[G.R. No. 28457. October 15, 1928.

THE COMPANY "BIGHANI," EUGENIO TANSIOCO, ERIBERTO ESTRELLA, JUAN F. BARTOLOME, NICANOR RAMIREZ,
CIRIACO DE JESUS, INOCENCIO ESPIRITU, JUAN GOMEZ, FABIAN ALONALON, GABRIEL BADAGUAS, BLAS FAJARDO,
JUAN ESGUERRA, FABIAN CRUZ, NICOLAS REYES and REGINO DIZON, Plaintiffs-Appellants, v. PABLO PABLO, BLAS
BERNARDINO, THE MUNICIPAL COUNCIL OF CALOOCAN, and THE MUNICIPALITY OF CALOOCAN, Defendants-
Appellees.

DeWitt, Perkins & Brady and Sumulong, Lavides & Hilado for Appellants.

Crossfield & O’Brien, Ramon Diokno and Agustin P. Aquino for Appellees.

SYLLABUS

1. MUNICIPAL ORDINANCES; AUTHORITY TO ISSUE PERMITS FOR COCKFIGHTS. — Under Municipal Ordinance No. 8,
series of 1912, of the municipality of Caloocan, the municipal president is merely authorized to issue a permit for cock-
fighting, and, in the absence of a special order from the municipal council, he is not bound to issue such permit but may
exercise his sound discretion within the limits permitted by the municipal board.

DECISION

OSTRAND, J.:

This is in effect a petition for a writ of mandamus to compel the defendants to issue a permit or license for the operation
of a cockpit constructed by the plaintiffs in the sitio of Galas, municipality of Caloocan.

The plaintiff company "Bighani" is a civil partnership organized on May 8, 1926, in accordance with the provisions of the
Civil Code, with a capital stock of P20,000 divided into 4,000 equal shares. The other plaintiffs are shareholders and
members of the board of directors of the partnership, Eugenio Tansioco being the president. The defendants Pablo
Pablo and Blas Bernardino are the president an vice-president respectively of the municipality of Caloocan, Province of
Rizal, and the other defendants are the municipal council of Caloocan and the municipality of Caloocan.

Previously to the organization of the partnership, the plaintiff Eugenio Tansioco wrote the following letter to the
municipal president of Caloocan:jgc:chanrobles.com.ph

"GALAS, 24 de abril de 1926

"Sr. PABLO PABLO

"Presidente Municipal

"Caloocan, Rizal, I. F.

"SEÑOR: El que suscribe, tiene el honor de informar a Vda. que el tiene la intencion de abrir una Gallera en el sitio o
barrio denominado Galas dentro de la jurisdiccion de este municipio, y con arreglo a dicha intencion solicita a Su Señoria
y al Hon. Concejo Municipal de Caloocan el permiso necesario para la construccion de la mencionada gallera bajo las
disposiciones de las Ordenanzas vigentes sobre la materia.

"Muy respetuosamente,

"(Fdo.) EUGENIO TANSIOCO

"Solicitante

"Galas, Caloocan, Rizal"

The letter was submitted to the municipal council on May 6, 1926, at the first meeting of said council after the receipt of
the letter. Upon the reading of the letter the council, by resolution, authorized the municipal president to appoint a
special committee of three of its members to ascertain if the place in which Tansioco proposed to erect a building was in
conformity with the conditions prescribed by the municipal ordinances. The plaintiff Tansioco and other members of the
partnership were present at the session of the municipal council when the matter was discussed.

The special committee was duly appointed, and at the next meeting of the municipal council, on May 14, 1926, its
report, which reads as follows, was submitted:jgc:chanrobles.com.ph

"That on or about March 10th, 1925, Municipal President Pablo Pablo issued a permit to Mr. Juan Domingo, of San Juan
del Monte, Rizal, to establish, maintain, operate and open for public use a cockpit in the sitio of Galas-Santol within the
jurisdiction of this municipality near the Tuberculosis Sanatorium. But the Philippine Islands Anti-tuberculosis Society
through its Executive Secretary in a letter addressed to Mr. Juan Domingo dated May 6, 1926, and indorsed to this
committee for corresponding action has expressed its objection to the establishment of a cockpit near the said
sanatorium alleging in support of said objection reasons so strong and so convincing that this committee was
constrained to inspect the said barrio of Galas-Santol, for the purpose of inspecting the topographic conditions of said
locality wherein it is proposed to erect the cockpit of Mr. Juan Domingo and to ascertain for itself whether or not the
objection presented by the Philippine Islands Antituberculosis Society is reasonable. As a result of said ocular inspection
it was found that as a matter of fact the place where it is sought to establish the cockpit of Mr. Juan Domingo is near the
Tuberculosis Sanatorium, being only 200 meters away; so that if this cockpit should be constructed and be opened for
the use of the public in general, the noise and shouting which result during the days that said cockpit is in operation will
greatly disturb the tranquility of the patients staying in said Tuberculosis Sanatorium.

"It likewise results that on or about May 6th, 1926, a petition was filed by Mr. Eugenio Tansioco asking permission to
establish, maintain, and open to the public in general a cockpit in the same sitio of Galas-Santol of this municipality,
which petition was responsible for the creation of this Committee by the Honorable Municipal Council for the purpose of
making report and recommendation in relation to said petition.

"From the study and investigation made by this committee it likewise results that the barrio of Galas-Santol of this
municipality covers so much area that within it may be established two cockpits in accordance with the provisions of the
municipal ordinance now in force. For this reason this committee according to the request contained in the letter
forwarded by the Philippine Islands Antituberculosis Society interviewed the authorities of said association for the
purpose of learning through first-hand information the inconveniences and disturbances to which the establishment of
cockpits near the Tuberculosis Sanatorium might give rise. The Assistant Director of the Philippine Islands
Antituberculosis Society speaking on this matter informed the committee that the establishment of the cockpit near the
sanatorium would disturb the peace, would be prejudicial to the tranquility and impair the speedy cure of patients in
said sanatorium for the reason that the great majority of tuberculosis patients likewise suffer from nervous diseases,
neuralgia, or neurasthenia as a result of which they suffer from over-excitement produced by noise or outcry. The
moment they suffer an attack of said diseases their condition as consumptives becomes worse for the reason that in the
treatment of this disease, complete repose is absolutely necessary.

"Wherefore this special committee considering all the facts and circumstances brought to its attention on time begs to
make the following recommendations to the Honorable Municipal Council:jgc:chanrobles.com.ph

"1. That for the purpose of safeguarding the peace, welfare and the treatment of patients confined in the Philippine
Islands Antituberculosis Society established in the barrio of Galas-Santol, of this municipality, there be adopted a
municipal ordinance amendatory to article 4 of Ordinance No. 8, series of 1912 and its amendments, prohibiting the
establishment of cockpits within a radius of 1,500 meters from the Tuberculosis Sanatorium in Galas-Santol, of this
municipality.

"2. That after the enactment of said amendatory ordinance the municipal president issue a permit to all the petitioners
seeking authority to construct cockpit; provided, however, that previous to the issuance of said permit, said petition be
referred to this committee to the end that the petitioner or petitioners may be notified by this committee and instructed
to indicate the place or places where it is proposed to erect such edifice for use as a cockpit after which this committee
shall inform the municipal president as to the propriety of issuing the permit asked for.

"3. That Mr. Juan Domingo, holder of a permit dated March 10th, 1926, to establish a cockpit in the sitio of Galas-Santol,
of this municipality be advised that his cockpit should be established and constructed at a distance of 1,500 meters from
the Tuberculosis Sanatorