago. (35 Stat. at L., 70; Section 3912,
U. S. Comp Stat. [1916]; 7 Pub. Laws, 364.)

The Act of Congress of August 29, 1916, commonly known as the Jones Law, still in force, provides in section 3, (first paragraph, first
sentence), 6, 7, 8, 10, and 31, as follows.

SEC. 3. That no law shall be enacted in said Islands which shall deprive any person of life, liberty, or property without due process of
law, or deny to any person therein the equal protection of the laws. . . .chanroblesvirtualawlibrary chanrobles virtual law library

SEC. 6. That the laws now in force in the Philippines shall continue in force and effect, except as altered, amended, or modified herein,
until altered, amended, or repealed by the legislative authority herein provided or by Act of Congress of the United
States.chanroblesvirtualawlibrary chanrobles virtual law library

SEC. 7. That the legislative authority herein provided shall have power, when not inconsistent with this Act, by due enactment to
amend, alter modify, or repeal any law, civil or criminal, continued in force by this Act as it may from time to time see fit chanrobles
virtual law library

This power shall specifically extend with the limitation herein provided as to the tariff to all laws relating to revenue provided as to the
tariff to all laws relating to revenue and taxation in effect in the Philippines.chanroblesvirtualawlibrary chanrobles virtual law library

SEC. 8. That general legislative power, except as otherwise herein provided, is hereby granted to the Philippine Legislature, authorized
by this Act.chanroblesvirtualawlibrary chanrobles virtual law library

SEC. 10. That while this Act provides that the Philippine government shall have the authority to enact a tariff law the trade relations
between the islands and the United States shall continue to be governed exclusively by laws of the Congress of the United
States: Provided, That tariff acts or acts amendatory to the tariff of the Philippine Islands shall not become law until they shall receive
the approval of the President of the United States, nor shall any act of the Philippine Legislature affecting immigration or the currency or
coinage laws of the Philippines become a law until it has been approved by the President of the United States: Provided further, That
the President shall approve or disapprove any act mentioned in the foregoing proviso within six months from and after its enactment
and submission for his approval, and if not disapproved within such time it shall become a law the same as if it had been specifically
approved.chanroblesvirtualawlibrary chanrobles virtual law library

SEC. 31. That all laws or parts of laws applicable to the Philippines not in conflict with any of the provisions of this Act are hereby
continued in force and effect." (39 Stat at L., 546.)

On February 23, 1918, the Philippine Legislature enacted Act No. 2761. The first section of this law amended section 1172 of the
Administrative Code to read as follows:

SEC. 1172. Certificate of Philippine register. - Upon registration of a vessel of domestic ownership, and of more than fifteen tons gross,
a certificate of Philippine register shall be issued for it. If the vessel is of domestic ownership and of fifteen tons gross or less, the taking
of the certificate of Philippine register shall be optional with the owner.chanroblesvirtualawlibrary chanrobles virtual law library

"Domestic ownership," as used in this section, means ownership vested in some one or more of the following classes of persons: ( a)
Citizens or native inhabitants of the Philippine Islands; ( b) citizens of the United States residing in the Philippine Islands; ( c) any
corporation or company composed wholly of citizens of the Philippine Islands or of the United States or of both, created under the laws
of the United States, or of any State thereof, or of thereof, or the managing agent or master of the vessel resides in the Philippine
Islands chanrobles virtual law library

Any vessel of more than fifteen gross tons which on February eighth, nineteen hundred and eighteen, had a certificate of Philippine
register under existing law, shall likewise be deemed a vessel of domestic ownership so long as there shall not be any change in the
ownership thereof nor any transfer of stock of the companies or corporations owning such vessel to person not included under the last
preceding paragraph.

Sections 2 and 3 of Act No. 2761 amended sections 1176 and 1202 of the Administrative Code to read as follows:

SEC. 1176. Investigation into character of vessel. - No application for a certificate of Philippine register shall be approved until the
collector of customs is satisfied from an inspection of the vessel that it is engaged or destined to be engaged in legitimate trade and that
it is of domestic ownership as such ownership is defined in section eleven hundred and seventy-two of this Code. chanrobles virtual law
library

The collector of customs may at any time inspect a vessel or examine its owner, master, crew, or passengers in order to ascertain
whether the vessel is engaged in legitimate trade and is entitled to have or retain the certificate of Philippine
register.chanroblesvirtualawlibrary chanrobles virtual law library

SEC. 1202. Limiting number of foreign officers and engineers on board vessels. - No Philippine vessel operating in the coastwise trade
or on the high seas shall be permitted to have on board more than one master or one mate and one engineer who are not citizens of
the United States or of the Philippine Islands, even if they hold licenses under section one thousand one hundred and ninety-nine
hereof. No other person who is not a citizen of the United States or of the Philippine Islands shall be an officer or a member of the crew
of such vessel. Any such vessel which fails to comply with the terms of this section shall be required to pay an additional tonnage tax of
fifty centavos per net ton per month during the continuance of said failure.

ISSUES.chanroblesvirtualawlibrary chanrobles virtual law library

Predicated on these facts and provisions of law, the issues as above stated recur, namely, whether Act No 2761 of the Philippine
Legislature is valid in whole or in part - whether the Government of the Philippine Islands, through its Legislature, can deny the registry
of vessel in its coastwise trade to corporations having alien stockholders .

OPINION.chanroblesvirtualawlibrary chanrobles virtual law library

1. Considered from a positive standpoint, there can exist no measure of doubt as to the power of the Philippine Legislature to enact Act
No. 2761. The Act of Congress of April 29, 1908, with its specific delegation of authority to the Government of the Philippine Islands to
regulate the transportation of merchandise and passengers between ports or places therein, the liberal construction given to the
provisions of the Philippine Bill, the Act of Congress of July 1, 1902, by the courts, and the grant by the Act of Congress of August 29,
1916, of general legislative power to the Philippine Legislature, are certainly superabundant authority for such a law. While the Act of
the local legislature may in a way be inconsistent with the Act of Congress regulating the coasting trade of the Continental United
States, yet the general rule that only such laws of the United States have force in the Philippines as are expressly extended thereto,
and the abnegation of power by Congress in favor of the Philippine Islands would leave no starting point for convincing argument. As a
matter of fact, counsel for petitioner does not assail legislative action from this direction ( See U. S. vs. Bull [1910], 15 Phil., 7;
Sinnot vs. Davenport [1859] 22 How., 227.) chanrobles virtual law library
2. It is from the negative, prohibitory standpoint that counsel argues against the constitutionality of Act No. 2761. The first paragraph of
the Philippine Bill of Rights of the Philippine Bill, repeated again in the first paragraph of the Philippine Bill of Rights as set forth in the
Jones Law, provides "That no law shall be enacted in said Islands which shall deprive any person of life, liberty, or property without due
process of law, or deny to any person therein the equal protection of the laws." Counsel says that Act No. 2761 denies to Smith, Bell &
Co., Ltd., the equal protection of the laws because it, in effect, prohibits the corporation from owning vessels, and because classification
of corporations based on the citizenship of one or more of their stockholders is capricious, and that Act No. 2761 deprives the
corporation of its properly without due process of law because by the passage of the law company was automatically deprived of every
beneficial attribute of ownership in the Bato and left with the naked title to a boat it could not use .chanroblesvirtualawlibrary chanrobles
virtual law library

The guaranties extended by the Congress of the United States to the Philippine Islands have been used in the same sense as like
provisions found in the United States Constitution. While the "due process of law and equal protection of the laws" clause of the
Philippine Bill of Rights is couched in slightly different words than the corresponding clause of the Fourteenth Amendment to the United
States Constitution, the first should be interpreted and given the same force and effect as the latter. (Kepner vs. U.S. [1904], 195 U. S.,
100; Sierra vs. Mortiga [1907], 204 U. S.,.470; U. S. vs. Bull [1910], 15 Phil., 7.) The meaning of the Fourteenth Amendment has been
announced in classic decisions of the United States Supreme Court. Even at the expense of restating what is so well known, these
basic principles must again be set down in order to serve as the basis of this decision.chanroblesvirtualawlibrary chanrobles virtual law
library

The guaranties of the Fourteenth Amendment and so of the first paragraph of the Philippine Bill of Rights, are universal in their
application to all person within the territorial jurisdiction, without regard to any differences of race, color, or nationality. The word
"person" includes aliens. (Yick Wo vs. Hopkins [1886], 118 U. S., 356; Truax vs. Raich [1915], 239 U. S., 33.) Private corporations,
likewise, are "persons" within the scope of the guaranties in so far as their property is concerned. (Santa Clara County vs. Southern
Pac. R. R. Co. [1886], 118.U. S., 394; Pembina Mining Co. vs. Pennsylvania [1888],.125 U. S., 181 Covington & L. Turnpike Road
Co. vs. Sandford [1896], 164 U. S., 578.) Classification with the end in view of providing diversity of treatment may be made among
corporations, but must be based upon some reasonable ground and not be a mere arbitrary selection (Gulf, Colorado & Santa Fe
Railway Co. vs. Ellis [1897],.165 U. S., 150.) Examples of laws held unconstitutional because of unlawful discrimination against aliens
could be cited. Generally, these decisions relate to statutes which had attempted arbitrarily to forbid aliens to engage in ordinary kinds
of business to earn their living. (State vs. Montgomery [1900], 94 Maine, 192, peddling - but see. Commonwealth vs. Hana [1907], 195
Mass., 262; Templar vs. Board of Examiners of Barbers [1902], 131 Mich., 254, barbers; Yick Wo vs. Hopkins [1886], 118 U. S.,.356,
discrimination against Chinese; Truax vs. Raich [1915], 239 U. S., 33; In re Parrott [1880], 1 Fed , 481; Fraser vs. McConway & Torley
Co. [1897], 82 Fed , 257; Juniata Limestone Co. vs. Fagley [1898], 187 Penn., 193, all relating to the employment of aliens by private
corporations.) chanrobles virtual law library

A literal application of general principles to the facts before us would, of course, cause the inevitable deduction that Act No. 2761 is
unconstitutional by reason of its denial to a corporation, some of whole members are foreigners, of the equal protection of the laws. Like
all beneficient propositions, deeper research discloses provisos. Examples of a denial of rights to aliens notwithstanding the provisions
of the Fourteenth Amendment could be cited. (Tragesser vs. Gray [1890], 73 Md., 250, licenses to sell spirituous liquors denied to
persons not citizens of the United States; Commonwealth vs. Hana [1907], 195 Mass , 262, excluding aliens from the right to peddle;
Patsone vs. Commonwealth of Pennsylvania [1914], 232 U. S. , 138, prohibiting the killing of any wild bird or animal by any
unnaturalized foreign-born resident; Ex parte Gilleti [1915], 70 Fla., 442, discriminating in favor of citizens with reference to the taking
for private use of the common property in fish and oysters found in the public waters of the State; Heim vs. McCall [1915], 239 U.
S.,.175, and Crane vs. New York [1915], 239 U. S., 195, limiting employment on public works by, or for, the State or a municipality to
citizens of the United States.) chanrobles virtual law library

One of the exceptions to the general rule, most persistent and far reaching in influence is, that neither the Fourteenth Amendment to
the United States Constitution, broad and comprehensive as it is, nor any other amendment, "was designed to interfere with the power
of the State, sometimes termed its `police power,' to prescribe regulations to promote the health, peace, morals, education, and good
order of the people, and legislate so as to increase the industries of the State, develop its resources and add to its wealth and
prosperity. From the very necessities of society, legislation of a special character, having these objects in view, must often be had in
certain districts." (Barbier vs. Connolly [1884], 113 U.S., 27; New Orleans Gas Co. vs. Lousiana Light Co. [1885], 115 U.S., 650.) This is
the same police power which the United States Supreme Court say "extends to so dealing with the conditions which exist in the state as
to bring out of them the greatest welfare in of its people." (Bacon vs. Walker [1907], 204 U.S., 311.) For quite similar reasons, none of
the provision of the Philippine Organic Law could could have had the effect of denying to the Government of the Philippine Islands,
acting through its Legislature, the right to exercise that most essential, insistent, and illimitable of powers, the sovereign police power, in
the promotion of the general welfare and the public interest. (U. S. vs. Toribio [1910], 15 Phil., 85; Churchill and Tait vs. Rafferty [1915],
32 Phil., 580; Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660.) Another notable exception permits of the regulation or
distribution of the public domain or the common property or resources of the people of the State, so that use may be limited to its
citizens. ( Ex parte Gilleti [1915], 70 Fla., 442; McCready vs. Virginia [1876], 94 U. S., 391; Patsone vs. Commonwealth of Pennsylvania
[1914], 232U. S., 138.) Still another exception permits of the limitation of employment in the construction of public works by, or for, the
State or a municipality to citizens of the United States or of the State. (Atkin vs. Kansas [1903],191 U. S., 207; Heim vs. McCall [1915],
239 U.S., 175; Crane vs. New York [1915], 239 U. S., 195.) Even as to classification, it is admitted that a State may classify with
reference to the evil to be prevented; the question is a practical one, dependent upon experience. (Patsone vs. Commonwealth of
Pennsylvania [1914], 232 U. S., 138.) chanrobles virtual law library

To justify that portion of Act no. 2761 which permits corporations or companies to obtain a certificate of Philippine registry only on
condition that they be composed wholly of citizens of the Philippine Islands or of the United States or both, as not infringing Philippine
Organic Law, it must be done under some one of the exceptions here mentioned This must be done, moreover, having particularly in
mind what is so often of controlling effect in this jurisdiction - our local experience and our peculiar local
conditions.chanroblesvirtualawlibrary chanrobles virtual law library

To recall a few facts in geography, within the confines of Philippine jurisdictional limits are found more than three thousand islands.
Literally, and absolutely, steamship lines are, for an Insular territory thus situated, the arteries of commerce. If one be severed, the life-
blood of the nation is lost. If on the other hand these arteries are protected, then the security of the country and the promotion of the
general welfare is sustained. Time and again, with such conditions confronting it, has the executive branch of the Government of the
Philippine Islands, always later with the sanction of the judicial branch, taken a firm stand with reference to the presence of undesirable
foreigners. The Government has thus assumed to act for the all-sufficient and primitive reason of the benefit and protection of its own
citizens and of the self-preservation and integrity of its dominion. ( In re Patterson [1902], 1 Phil., 93; Forbes vs. Chuoco, Tiaco and
Crossfield [1910], 16 Phil., 534;.228 U.S., 549; In re McCulloch Dick [1918], 38 Phil., 41.) Boats owned by foreigners, particularly by
such solid and reputable firms as the instant claimant, might indeed traverse the waters of the Philippines for ages without doing any
particular harm. Again, some evilminded foreigner might very easily take advantage of such lavish hospitality to chart Philippine waters,
to obtain valuable information for unfriendly foreign powers, to stir up insurrection, or to prejudice Filipino or American commerce.
Moreover, under the Spanish portion of Philippine law, the waters within the domestic jurisdiction are deemed part of the national
domain, open to public use. (Book II, Tit. IV, Ch. I, Civil Code; Spanish Law of Waters of August 3, 1866, arts 1, 2, 3.) Common carriers
which in the Philippines as in the United States and other countries are, as Lord Hale said, "affected with a public interest," can only be
permitted to use these public waters as a privilege and under such conditions as to the representatives of the people may seem wise.
( See De Villata vs. Stanley [1915], 32 Phil., 541.) chanrobles virtual law library

In Patsone vs. Commonwealth of Pennsylvania ([1913], 232 U.S., 138), a case herein before mentioned, Justice Holmes delivering the
opinion of the United States Supreme Court said:

This statute makes it unlawful for any unnaturalized foreign-born resident to kill any wild bird or animal except in defense of person or
property, and `to that end' makes it unlawful for such foreign-born person to own or be possessed of a shotgun or rifle; with a penalty of
$25 and a forfeiture of the gun or guns. The plaintiff in error was found guilty and was sentenced to pay the abovementioned fine. The
judgment was affirmed on successive appeals. (231 Pa., 46; 79 Atl., 928.) He brings the case to this court on the ground that the
statute is contrary to the 14th Amendment and also is in contravention of the treaty between the United States and Italy, to which latter
country the plaintiff in error belongs .chanroblesvirtualawlibrary chanrobles virtual law library

Under the 14th Amendment the objection is twofold; unjustifiably depriving the alien of property, and discrimination against such aliens
as a class. But the former really depends upon the latter, since it hardly can be disputed that if the lawful object, the protection of wild
life (Geer vs. Connecticut, 161 U.S., 519; 40 L. ed., 793; 16 Sup. Ct. Rep., 600), warrants the discrimination, the, means adopted for
making it effective also might be adopted. . . .chanroblesvirtualawlibrary chanrobles virtual law library

The discrimination undoubtedly presents a more difficult question. But we start with reference to the evil to be prevented, and that if the
class discriminated against is or reasonably might be considered to define those from whom the evil mainly is to be feared, it properly
may be picked out. A lack of abstract symmetry does not matter. The question is a practical one, dependent upon experience. . .
.chanroblesvirtualawlibrary chanrobles virtual law library

The question therefore narrows itself to whether this court can say that the legislature of Pennsylvania was not warranted in assuming
as its premise for the law that resident unnaturalized aliens were the peculiar source of the evil that it desired to prevent.
(Barrett vs. Indiana,. 229 U.S., 26, 29; 57 L. ed., 1050, 1052; 33 Sup. Ct. Rep., 692.) chanrobles virtual law library

Obviously the question, so stated, is one of local experience, on which this court ought to be very slow to declare that the state
legislature was wrong in its facts (Adams vs. Milwaukee, 228 U.S., 572, 583; 57 L. ed., 971,.977; 33 Sup. Ct. Rep., 610.) If we might
trust popular speech in some states it was right; but it is enough that this court has no such knowledge of local conditions as to be able
to say that it was manifestly wrong. . . .chanroblesvirtualawlibrary chanrobles virtual law library

Judgment affirmed.

We are inclined to the view that while Smith, Bell & Co. Ltd., a corporation having alien stockholders, is entitled to the protection
afforded by the due-process of law and equal protection of the laws clause of the Philippine Bill of Rights, nevertheless, Act No. 2761 of
the Philippine Legislature, in denying to corporations such as Smith, Bell &. Co. Ltd., the right to register vessels in the Philippines
coastwise trade, does not belong to that vicious species of class legislation which must always be condemned, but does fall within
authorized exceptions, notably, within the purview of the police power, and so does not offend against the constitutional
provision.chanroblesvirtualawlibrary chanrobles virtual law library

This opinion might well be brought to a close at this point. It occurs to us, however, that the legislative history of the United States and
the Philippine Islands, and, probably, the legislative history of other countries, if we were to take the time to search it out, might disclose
similar attempts at restriction on the right to enter the coastwise trade, and might thus furnish valuable aid by which to ascertain and, if
possible, effectuate legislative intention.
3. The power to regulate commerce, expressly delegated to the Congress by the Constitution, includes the power to nationalize ships
built and owned in the United States by registries and enrollments, and the recording of the muniments of title of American vessels. The
Congress "may encourage or it may entirely prohibit such commerce, and it may regulate in any way it may see fit between these two
extremes." (U.S. vs. Craig [1886], 28 Fed., 795; Gibbons vs. Ogden [1824], 9 Wheat., 1; The Passenger Cases [1849], 7 How., 283.)

Acting within the purview of such power, the first Congress of the United States had not been long convened before it enacted on
September 1, 1789, "An Act for Registering and Clearing Vessels, Regulating the Coasting Trade, and for other purposes." Section 1 of
this law provided that for any ship or vessel to obtain the benefits of American registry, it must belong wholly to a citizen or citizens of
the United States "and no other." (1 Stat. at L., 55.) That Act was shortly after repealed, but the same idea was carried into the Acts of
Congress of December 31, 1792 and February 18, 1793. (1 Stat. at L., 287, 305.).Section 4 of the Act of 1792 provided that in order to
obtain the registry of any vessel, an oath shall be taken and subscribed by the owner, or by one of the owners thereof, before the officer
authorized to make such registry, declaring, "that there is no subject or citizen of any foreign prince or state, directly or indirectly, by
way of trust, confidence, or otherwise, interested in such vessel, or in the profits or issues thereof." Section 32 of the Act of 1793 even
went so far as to say "that if any licensed ship or vessel shall be transferred to any person who is not at the time of such transfer a
citizen of and resident within the United States, ... every such vessel with her tackle, apparel, and furniture, and the cargo found on
board her, shall be forefeited." In case of alienation to a foreigner, Chief Justice Marshall said that all the privileges of an American
bottom were ipso facto forfeited . (U.S. vs. Willings and Francis [1807], 4 Cranch, 48.) Even as late as 1873, the Attorney-General of
the United States was of the opinion that under the provisions of the Act of December 31, 1792, no vessel in which a foreigner is
directly or indirectly interested can lawfully be registered as a vessel of the United. States. (14 Op. Atty.-Gen. [U.S.], 340.) chanrobles
virtual law library

These laws continued in force without contest, although possibly the Act of March 3, 1825, may have affected them, until amended by
the Act of May 28, 1896 (29 Stat. at L., 188) which extended the privileges of registry from vessels wholly owned by a citizen or citizens
of the United States to corporations created under the laws of any of the states thereof. The law, as amended, made possible the
deduction that a vessel belonging to a domestic corporation was entitled to registry or enrollment even though some stock of the
company be owned by aliens. The right of ownership of stock in a corporation was thereafter distinct from the right to hold the property
by the corporation (Humphreys vs. McKissock [1890], 140 U.S., 304; Queen vs. Arnaud [1846], 9 Q. B., 806; 29 Op. Atty.-Gen.
[U.S.],188.) chanrobles virtual law library

On American occupation of the Philippines, the new government found a substantive law in operation in the Islands with a civil law
history which it wisely continued in force Article fifteen of the Spanish Code of Commerce permitted any foreigner to engage in
Philippine trade if he had legal capacity to do so under the laws of his nation. When the Philippine Commission came to enact the
Customs Administrative Act (No. 355) in 1902, it returned to the old American policy of limiting the protection and flag of the United
States to vessels owned by citizens of the United States or by native inhabitants of the Philippine Islands (Sec. 117.) Two years later,
the same body reverted to the existing Congressional law by permitting certification to be issued to a citizen of the United States or to a
corporation or company created under the laws of the United States or of any state thereof or of the Philippine Islands (Act No. 1235,
sec. 3.) The two administration codes repeated the same provisions with the necessary amplification of inclusion of citizens or native
inhabitants of the Philippine Islands (Adm. Code of 1916, sec. 1345; Adm. Code of 1917, sec. 1172). And now Act No. 2761 has
returned to the restrictive idea of the original Customs Administrative Act which in turn was merely a reflection of the statutory language
of the first American Congress.chanroblesvirtualawlibrary chanrobles virtual law library

Provisions such as those in Act No. 2761, which deny to foreigners the right to a certificate of Philippine registry, are thus found not to
be as radical as a first reading would make them appear.chanroblesvirtualawlibrary chanrobles virtual law library

Without any subterfuge, the apparent purpose of the Philippine Legislature is seen to be to enact an anti-alien shipping act. The
ultimate purpose of the Legislature is to encourage Philippine ship-building. This, without doubt, has, likewise, been the intention of the
United States Congress in passing navigation or tariff laws on different occasions. The object of such a law, the United States Supreme
Court once said, was to encourage American trade, navigation, and ship-building by giving American ship-owners exclusive privileges.
(Old Dominion Steamship Co. vs. Virginia [1905], 198 U.S., 299; Kent's Commentaries, Vol. 3, p. 139.) chanrobles virtual law library

In the concurring opinion of Justice Johnson in Gibbons vs. Ogden ([1824], 9 Wheat., 1) is found the following:

Licensing acts, in fact, in legislation, are universally restraining acts; as, for example, acts licensing gaming houses, retailers of
spirituous liquors, etc. The act, in this instance, is distinctly of that character, and forms part of an extensive system, the object of which
is to encourage American shipping, and place them on an equal footing with the shipping of other nations. Almost every commercial
nation reserves to its own subjects a monopoly of its coasting trade; and a countervailing privilege in favor of American shipping is
contemplated, in the whole legislation of the United States on this subject. It is not to give the vessel an American character, that the
license is granted; that effect has been correctly attributed to the act of her enrollment. But it is to confer on her American privileges, as
contradistinguished from foreign; and to preserve the. Government from fraud by foreigners, in surreptitiously intruding themselves into
the American commercial marine, as well as frauds upon the revenue in the trade coastwise, that this whole system is projected.

The United States Congress in assuming its grave responsibility of legislating wisely for a new country did so imbued with a spirit of
Americanism. Domestic navigation and trade, it decreed, could only be carried on by citizens of the United States. If the representatives
of the American people acted in this patriotic manner to advance the national policy, and if their action was accepted without protest in
the courts, who can say that they did not enact such beneficial laws under the all-pervading police power, with the prime motive of
safeguarding the country and of promoting its prosperity? Quite similarly, the Philippine Legislature made up entirely of Filipinos,
representing the mandate of the Filipino people and the guardian of their rights, acting under practically autonomous powers, and
imbued with a strong sense of Philippinism, has desired for these Islands safety from foreign interlopers, the use of the common
property exclusively by its citizens and the citizens of the United States, and protection for the common good of the people. Who can
say, therefore, especially can a court, that with all the facts and circumstances affecting the Filipino people before it, the Philippine
Legislature has erred in the enactment of Act No. 2761? chanrobles virtual law library

Surely, the members of the judiciary are not expected to live apart from active life, in monastic seclusion amidst dusty tomes and
ancient records, but, as keen spectators of passing events and alive to the dictates of the general - the national - welfare, can incline
the scales of their decisions in favor of that solution which will most effectively promote the public policy. All the presumption is in favor
of the constitutionally of the law and without good and strong reasons, courts should not attempt to nullify the action of the Legislature.
"In construing a statute enacted by the Philippine Commission (Legislature), we deem it our duty not to give it a construction which
would be repugnant to an Act of Congress, if the language of the statute is fairly susceptible of another construction not in conflict with
the higher law." ( In re Guariña [1913], 24. Phil., 36; U.S. vs. Ten Yu [1912], 24 Phil., 1.) That is the true construction which will best
carry legislative intention into effect.chanroblesvirtualawlibrary chanrobles virtual law library

With full consciousness of the importance of the question, we nevertheless are clearly of the opinion that the limitation of domestic
ownership for purposes of obtaining a certificate of Philippine registry in the coastwise trade to citizens of the Philippine Islands, and to
citizens of the United States, does not violate the provisions of paragraph 1 of section 3 of the Act of Congress of August 29, 1916 No
treaty right relied upon Act No. 2761 of the Philippine Legislature is held valid and constitutional .chanroblesvirtualawlibrary chanrobles
virtual law library

The petition for a writ of mandamus is denied, with costs against the petitioner. So ordered.chanroblesvirtualawlibrary chanrobles virtual
law library

Arellano, C.J., Torres, Johnson, Araullo, Street, Avanceña and Moir, JJ., concur.
 12. SMITH, BELL & COMPANY (LTD.) vs NATIVIDAD

G.R. No. 15574 September 17, 1919

Facts:

Smith, Bell & Co., (Ltd.), is a corporation organized and existing under the laws of the Philippine Islands. A majority of its stockholders
are British subjects. It is the owner of a motor vessel known as the Bato built for it in the Philippine Islands in 1916, of more than fifteen
tons gross The Bato was brought to Cebu in the present year for the purpose of transporting plaintiff's merchandise between ports in the
Islands. Application was made at Cebu, the home port of the vessel, to the Collector of Customs for a certificate of Philippine registry.
The Collector refused to issue the certificate, giving as his reason that all the stockholders of Smith, Bell & Co., Ltd., were not citizens
either of the United States or of the Philippine Islands. The instant action is the result.

On February 23, 1918, the Philippine Legislature enacted Act No. 2761. The first section of this law amended section 1172 of the
Administrative Code to read as follows:

SEC. 1172. Certificate of Philippine register. — Upon registration of a vessel of domestic ownership, and of more than fifteen tons gross,
a certificate of Philippine register shall be issued for it. If the vessel is of domestic ownership and of fifteen tons gross or less, the taking
of the certificate of Philippine register shall be optional with the owner.

"Domestic ownership," as used in this section, means ownership vested in some one or more of the following classes of persons: (a)
Citizens or native inhabitants of the Philippine Islands; (b) citizens of the United States residing in the Philippine Islands; (c) any
corporation or company composed wholly of citizens of the Philippine Islands or of the United States or of both, created under
the laws of the United States, or of any State thereof, or of thereof, or the managing agent or master of the vessel resides in the Philippine
Islands

Any vessel of more than fifteen gross tons which on February eighth, nineteen hundred and eighteen, had a certificate of Philippine
register under existing law, shall likewise be deemed a vessel of domestic ownership so long as there shall not be any change in the
ownership thereof nor any transfer of stock of the companies or corporations owning such vessel to person not included under the last
preceding paragraph.

The first paragraph of the Philippine Bill of Rights of the Philippine Bill, repeated again in the first paragraph of the Philippine Bill of Rights
as set forth in the Jones Law, provides "That no law shall be enacted in said Islands which shall deprive any person of life, liberty, or
property without due process of law, or deny to any person therein the equal protection of the laws."

Counsel says that Act No. 2761 denies to Smith, Bell & Co., Ltd., the equal protection of the laws because it, in effect, prohibits the
corporation from owning vessels, and because classification of corporations based on the citizenship of one or more of their stockholders
is capricious, and that Act No. 2761 deprives the corporation of its properly without due process of law because by the passage of the
law company was automatically deprived of every beneficial attribute of ownership in the Bato and left with the naked title to a boat it
could not use .

Issue/Held: WON the Government of the Philippine Islands, through its Legislature, can deny the registry of vessel in its
coastwise trade to corporations having alien stockholders.- YES, this is a valid exercise of police power. Common carriers
which in the Philippines as in the United States and other countries are, as Lord Hale said, "affected with a public interest," can
only be permitted to use these public waters as a privilege and under such conditions as to the representatives of the people
may seem wise. Act No. 2761 of the Philippine Legislature, in denying to corporations such as Smith, Bell &. Co. Ltd., the right to register
vessels in the Philippines coastwise trade, does not belong to that vicious species of class legislation which must always be condemned,
but does fall within authorized exceptions, notably, within the purview of the police power, and so does not offend against the constitutional
provision.

Ratio: The guaranties of the Fourteenth Amendment and so of the first paragraph of the Philippine Bill of Rights, are universal in their
application to all person within the territorial jurisdiction, without regard to any differences of race, color, or nationality. The word "person"
includes aliens. Private corporations, likewise, are "persons" within the scope of the guaranties in so far as their property is
concerned. Classification with the end in view of providing diversity of treatment may be made among corporations, but must be based
upon some reasonable ground and not be a mere arbitrary selection. Examples of laws held unconstitutional because of unlawful
discrimination against aliens could be cited. Generally, these decisions relate to statutes which had attempted arbitrarily to forbid aliens
to engage in ordinary kinds of business to earn their living.

One of the exceptions to the general rule, most persistent and far reaching in influence is, that neither the Fourteenth Amendment to the
United States Constitution, broad and comprehensive as it is, nor any other amendment, "was designed to interfere with the power of the
State, sometimes termed its `police power,' to prescribe regulations to promote the health, peace, morals, education, and good order of
the people, and legislate so as to increase the industries of the State, develop its resources and add to its wealth and prosperity. From
the very necessities of society, legislation of a special character, having these objects in view, must often be had in certain districts." his
is the same police power which the United States Supreme Court say "extends to so dealing with the conditions which exist in the state
as to bring out of them the greatest welfare in of its people." For quite similar reasons, none of the provision of the Philippine Organic Law
could could have had the effect of denying to the Government of the Philippine Islands, acting through its Legislature, the right to exercise
that most essential, insistent, and illimitable of powers, the sovereign police power, in the promotion of the general welfare and the public
interest.

Another notable exception permits of the regulation or distribution of the public domain or the common property or resources of the people
of the State, so that use may be limited to its citizens. Even as to classification, it is admitted that a State may classify with reference to
the evil to be prevented; the question is a practical one, dependent upon experience.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-52304 January 28, 1980

RAMON B. CENIZA, FEDERICO C. CABILAO, JR., NELSON J. ROSAL and ALEJANDRO R. ALINSUG, petitioners,
vs.
COMMISSION ON ELECTIONS, COMMISSION ON AUDIT, and NATIONAL TREASURER, respondents.

CONCEPCION JR., J.:

Petition for prohibition and mandamus moth a prayer for a writ of preliminary injunction.

On December 22. 1979, the Interim Batasang Pambansa enacted Batas Blg. 51 providing for local elections on January 30, 1980. Section
of the statute provides:

SEC. 3. Cities. — There shall be in each city such elective local officials as provided in their respective charters,
including the city mayor, the city vice-mayor, and the elective members of the sangguniang panglungsod, all of whom
shall' be elected by the qualified voters in the city. In addition thereto, there shall be appointive sangguniang
panglungsod members consisting of the of the city association of barangay councils, the President of the city federation
of the kabataang barangay, and one representative each from the agricultural and industrial labor sectors who shall be
appointed by the President (Prime Minister) whenever, as de by the sangguniang panglungsod, said sectors are of
sufficient number in the city to warrant representation.

Until cities are reclassified into highly urbanized and component cities in accordance with the standards established in
the Local Government Code as provided for in Article XI, Section 4(1) of the Constitution. any city now existing with an
annual regular derived from infrastructure and general funds of not less than forty million pesos (P40,000,000.00) at
the time of the approval of this Act shag be classified as a highly urbanized city. All other cities shall be considered
components of the provinces where they are geographically located.

The City of Baguio, because of its special functions as the summer capital of the Philippines, shall be classified as a
highly urbanized city irrespective of its income.

The registered voters of a component city may be entitled to vote in the election of the officials of the province of which
that city is a component, if its charter so provides. However, voters registered in a highly urbanized city, as hereinabove
defined shall not participate nor vote in the election of the officials of the province in which the highly urbanized city is
geographically located.

To implement this Act, the Commission on Elections (COMELEC, for short) adopted Resolution No. 1421, which reads as follows:

WHEREAS, Batas Pambansa Blg. 51 in calling for the election of the provincial governor, provincial vice-governor and
members of the Sangguniang Panlalawigan in each province classified the chartered cities of the Philippines into "highly
urbanized" and "component" cities based on the annual regular income of each city, and provided that "the registered
voter of a component city may be entitled to vote in the election of the officials of the province of which that city is a
component, if its charter provides", but that "voters registered in a highly urbanized city, shall not participate nor vote
in the election of the officials of the province in which the highly urbanized city is geographically located";

WHEREAS, inasmuch as the charters of the different cities vary with respect to the right of their registered voters to
vote for the provincial officials of the provinces where they are located, there is need to study the various charters of
the cities and determine what cities shall and shall not vote for provincial officials pursuant to Batas Pambansa Blg.
51;

WHEREAS, the voters in the cities should be accordingly informed if they are going to vote for provincial officials or
not, for their proper guidance;

NOW, THEREFORE, the Commission on Elections, by virtue of the powers conferred upon it by the Constitution, the
1978 Election Code and Batas Pambansa Blg. 52 (51) RESOLVED, as it hereby RESOLVES, that the qualified
voters in each city shall or shall not be entitled to vote for the provincial officials of the province where they are
geographically located, to wit:
 A. Cities not entitled to participate in the election of pro- provincial officials

1
. Baguio 11. Mandaue

2. Bais 12. Manila

3. Canlaon 13. Naga

4. Caloocan 14. Ormoc

5. Cebu 15. Oroquieta

6. Cotabato 16. Ozamis

7. Dagupan 17. Pasay

8. Davao 18. Quezon

9. General Santo 19. San Carlos (Pangasinan)

10. Iloilo 20. Zamboanga

Because the City of Cebu has an income of P51,603,147,64, it is classified as a highly urbanized city and the voters thereof cannot take
part in the election of the elective provincial officials of the province of Cebu, although the Charter of Cebu City 1 allows the qualified
voters of the city to vote in the election of the provincial officials of the Province of Cebu.

The City of Mandaue, not having an annual regular income of not less than ?40 million, is classified as a component city. But the
registered voters of the city cannot vote for the provincial elective officials because its Charter 2 expressly provides that the registered
voters of the city cannot participate in the election of the provincial officials of the Province of Cebu, except to be a candidate therefor.

The petitioners filed the instant suit as taxpayers and registered voters in the Cities of Cebu and Mandaue. They are members of a civic
and non-partisan group known as D-O-E-R-S (an accronym for "DEMOCRACY OR EXTINCTION: RESOLVED TO SUCCEED) which
counts lawyers among its members, and extends free legal assistance to citizens regardless of economic and social status in
meritorious cases involving violation of civil liberties and basic human rights. They vigorously assail Section 3 of Batas Pambansa Blg.
51, which uses the annual income of a given city as the basis for classification of whether or not a particular city is a highly urbanized
city whose voters may not participate in the election of provincial officials of the province where the city is geographically located; and
Republic Act No. 5519, otherwise known as the Charter of Mandaue City, which went into effect without the benefit of ratification by the
residents of Mandaue in a plebiscite or referendum. They pray that upon filing of the instant petition, a restraining order be issued
"temporarily prohibiting the holding of election for Provincial Governor and other elective provincial officials in the province where the 18
cities listed by the respondent COMELEC are located, particularly Cebu City and Mandaue City, and temporarily prohibiting the
National Treasurer to release public funds and the COA to pass in audit said funds in connection with and for the purpose of holding
local elections in said provinces; and after hearing, to make the injunction permanent declaring unconstitutional and therefore void
Section 96, Art. XVIII of the Charter of Mandaue, otherwise known as RA 5519," and should the stopping of the provincial elections in
the provinces concerned be not possible, the respondent COMELEC be directed "to allow the qualified registered voters in the cities
listed by said respondent, particularly Cebu City and Mandaue City, to participate in the election of, and vote for, the Provincial
Governor and other elective provincial officials and preparing the corresponding official ballots for this purpose which shall provide
spaces therein for Provincial Governor and other elective provincial officials of the provinces concerned, particularly the province of
Cebu."

The petitioners contend that "Section 3 of Batas Blg. 885 3 insofar as it classifies cities including Cebu city as highly urbanized as the
only basis for not allowing its electorate to vote for the provincial officials is inherently and palpably unconstitutional in that such
classification is not based on substantial distinctions germane to the purpose of the law which in effect provides for and regulates the
exercise of the right of suffrage, and therefore such unreasonable classification amounts to a denial of equal protection."

We find no merit in the petition. The thrust of the 1973 Constitution is towards the fullest autonomy of local government units. In the
Declaration of Principles and State Policies, it is stated that "The state shall guarantee and promote the autonomy of local government
units, especially the barrio, to ensure their fullest development as self-reliant communities." 4 To this end, the Constitution directs the
National Assembly to "enact a local government code which may not thereafter be amended except by the majority vote of all its
members, defining a more responsive and accountable local government structure with an effective system of recall, allocating among
the different local governments their powers, responsibilities, and resources, and providing for the qualifications, election and removal,
term, salaries, powers, functions, and duties of local officials, and all other matters relating to the organization and operation of local
government units," 5 and empowered local government units "to create its own sources of revenue and to levy taxes, subject to
limitations as may be provided by law." 6 Art. XI, Section 4(1) of the said Constitution places highly urbanized cities outside the
supervisory power of the province where they are geographically located. This is as it should be because of the complex and varied
problems in a highly urbanized city due to a bigger population and greater economic activity which require greater autonomy.
Corollary to independence however, is the concomitant loss of the right to participate in provincial affairs, more particularly the selection
of elective provincial officials since these provincial officials have ceased to exercise any governmental jurisdiction and authority over
said city. Thus, in the case of Teves vs. Commission on Election 7 this Court, in holding that the registered voters of the City of
Dumaguete cannot vote for the provincial officials of Negros Oriental because the charter of the city does not expressly allow the voters
in the city to do so, ruled:

The creation of Dumaguete City has made it a political entity separate from and independent of the province of
Negros Oriental. The purpose of an election is to enable the electorate to choose the men that will run their
government, whether national, provincial, municipal or city. It so, no useful end will be served by allowing — in the
absence of express legislative preference — the voters of a city to ceased to have any governmental jurisdiction and
authority over said city.

To confirm our view that the city of Dumaguete has been segregated from the province of Oriental Negros for
purposes of provincial elections, we should point to the penultimate section of the charter providing that "until
otherwise provided by law, the City of Dumaguete shall continue as part of the first representative district of the
Province of Oriental Negros." This is an express exception to the general effect of separation — an exception that
serves to reiterate or even establish the rule. In other words, the Congress meant that the inhabitants of the city may
not vote for provincial officials, but may vote for their representative in Congress.

The classification of cities into highly urbanized cities and component cities on the basis of their regular annual income is based upon
substantial distinction. The revenue of a city would show whether or not it is capable of existence and development as a relatively
independent social, economic, and political unit. It would also show whether the city has sufficient economic or industrial activity as to
warrant its independence from the province where it is geographically situated. Cities with smaller income need the continued support
of the provincial government thus justifying the continued participation of the voters in the election of provincial officials in some
instances.

The petitioners also contend that the voters in Mandaue City are denied equal protection of the law since the voters in other component
cities are allowed to vote for provincial officials. The contention is without merit. The practice of allowing voters in one component city to
vote for provincial officials and denying the same privilege to voters in another component city is a matter of legislative discretion which
violates neither the Constitution nor the voter's right of suffrage. In the case of Teves v. Commission on Election 8 the Court said.

Petitioners' contention is that, as the Charter of Dumaguete City is silent as to the right of its qualified voters to
participate in the election of provincial officials of Negros Oriental and as said voters are residents of the province,
they are clearly entitled to vote for said provincial officials.

The charters of other recently formed cities are articulate on the matter. Thus, in the case of Bacolod, Cabanatuan
Legaspi Naga, and Ormoc, their charters expressly prohibit the residents therein from voting for provincial officials of
the province to which said cities formerly belonged. Upon the other hand, the charters of Cagayan de Oro, Butuan,
Cavite, Iloilo, Calbayog Lipa San Pablo, and Dagupan contain provisions extending their part in the election of the
provincial official cities were previously included.

The question that presents itself has reference to the effect of the omission in the charter of Dumaguete City of an
express provision on the right of its residents to vote for provincial officials of Negros Oriental, in the light of the
legislative practice that, when desired, the right is either recognized or withdrawn expressly. We are inclined to
overrule petitioners' position.

The equal protection of the law contemplates equality in the enjoyment of similar rights and privileges granted by law. It would have
been discriminatory and a denial of the equal protection of the law if the statute prohibited an individual or group of voters in the city
from voting for provincial officials while granting it to another individual or groups of voters in the same city.

Neither can it be considered an infringement upon the petitioners' rights of suffrage since the Constitution confers no right to a voter in a
city to vote for the provincial officials of the province where the city is located. Their right is limited to the right to vote for elective city
officials in local elections which the questioned statues neither withdraw nor restrict.

The petitioners further claim that to prohibit the voters in a city from voting for elective provincial officials would impose a substantial
requirement on the exercise of suffrage and would violate the sanctity of the ballot, contrary to the provisions of Art. VI, Section 1 of the
Constitution. The prohibition contemplated in the Constitution, however, has reference to such requirements, as the Virginia poll tax,
invalidated in Harper vs. Virginia Board of Elections, 9 or the New York requirement that to be eligible to vote in a school district, one
must be a parent of a child enrolled in a local public school, nullified in Kramer vs. Union Free School District, 395 U.S. 621, which
impose burdens on the right of suffrage without achieving permissible estate objectives. In this particular case, no such burdens are
imposed upon the voters of the cities of Cebu and Mandaue. They are free to exercise their rights without any other requirement, save
that of being registered voters in the cities where they reside and the sanctity of their ballot is maintained.

It is also contended that the prohibition would subvert the principle of republicanism as it would deprive a citizen his right to participate
in the conduct of the affairs of the government unit through the exercise of his right of suffrage. It has been pointed out, however, that
the provincial government has no governmental supervision over highly urbanized cities. These cities are independent of the province
in the administration of their affairs. Such being the case, it is but just and proper to limit the selection and election of the provincial
officials to the voters of the province whose interests are vitally affected and exclude therefrom the voters of highly urbanized cities.

Petitioners assail the charter of the City of Mandaue as unconstitutional for not having been ratified by the residents of the city in a
plebiscite. This contention is untenable. The Constitutional requirement that the creation, division, merger, abolition, or alteration of the
boundary of a province, city, municipality, or barrio should be subject to the approval by the majority of the votes cast in a plebiscite in
the governmental unit or units affected 10 is a new requirement that came into being only with the 1973 Constitution. It is
prospective 11 in character and therefore cannot affect the creation of the City of Mandaue which came into existence on June 21, 1969.

Finally, the petitioners claim that political and gerrymandering motives were behind the passage of Batas Blg. 51 and Section 96 of the
Charter of Mandaue City. They contend that the Province of Cebu is politically and historically known as an opposition bailiwick and of
the total 952,716 registered voters in the province, 234,582 are from Cebu City and 44,358 come from Mandaue City, so that 278,940
electors, or close to one-third (1/3) of the entire province of Cebu would be barred from voting for the provincial officials of the province
of Cebu. Such charge has no factual and legal basis. "Gerrymandering" is a "term employed to describe an apportionment of
representative districts so contrived as to give an unfair advantage to the party in power. 12 The questioned statutes in this particular
case do not apportion representative districts. The said representative districts remain the same. Nor has it been shown that there is an
unfair advantage in favor of the candidates of the party in power. As the Solicitor General pointed out, it may even be that the majority
of the city voters are supporters of the administration candidates, so that the enactment of the questioned statutes will work to their
disadvantage.

WHEREFORE, the petition should be, as it is hereby dismissed. Costs against the petitioners.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 81510 March 14, 1990

HORTENCIA SALAZAR, petitioner,

vs.
HON. TOMAS D. ACHACOSO, in his capacity as Administrator of the Philippine Overseas Employment
Administration, and FERDIE MARQUEZ, respondents.

Gutierrez & Alo Law Offices for petitioner.

SARMIENTO, J.:

This concerns the validity of the power of the Secretary of Labor to issue warrants of arrest and seizure under Article 38 of
the Labor Code, prohibiting illegal recruitment.

The facts are as follows:

xxx xxx xxx

1. On October 21, 1987, Rosalie Tesoro of 177 Tupaz Street, Leveriza, Pasay City, in a sworn statement filed
with the Philippine Overseas Employment Administration (POEA for brevity) charged petitioner Hortencia
Salazar, viz:

04. T: Ano ba ang dahilan at ikaw ngayon ay narito at

nagbibigay ng salaysay.

S: Upang ireklamo sa dahilan ang aking PECC Card ay

ayaw ibigay sa akin ng dati kong manager. — Horty
Salazar — 615 R.O. Santos, Mandaluyong, Mla.

05. T: Kailan at saan naganap and ginawang panloloko sa

iyo ng tao/mga taong inireklamo mo?

S. Sa bahay ni Horty Salazar.

06. T: Paano naman naganap ang pangyayari?

S. Pagkagaling ko sa Japan ipinatawag niya ako. Kinuha

ang PECC Card ko at sinabing hahanapan ako ng
booking sa Japan. Mag 9 month's na ako sa Phils. ay
hindi pa niya ako napa-alis. So lumipat ako ng ibang
company pero ayaw niyang ibigay and PECC Card
ko.

2. On November 3, 1987, public respondent Atty. Ferdinand Marquez to whom said complaint was assigned,
sent to the petitioner the following telegram:

YOU ARE HEREBY DIRECTED TO APPEAR BEFORE FERDIE MARQUEZ POEA ANTI ILLEGAL
RECRUITMENT UNIT 6TH FLR. POEA BLDG. EDSA COR. ORTIGAS AVE. MANDALUYONG MM ON
NOVEMBER 6, 1987 AT 10 AM RE CASE FILED AGAINST YOU. FAIL NOT UNDER PENALTY OF LAW.
4. On the same day, having ascertained that the petitioner had no license to operate a recruitment agency,
public respondent Administrator Tomas D. Achacoso issued his challenged CLOSURE AND SEIZURE
ORDER NO. 1205 which reads:

HORTY SALAZAR
No. 615 R.O. Santos St.
Mandaluyong, Metro Manila

Pursuant to the powers vested in me under Presidential Decree No. 1920 and Executive Order No. 1022, I
hereby order the CLOSURE of your recruitment agency being operated at No. 615 R.O. Santos St.,
Mandaluyong, Metro Manila and the seizure of the documents and paraphernalia being used or intended to be
used as the means of committing illegal recruitment, it having verified that you have —

(1) No valid license or authority from the Department of Labor and Employment to recruit and deploy workers
for overseas employment;

(2) Committed/are committing acts prohibited under Article 34 of the New Labor Code in relation to Article 38
of the same code.

This ORDER is without prejudice to your criminal prosecution under existing laws.

Done in the City of Manila, this 3th day of November, 1987.

5. On January 26, 1988 POEA Director on Licensing and Regulation Atty. Estelita B. Espiritu issued an office
order designating respondents Atty. Marquez, Atty. Jovencio Abara and Atty. Ernesto Vistro as members of a
team tasked to implement Closure and Seizure Order No. 1205. Doing so, the group assisted by Mandaluyong
policemen and mediamen Lito Castillo of the People's Journal and Ernie Baluyot of News Today proceeded to
the residence of the petitioner at 615 R.O. Santos St., Mandaluyong, Metro Manila. There it was found that
petitioner was operating Hannalie Dance Studio. Before entering the place, the team served said Closure and
Seizure order on a certain Mrs. Flora Salazar who voluntarily allowed them entry into the premises. Mrs. Flora
Salazar informed the team that Hannalie Dance Studio was accredited with Moreman Development (Phil.).
However, when required to show credentials, she was unable to produce any. Inside the studio, the team
chanced upon twelve talent performers — practicing a dance number and saw about twenty more waiting
outside, The team confiscated assorted costumes which were duly receipted for by Mrs. Asuncion Maguelan
and witnessed by Mrs. Flora Salazar.

6. On January 28, 1988, petitioner filed with POEA the following letter:

Gentlemen:

On behalf of Ms. Horty Salazar of 615 R.O. Santos, Mandaluyong, Metro Manila, we respectfully request that
the personal properties seized at her residence last January 26, 1988 be immediately returned on the ground
that said seizure was contrary to law and against the will of the owner thereof. Among our reasons are the
following:

1. Our client has not been given any prior notice or hearing, hence the Closure and Seizure Order No. 1205
dated November 3, 1987 violates "due process of law" guaranteed under Sec. 1, Art. III, of the Philippine
Constitution.

2. Your acts also violate Sec. 2, Art. III of the Philippine Constitution which guarantees right of the people "to
be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of
whatever nature and for any purpose."

3. The premises invaded by your Mr. Ferdi Marquez and five (5) others (including 2 policemen) are the private
residence of the Salazar family, and the entry, search as well as the seizure of the personal properties
belonging to our client were without her consent and were done with unreasonable force and intimidation,
together with grave abuse of the color of authority, and constitute robbery and violation of domicile under Arts.
293 and 128 of the Revised Penal Code.
 Unless said personal properties worth around TEN THOUSAND PESOS (P10,000.00) in all (and which were
already due for shipment to Japan) are returned within twenty-four (24) hours from your receipt hereof, we
shall feel free to take all legal action, civil and criminal, to protect our client's interests.

We trust that you will give due attention to these important matters.

7. On February 2, 1988, before POEA could answer the letter, petitioner filed the instant petition; on even date,
POEA filed a criminal complaint against her with the Pasig Provincial Fiscal, docketed as IS-88-836.1

On February 2, 1988, the petitioner filed this suit for prohibition. Although the acts sought to be barred are already fait
accompli, thereby making prohibition too late, we consider the petition as one for certiorari in view of the grave public
interest involved.

The Court finds that a lone issue confronts it: May the Philippine Overseas Employment Administration (or the Secretary
of Labor) validly issue warrants of search and seizure (or arrest) under Article 38 of the Labor Code? It is also an issue
squarely raised by the petitioner for the Court's resolution.

Under the new Constitution, which states:

. . . no search warrant or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the complainant and the witnesses
he may produce, and particularly describing the place to be searched and the persons or things to be
seized. 2

it is only a judge who may issue warrants of search and arrest. 3 In one case, it was declared that mayors may not
exercise this power:

xxx xxx xxx

But it must be emphasized here and now that what has just been described is the state of the law as it
was in September, 1985. The law has since been altered. No longer does the mayor have at this time the
power to conduct preliminary investigations, much less issue orders of arrest. Section 143 of the Local
Government Code, conferring this power on the mayor has been abrogated, rendered functus officio by
the 1987 Constitution which took effect on February 2, 1987, the date of its ratification by the Filipino
people. Section 2, Article III of the 1987 Constitution pertinently provides that "no search warrant or
warrant of arrest shall issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the person or things to be seized." The constitutional
proscription has thereby been manifested that thenceforth, the function of determining probable cause
and issuing, on the basis thereof, warrants of arrest or search warrants, may be validly exercised only by
judges, this being evidenced by the elimination in the present Constitution of the phrase, "such other
responsible officer as may be authorized by law" found in the counterpart provision of said 1973
Constitution, who, aside from judges, might conduct preliminary investigations and issue warrants of
arrest or search warrants. 4

Neither may it be done by a mere prosecuting body:

We agree that the Presidential Anti-Dollar Salting Task Force exercises, or was meant to exercise,
prosecutorial powers, and on that ground, it cannot be said to be a neutral and detached "judge" to
determine the existence of probable cause for purposes of arrest or search. Unlike a magistrate, a
prosecutor is naturally interested in the success of his case. Although his office "is to see that justice is
done and not necessarily to secure the conviction of the person accused," he stands, invariably, as the
accused's adversary and his accuser. To permit him to issue search warrants and indeed, warrants of
arrest, is to make him both judge and jury in his own right, when he is neither. That makes, to our mind
and to that extent, Presidential Decree No. 1936 as amended by Presidential Decree No. 2002,
unconstitutional. 5

Section 38, paragraph (c), of the Labor Code, as now written, was entered as an amendment by Presidential Decrees
Nos. 1920 and 2018 of the late President Ferdinand Marcos, to Presidential Decree No. 1693, in the exercise of his
legislative powers under Amendment No. 6 of the 1973 Constitution. Under the latter, the then Minister of Labor merely
exercised recommendatory powers:

(c) The Minister of Labor or his duly authorized representative shall have the power to recommend the
arrest and detention of any person engaged in illegal recruitment. 6

On May 1, 1984, Mr. Marcos promulgated Presidential Decree No. 1920, with the avowed purpose of giving more teeth to
the campaign against illegal recruitment. The Decree gave the Minister of Labor arrest and closure powers:

(b) The Minister of Labor and Employment shall have the power to cause the arrest and detention of such
non-licensee or non-holder of authority if after proper investigation it is determined that his activities
constitute a danger to national security and public order or will lead to further exploitation of job-seekers.
The Minister shall order the closure of companies, establishment and entities found to be engaged in the
recruitment of workers for overseas employment, without having been licensed or authorized to do so. 7

On January 26, 1986, he, Mr. Marcos, promulgated Presidential Decree No. 2018, giving the Labor Minister search and
seizure powers as well:

(c) The Minister of Labor and Employment or his duly authorized representatives shall have the power to
cause the arrest and detention of such non-licensee or non-holder of authority if after investigation it is
determined that his activities constitute a danger to national security and public order or will lead to further
exploitation of job-seekers. The Minister shall order the search of the office or premises and seizure of
documents, paraphernalia, properties and other implements used in illegal recruitment activities and the
closure of companies, establishment and entities found to be engaged in the recruitment of workers for
overseas employment, without having been licensed or authorized to do so. 8

The above has now been etched as Article 38, paragraph (c) of the Labor Code.

The decrees in question, it is well to note, stand as the dying vestiges of authoritarian rule in its twilight moments.

We reiterate that the Secretary of Labor, not being a judge, may no longer issue search or arrest warrants. Hence, the
authorities must go through the judicial process. To that extent, we declare Article 38, paragraph (c), of the Labor Code,
unconstitutional and of no force and effect.

The Solicitor General's reliance on the case of Morano v. Vivo 9 is not well-taken. Vivo involved a deportation case,
governed by Section 69 of the defunct Revised Administrative Code and by Section 37 of the Immigration Law. We have
ruled that in deportation cases, an arrest (of an undesirable alien) ordered by the President or his duly authorized
representatives, in order to carry out a final decision of deportation is valid. 10 It is valid, however, because of the
recognized supremacy of the Executive in matters involving foreign affairs. We have held: 11

xxx xxx xxx

The State has the inherent power to deport undesirable aliens (Chuoco Tiaco vs. Forbes, 228 U.S. 549,
57 L. Ed. 960, 40 Phil. 1122, 1125). That power may be exercised by the Chief Executive "when he
deems such action necessary for the peace and domestic tranquility of the nation." Justice Johnson's
opinion is that when the Chief Executive finds that there are aliens whose continued presence in the
country is injurious to the public interest, "he may, even in the absence of express law, deport them".
(Forbes vs. Chuoco Tiaco and Crossfield, 16 Phil. 534, 568, 569; In re McCulloch Dick, 38 Phil. 41).

The right of a country to expel or deport aliens because their continued presence is detrimental to public
welfare is absolute and unqualified (Tiu Chun Hai and Go Tam vs. Commissioner of Immigration and the
Director of NBI, 104 Phil. 949, 956). 12

The power of the President to order the arrest of aliens for deportation is, obviously, exceptional. It (the power to order
arrests) can not be made to extend to other cases, like the one at bar. Under the Constitution, it is the sole domain of the
courts.

Moreover, the search and seizure order in question, assuming, ex gratia argumenti, that it was validly issued, is clearly in
the nature of a general warrant:
 Pursuant to the powers vested in me under Presidential Decree No. 1920 and Executive Order No. 1022,
I hereby order the CLOSURE of your recruitment agency being operated at No. 615 R.O. Santos St.,
Mandaluyong, Metro Manila and the seizure of the documents and paraphernalia being used or intended
to be used as the means of committing illegal recruitment, it having verified that you have —

(1) No valid license or authority from the Department of Labor and Employment to recruit
and deploy workers for overseas employment;

(2) Committed/are committing acts prohibited under Article 34 of the New Labor Code in
relation to Article 38 of the same code.

This ORDER is without prejudice to your criminal prosecution under existing laws. 13

We have held that a warrant must identify clearly the things to be seized, otherwise, it is null and void, thus:

xxx xxx xxx

Another factor which makes the search warrants under consideration constitutionally objectionable is that
they are in the nature of general warrants. The search warrants describe the articles sought to be seized
in this wise:

1) All printing equipment, paraphernalia, paper, ink, photo equipment, typewriters,

cabinets, tables, communications/ recording equipment, tape recorders, dictaphone and
the like used and/or connected in the printing of the "WE FORUM" newspaper and any
and all documents/communications, letters and facsimile of prints related to the "WE
FORUM" newspaper.

2) Subversive documents, pamphlets, leaflets, books, and other publications to promote

the objectives and purposes of the subversive organizations known as Movement for
Free Philippines, Light-a-Fire Movement and April 6 Movement; and

3) Motor vehicles used in the distribution/circulation of the "WE FORUM" and other
subversive materials and propaganda, more particularly,

1) Toyota-Corolla, colored yellow with Plate No. NKA 892;

2) DATSUN, pick-up colored white with Plate No. NKV 969;

3) A delivery truck with Plate No. NBS 542;

4) TOYOTA-TAMARAW, colored white with Plate No. PBP 665; and

5) TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 472 with marking "Bagong Silang."

In Stanford v. State of Texas, the search warrant which authorized the search for "books, records,
pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments
concerning the Communist Parties of Texas, and the operations of the Community Party in Texas," was
declared void by the U.S. Supreme Court for being too general. In like manner, directions to "seize any
evidence in connection with the violation of SDC 13-3703 or otherwise" have been held too general, and
that portion of a search warrant which authorized the seizure of any "paraphernalia which could be used
to violate Sec. 54-197 of the Connecticut General Statutes (the statute dealing with the crime of
conspiracy)" was held to be a general warrant, and therefore invalid. The description of the articles sought
to be seized under the search warrants in question cannot be characterized differently.

In the Stanford case, the U.S. Supreme court calls to mind a notable chapter in English history; the era of
disaccord between the Tudor Government and the English Press, when "Officers of the Crown were given
roving commissions to search where they pleased in order to suppress and destroy the literature of
dissent both Catholic and Puritan." Reference herein to such historical episode would not be relevant for it
 is not the policy of our government to suppress any newspaper or publication that speaks with "the voice
of non-conformity" but poses no clear and imminent danger to state security. 14

For the guidance of the bench and the bar, we reaffirm the following principles:

1. Under Article III, Section 2, of the l987 Constitution, it is only judges, and no other, who may issue
warrants of arrest and search:

2. The exception is in cases of deportation of illegal and undesirable aliens, whom the President or the
Commissioner of Immigration may order arrested, following a final order of deportation, for the purpose of
deportation.

WHEREFORE, the petition is GRANTED. Article 38, paragraph (c) of the Labor Code is declared UNCONSTITUTIONAL
and null and void. The respondents are ORDERED to return all materials seized as a result of the implementation of
Search and Seizure Order No. 1205.

No costs.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Cortes, Griño-
Aquino, Medialdea and Regalado, JJ., concur.
G.R. No. 81510 March 14, 1990

HORTENCIA SALAZAR, petitioner,

vs.
HON. TOMAS D. ACHACOSO, in his capacity as Administrator of the Philippine Overseas Employment
Administration, and FERDIE MARQUEZ, respondents.

FACTS:
This concerns the validity of the power of the Secretary of Labor to issue warrants of arrest and seizure under Article
38 of the Labor Code, prohibiting illegal recruitment.
On October 21, 1987, Rosalie Tesoro filed with the POEA a complaint against petitioner. Having ascertained that the
petitioner had no license to operate a recruitment agency, public respondent Administrator Tomas D. Achacoso issued his
challenged CLOSURE AND SEIZURE ORDER.

The POEA brought a team to the premises of Salazar to implement the order. There it was found that petitioner
was operating Hannalie Dance Studio. Before entering the place, the team served said Closure and Seizure order on a
certain Mrs. Flora Salazar who voluntarily allowed them entry into the premises. Mrs. Flora Salazar informed the team that
Hannalie Dance Studio was accredited with Moreman Development (Phil.). However, when required to show credentials,
she was unable to produce any. Inside the studio, the team chanced upon twelve talent performers — practicing a dance
number and saw about twenty more waiting outside, The team confiscated assorted costumes which were duly receipted
for by Mrs. Asuncion Maguelan and witnessed by Mrs. Flora Salazar.

A few days after, petitioner filed a letter with the POEA demanding the return of the confiscated properties. They
alleged lack of hearing and due process, and that since the house the POEA raided was a private residence, it was robbery.
On February 2, 1988, the petitioner filed this suit for prohibition. Although the acts sought to be barred are already fait
accompli, thereby making prohibition too late, we consider the petition as one for certiorari in view of the grave public interest
involved.

ISSUE:
May the Philippine Overseas Employment Administration (or the Secretary of Labor) validly issue warrants of search
and seizure (or arrest) under Article 38 of the Labor Code?

HELD:
PETITION GRANTED. it is only a judge who may issue warrants of search and arrest. Neither may it be done by a
mere prosecuting body.
We reiterate that the Secretary of Labor, not being a judge, may no longer issue search or arrest warrants. Hence,
the authorities must go through the judicial process. To that extent, we declare Article 38, paragraph (c), of the Labor Code,
unconstitutional and of no force and effect.
Moreover, the search and seizure order in question, assuming, ex gratia argumenti, that it was validly issued, is clearly in
the nature of a general warrant. We have held that a warrant must identify clearly the things to be seized, otherwise, it is
null and void
For the guidance of the bench and the bar, we reaffirm the following principles:

1. Under Article III, Section 2, of the l987 Constitution, it is only judges, and no other, who may issue warrants of arrest
and search:
2. The exception is in cases of deportation of illegal and undesirable aliens, whom the President or the Commissioner of
Immigration may order arrested, following a final order of deportation, for the purpose of deportation.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-64261 December 26, 1984

JOSE BURGOS, SR., JOSE BURGOS, JR., BAYANI SORIANO and J. BURGOS MEDIA SERVICES, INC., petitioners,
vs.
THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, THE CHIEF, PHILIPPINE CONSTABULARY, THE CHIEF LEGAL
OFFICER, PRESIDENTIAL SECURITY COMMAND, THE JUDGE ADVOCATE GENERAL, ET AL., respondents.

Lorenzo M. Tañada, Wigberto E. Tañada, Martiniano Vivo, Augusto Sanchez, Joker P. Arroyo, Jejomar Binay and Rene Saguisag for
petitioners.

The Solicitor General for respondents.

ESCOLIN, J.:

Assailed in this petition for certiorari prohibition and mandamus with preliminary mandatory and prohibitory injunction is the validity of
two [2] search warrants issued on December 7, 1982 by respondent Judge Ernani Cruz-Pano, Executive Judge of the then Court of
First Instance of Rizal [Quezon City], under which the premises known as No. 19, Road 3, Project 6, Quezon City, and 784 Units C & D,
RMS Building, Quezon Avenue, Quezon City, business addresses of the "Metropolitan Mail" and "We Forum" newspapers,
respectively, were searched, and office and printing machines, equipment, paraphernalia, motor vehicles and other articles used in the
printing, publication and distribution of the said newspapers, as well as numerous papers, documents, books and other written literature
alleged to be in the possession and control of petitioner Jose Burgos, Jr. publisher-editor of the "We Forum" newspaper, were seized.

Petitioners further pray that a writ of preliminary mandatory and prohibitory injunction be issued for the return of the seized articles, and
that respondents, "particularly the Chief Legal Officer, Presidential Security Command, the Judge Advocate General, AFP, the City
Fiscal of Quezon City, their representatives, assistants, subalterns, subordinates, substitute or successors" be enjoined from using the
articles thus seized as evidence against petitioner Jose Burgos, Jr. and the other accused in Criminal Case No. Q- 022782 of the
Regional Trial Court of Quezon City, entitled People v. Jose Burgos, Jr. et al. 1

In our Resolution dated June 21, 1983, respondents were required to answer the petition. The plea for preliminary mandatory and
prohibitory injunction was set for hearing on June 28, 1983, later reset to July 7, 1983, on motion of the Solicitor General in behalf of
respondents.

At the hearing on July 7, 1983, the Solicitor General, while opposing petitioners' prayer for a writ of preliminary mandatory injunction,
manifested that respondents "will not use the aforementioned articles as evidence in the aforementioned case until final resolution of
the legality of the seizure of the aforementioned articles. ..." 2 With this manifestation, the prayer for preliminary prohibitory injunction
was rendered moot and academic.

Respondents would have this Court dismiss the petition on the ground that petitioners had come to this Court without having previously
sought the quashal of the search warrants before respondent judge. Indeed, petitioners, before impugning the validity of the warrants
before this Court, should have filed a motion to quash said warrants in the court that issued them. 3 But this procedural flaw
notwithstanding, we take cognizance of this petition in view of the seriousness and urgency of the constitutional issues raised not to
mention the public interest generated by the search of the "We Forum" offices, which was televised in Channel 7 and widely publicized
in all metropolitan dailies. The existence of this special circumstance justifies this Court to exercise its inherent power to suspend its
rules. In the words of the revered Mr. Justice Abad Santos in the case of C. Vda. de Ordoveza v. Raymundo, 4 "it is always in the power
of the court [Supreme Court] to suspend its rules or to except a particular case from its operation, whenever the purposes of justice
require it...".

Respondents likewise urge dismissal of the petition on ground of laches. Considerable stress is laid on the fact that while said search
warrants were issued on December 7, 1982, the instant petition impugning the same was filed only on June 16, 1983 or after the lapse
of a period of more than six [6] months.

Laches is failure or negligence for an unreasonable and unexplained length of time to do that which, by exercising due diligence, could
or should have been done earlier. It is negligence or omission to assert a right within a reasonable time, warranting a presumption that
the party entitled to assert it either has abandoned it or declined to assert it. 5

Petitioners, in their Consolidated Reply, explained the reason for the delay in the filing of the petition thus:
 Respondents should not find fault, as they now do [p. 1, Answer, p. 3, Manifestation] with the fact that the Petition
was filed on June 16, 1983, more than half a year after the petitioners' premises had been raided.

The climate of the times has given petitioners no other choice. If they had waited this long to bring their case to court,
it was because they tried at first to exhaust other remedies. The events of the past eleven fill years had taught them
that everything in this country, from release of public funds to release of detained persons from custody, has become
a matter of executive benevolence or largesse

Hence, as soon as they could, petitioners, upon suggestion of persons close to the President, like Fiscal Flaminiano,
sent a letter to President Marcos, through counsel Antonio Coronet asking the return at least of the printing
equipment and vehicles. And after such a letter had been sent, through Col. Balbino V. Diego, Chief Intelligence and
Legal Officer of the Presidential Security Command, they were further encouraged to hope that the latter would yield
the desired results.

After waiting in vain for five [5] months, petitioners finally decided to come to Court. [pp. 123-124, Rollo]

Although the reason given by petitioners may not be flattering to our judicial system, We find no ground to punish or chastise them for
an error in judgment. On the contrary, the extrajudicial efforts exerted by petitioners quite evidently negate the presumption that they
had abandoned their right to the possession of the seized property, thereby refuting the charge of laches against them.

Respondents also submit the theory that since petitioner Jose Burgos, Jr. had used and marked as evidence some of the seized
documents in Criminal Case No. Q- 022872, he is now estopped from challenging the validity of the search warrants. We do not follow
the logic of respondents. These documents lawfully belong to petitioner Jose Burgos, Jr. and he can do whatever he pleases with them,
within legal bounds. The fact that he has used them as evidence does not and cannot in any way affect the validity or invalidity of the
search warrants assailed in this petition.

Several and diverse reasons have been advanced by petitioners to nullify the search warrants in question.

1. Petitioners fault respondent judge for his alleged failure to conduct an examination under oath or affirmation of the applicant and his
witnesses, as mandated by the above-quoted constitutional provision as wen as Sec. 4, Rule 126 of the Rules of Court . 6 This
objection, however, may properly be considered moot and academic, as petitioners themselves conceded during the hearing on August
9, 1983, that an examination had indeed been conducted by respondent judge of Col. Abadilla and his witnesses.

2. Search Warrants No. 20-82[a] and No. 20- 82[b] were used to search two distinct places: No. 19, Road 3, Project 6, Quezon City and
784 Units C & D, RMS Building, Quezon Avenue, Quezon City, respectively. Objection is interposed to the execution of Search W arrant
No. 20-82[b] at the latter address on the ground that the two search warrants pinpointed only one place where petitioner Jose Burgos,
Jr. was allegedly keeping and concealing the articles listed therein, i.e., No. 19, Road 3, Project 6, Quezon City. This assertion is based
on that portion of Search Warrant No. 20- 82[b] which states:

Which have been used, and are being used as instruments and means of committing the crime of subversion
penalized under P.D. 885 as amended and he is keeping and concealing the same at 19 Road 3, Project 6, Quezon
City.

The defect pointed out is obviously a typographical error. Precisely, two search warrants were applied for and issued because the
purpose and intent were to search two distinct premises. It would be quite absurd and illogical for respondent judge to have issued two
warrants intended for one and the same place. Besides, the addresses of the places sought to be searched were specifically set forth in
the application, and since it was Col. Abadilla himself who headed the team which executed the search warrants, the ambiguity that
might have arisen by reason of the typographical error is more apparent than real. The fact is that the place for which Search Warrant
No. 20- 82[b] was applied for was 728 Units C & D, RMS Building, Quezon Avenue, Quezon City, which address appeared in the
opening paragraph of the said warrant. 7 Obviously this is the same place that respondent judge had in mind when he issued Warrant
No. 20-82 [b].

In the determination of whether a search warrant describes the premises to be searched with sufficient particularity, it has been held
"that the executing officer's prior knowledge as to the place intended in the warrant is relevant. This would seem to be especially true
where the executing officer is the affiant on whose affidavit the warrant had issued, and when he knows that the judge who issued the
warrant intended the building described in the affidavit, And it has also been said that the executing officer may look to the affidavit in
the official court file to resolve an ambiguity in the warrant as to the place to be searched." 8

3. Another ground relied upon to annul the search warrants is the fact that although the warrants were directed against Jose Burgos, Jr.
alone, articles b belonging to his co-petitioners Jose Burgos, Sr., Bayani Soriano and the J. Burgos Media Services, Inc. were seized.

Section 2, Rule 126 of the Rules of Court, enumerates the personal properties that may be seized under a search warrant, to wit:
 Sec. 2. Personal Property to be seized. — A search warrant may be issued for the search and seizure of the following
personal property:

[a] Property subject of the offense;

[b] Property stolen or embezzled and other proceeds or fruits of the offense; and

[c] Property used or intended to be used as the means of committing an offense.

The above rule does not require that the property to be seized should be owned by the person against whom the search warrant is
directed. It may or may not be owned by him. In fact, under subsection [b] of the above-quoted Section 2, one of the properties that may
be seized is stolen property. Necessarily, stolen property must be owned by one other than the person in whose possession it may be
at the time of the search and seizure. Ownership, therefore, is of no consequence, and it is sufficient that the person against whom the
warrant is directed has control or possession of the property sought to be seized, as petitioner Jose Burgos, Jr. was alleged to have in
relation to the articles and property seized under the warrants.

4. Neither is there merit in petitioners' assertion that real properties were seized under the disputed warrants. Under Article 415[5] of the
Civil Code of the Philippines, "machinery, receptables, instruments or implements intended by the owner of the tenement for an industry
or works which may be carried on in a building or on a piece of land and which tend directly to meet the needs of the said industry or
works" are considered immovable property. In Davao Sawmill Co. v. Castillo9 where this legal provision was invoked, this Court ruled
that machinery which is movable by nature becomes immobilized when placed by the owner of the tenement, property or plant, but not
so when placed by a tenant, usufructuary, or any other person having only a temporary right, unless such person acted as the agent of
the owner.

In the case at bar, petitioners do not claim to be the owners of the land and/or building on which the machineries were placed. This
being the case, the machineries in question, while in fact bolted to the ground remain movable property susceptible to seizure under a
search warrant.

5. The questioned search warrants were issued by respondent judge upon application of Col. Rolando N. Abadilla Intelligence Officer of
the P.C. Metrocom.10 The application was accompanied by the Joint Affidavit of Alejandro M. Gutierrez and Pedro U.
Tango, 11 members of the Metrocom Intelligence and Security Group under Col. Abadilla which conducted a surveillance of the
premises prior to the filing of the application for the search warrants on December 7, 1982.

It is contended by petitioners, however, that the abovementioned documents could not have provided sufficient basis for the finding of a
probable cause upon which a warrant may validly issue in accordance with Section 3, Article IV of the 1973 Constitution which
provides:

SEC. 3. ... and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by
the judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation
of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the
persons or things to be seized.

We find petitioners' thesis impressed with merit. Probable cause for a search is defined as such facts and circumstances which would
lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection
with the offense are in the place sought to be searched. And when the search warrant applied for is directed against a newspaper
publisher or editor in connection with the publication of subversive materials, as in the case at bar, the application and/or its supporting
affidavits must contain a specification, stating with particularity the alleged subversive material he has published or is intending to
publish. Mere generalization will not suffice. Thus, the broad statement in Col. Abadilla's application that petitioner "is in possession or
has in his control printing equipment and other paraphernalia, news publications and other documents which were used and are all
continuously being used as a means of committing the offense of subversion punishable under Presidential Decree 885, as amended
..." 12 is a mere conclusion of law and does not satisfy the requirements of probable cause. Bereft of such particulars as would justify a
finding of the existence of probable cause, said allegation cannot serve as basis for the issuance of a search warrant and it was a grave
error for respondent judge to have done so.

Equally insufficient as basis for the determination of probable cause is the statement contained in the joint affidavit of Alejandro M.
Gutierrez and Pedro U. Tango, "that the evidence gathered and collated by our unit clearly shows that the premises above- mentioned
and the articles and things above-described were used and are continuously being used for subversive activities in conspiracy with, and
to promote the objective of, illegal organizations such as the Light-a-Fire Movement, Movement for Free Philippines, and April 6
Movement." 13

In mandating that "no warrant shall issue except upon probable cause to be determined by the judge, ... after examination under oath or
affirmation of the complainant and the witnesses he may produce; 14 the Constitution requires no less than personal knowledge by the
complainant or his witnesses of the facts upon which the issuance of a search warrant may be justified. In Alvarez v. Court of First
Instance, 15 this Court ruled that "the oath required must refer to the truth of the facts within the personal knowledge of the petitioner or
his witnesses, because the purpose thereof is to convince the committing magistrate, not the individual making the affidavit and seeking
the issuance of the warrant, of the existence of probable cause." As couched, the quoted averment in said joint affidavit filed before
respondent judge hardly meets the test of sufficiency established by this Court in Alvarez case.

Another factor which makes the search warrants under consideration constitutionally objectionable is that they are in the nature of
general warrants. The search warrants describe the articles sought to be seized in this wise:

1] All printing equipment, paraphernalia, paper, ink, photo (equipment, typewriters, cabinets, tables,
communications/recording equipment, tape recorders, dictaphone and the like used and/or connected in the printing
of the "WE FORUM" newspaper and any and all documents communication, letters and facsimile of prints related to
the "WE FORUM" newspaper.

2] Subversive documents, pamphlets, leaflets, books, and other publication to promote the objectives and piurposes
of the subversive organization known as Movement for Free Philippines, Light-a-Fire Movement and April 6
Movement; and,

3] Motor vehicles used in the distribution/circulation of the "WE FORUM" and other subversive materials and
propaganda, more particularly,

1] Toyota-Corolla, colored yellow with Plate No. NKA 892;

2] DATSUN pick-up colored white with Plate No. NKV 969

3] A delivery truck with Plate No. NBS 524;

4] TOYOTA-TAMARAW, colored white with Plate No. PBP 665; and,

5] TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 427 with marking "Bagong Silang."

In Stanford v. State of Texas 16 the search warrant which authorized the search for "books, records, pamphlets, cards, receipts, lists,
memoranda, pictures, recordings and other written instruments concerning the Communist Party in Texas," was declared void by the
U.S. Supreme Court for being too general. In like manner, directions to "seize any evidence in connectionwith the violation of SDC 13-
3703 or otherwise" have been held too general, and that portion of a search warrant which authorized the seizure of any "paraphernalia
which could be used to violate Sec. 54-197 of the Connecticut General Statutes [the statute dealing with the crime of conspiracy]" was
held to be a general warrant, and therefore invalid. 17 The description of the articles sought to be seized under the search warrants in
question cannot be characterized differently.

In the Stanford case, the U.S. Supreme Courts calls to mind a notable chapter in English history: the era of disaccord between the
Tudor Government and the English Press, when "Officers of the Crown were given roving commissions to search where they pleased in
order to suppress and destroy the literature of dissent both Catholic and Puritan Reference herein to such historical episode would not
be relevant for it is not the policy of our government to suppress any newspaper or publication that speaks with "the voice of non-
conformity" but poses no clear and imminent danger to state security.

As heretofore stated, the premises searched were the business and printing offices of the "Metropolitan Mail" and the "We Forum
newspapers. As a consequence of the search and seizure, these premises were padlocked and sealed, with the further result that the
printing and publication of said newspapers were discontinued.

Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the press guaranteed under the
fundamental law, 18 and constitutes a virtual denial of petitioners' freedom to express themselves in print. This state of being is patently
anathematic to a democratic framework where a free, alert and even militant press is essential for the political enlightenment and
growth of the citizenry.

Respondents would justify the continued sealing of the printing machines on the ground that they have been sequestered under Section
8 of Presidential Decree No. 885, as amended, which authorizes "the sequestration of the property of any person, natural or artificial,
engaged in subversive activities against the government and its duly constituted authorities ... in accordance with implementing rules
and regulations as may be issued by the Secretary of National Defense." It is doubtful however, if sequestration could validly be
effected in view of the absence of any implementing rules and regulations promulgated by the Minister of National Defense.

Besides, in the December 10, 1982 issue of the Daily Express, it was reported that no less than President Marcos himself denied the
request of the military authorities to sequester the property seized from petitioners on December 7, 1982. Thus:

The President denied a request flied by government prosecutors for sequestration of the WE FORUM newspaper and
its printing presses, according to Information Minister Gregorio S. Cendana.
 On the basis of court orders, government agents went to the We Forum offices in Quezon City and took a detailed
inventory of the equipment and all materials in the premises.

Cendaña said that because of the denial the newspaper and its equipment remain at the disposal of the owners,
subject to the discretion of the court. 19

That the property seized on December 7, 1982 had not been sequestered is further confirmed by the reply of then Foreign Minister
Carlos P. Romulo to the letter dated February 10, 1983 of U.S. Congressman Tony P. Hall addressed to President Marcos, expressing
alarm over the "WE FORUM " case. 20 In this reply dated February 11, 1983, Minister Romulo stated:

2. Contrary to reports, President Marcos turned down the recommendation of our authorities to close the paper's
printing facilities and confiscate the equipment and materials it uses. 21

IN VIEW OF THE FOREGOING, Search Warrants Nos. 20-82[a] and 20-82[b] issued by respondent judge on December 7, 1982 are
hereby declared null and void and are accordingly set aside. The prayer for a writ of mandatory injunction for the return of the seized
articles is hereby granted and all articles seized thereunder are hereby ordered released to petitioners. No costs.

SO ORDERED.

Fernando, C.J., Teehankee, Makasiar, Concepcion, Jr., Melencio-Herrera, Plana, Relova, Gutierrez, Jr., De la Fuente and Cuevas, JJ.,
concur.

Aquino, J., took no part.

Separate Opinions

ABAD SANTOS, J., concurring

I am glad to give my concurrence to the ponencia of Mr. Justice Escolin At the same time I wish to state my own reasons for holding
that the search warrants which are the subject of the petition are utterly void.

The action against "WE FORUM" was a naked suppression of press freedom for the search warrants were issued in gross violation of
the Constitution.

The Constitutional requirement which is expressed in Section 3, Article IV, stresses two points, namely: "(1) that no warrant shall issue
but upon probable cause, to be determined by the judge in the manner set forth in said provision; and (2) that the warrant shall
particularly describe the things to be seized." (Stonehill vs. Diokno, 126 Phil. 738, 747: 20 SCRA 383 [1967].)

Any search warrant is conducted in disregard of the points mentioned above will result in wiping "out completely one of the most
fundamental rights guaranteed in our Constitution, for it would place the sanctity of the domicile and the privacy of communication and
correspondence at the mercy of the whims caprice or passion of peace officers." (Ibid, p. 748.)

The two search warrants were issued without probable cause. To satisfy the requirement of probable cause a specific offense must be
alleged in the application; abstract averments will not suffice. In the case at bar nothing specifically subversive has been alleged; stated
only is the claim that certain objects were being used as instruments and means of committing the offense of subversion punishable
under P.D. No. 885, as amended. There is no mention of any specific provision of the decree. I n the words of Chief Justice C
Concepcion, " It would be legal heresy of the highest order, to convict anybody" of violating the decree without reference to any
determinate provision thereof.

The search warrants are also void for lack of particularity. Both search warrants authorize Col. Rolando Abadilla to seize and take
possession, among other things, of the following:

Subversive documents, pamphlets, leaflets, books and other publication to promote the objectives and purposes of
the subversive organizations known as Movement for Free Philippines, Light-a-Fire Movement and April 6 Movement.
The obvious question is: Why were the documents, pamphlets, leaflets, books, etc. subversive? What did they contain to make them
subversive? There is nothing in the applications nor in the warrants which answers the questions. I must, therefore, conclude that the
warrants are general warrants which are obnoxious to the Constitution.

In point of fact, there was nothing subversive published in the WE FORUM just as there is nothing subversive which has been
published in MALAYA which has replaced the former and has the same content but against which no action has been taken.

Conformably with existing jurisprudence everything seized pursuant to the warrants should be returned to the owners and all of the
items are subject to the exclusionary rule of evidence.

Teehankee, J., concur.

Separate Opinions

ABAD SANTOS, J., concurring

I am glad to give my concurrence to the ponencia of Mr. Justice Escolin At the same time I wish to state my own reasons for holding
that the search warrants which are the subject of the petition are utterly void.

The action against "WE FORUM" was a naked suppression of press freedom for the search warrants were issued in gross violation of
the Constitution.

The Constitutional requirement which is expressed in Section 3, Article IV, stresses two points, namely: "(1) that no warrant shall issue
but upon probable cause, to be determined by the judge in the manner set forth in said provision; and (2) that the warrant shall
particularly describe the things to be seized." (Stonehill vs. Diokno, 126 Phil. 738, 747: 20 SCRA 383 [1967].)

Any search warrant is conducted in disregard of the points mentioned above will result in wiping "out completely one of the most
fundamental rights guaranteed in our Constitution, for it would place the sanctity of the domicile and the privacy of communication and
correspondence at the mercy of the whims caprice or passion of peace officers." (Ibid, p. 748.)

The two search warrants were issued without probable cause. To satisfy the requirement of probable cause a specific offense must be
alleged in the application; abstract averments will not suffice. In the case at bar nothing specifically subversive has been alleged; stated
only is the claim that certain objects were being used as instruments and means of committing the offense of subversion punishable
under P.D. No. 885, as amended. There is no mention of any specific provision of the decree. I n the words of Chief Justice C
Concepcion, " It would be legal heresy of the highest order, to convict anybody" of violating the decree without reference to any
determinate provision thereof.

The search warrants are also void for lack of particularity. Both search warrants authorize Col. Rolando Abadilla to seize and take
possession, among other things, of the following:

Subversive documents, pamphlets, leaflets, books and other publication to promote the objectives and purposes of
the subversive organizations known as Movement for Free Philippines, Light-a-Fire Movement and April 6 Movement.

The obvious question is: Why were the documents, pamphlets, leaflets, books, etc. subversive? What did they contain to make them
subversive? There is nothing in the applications nor in the warrants which answers the questions. I must, therefore, conclude that the
warrants are general warrants which are obnoxious to the Constitution.

In point of fact, there was nothing subversive published in the WE FORUM just as there is nothing subversive which has been
published in MALAYA which has replaced the former and has the same content but against which no action has been taken.

Conformably with existing jurisprudence everything seized pursuant to the warrants should be returned to the owners and all of the
items are subject to the exclusionary rule of evidence.

Teehankee, J., concur.

Jose Burgos vs. Chief of Staff
G.R. No L-64261
December 26, 1984

Facts:

Respondent Judge Ernani Cruz-Pano issued 2 search warrants to search the premises of of the “Metropolitan
Mail” and “We Forum”. Various equipment, paraphernalia and written documents were searched. Written
literature alleged to be in the possession and control of petitioner Jose Burgos, Jr., publisher-editor of “We
Forum” newspaper were seized.

The validity of these warrants were questioned through a petition for certiorari and so that the articles and
equipment may be returned to the petitioners.

Issue:

Whether or not the warrant of arrest is valid to justify the seizure of the items.

Supreme Court Ruling:

The law provides that “…no search warrant or warrant of arrest shall issue except upon probable cause to be
determined by the judge, or such other responsible officer as may be authorized by law, after examination
under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the
place to be searched and the persons or things to be seized.”

Probable cause for a search is defined as such facts and circumstances which would lead a reasonably
discreet and prudent man to believe that an offense has been committed and that the objects sought in
connection with the offense are in the place sought to be searched. In the case, the reason for the seizure
must be well stated, as well as the specifications and the particularities of the alleged subversive material that
the petitioner has published or is intending to publish. Mere generalization will not suffice. Thus, the broad
statement in Col. Abadilla’s application is a mere conclusion of law and does not satisfy the requirements of
probable cause. The warrant is constitutionally objectionable because they are in the nature of general
warrants.

The search warrants were declared null and void.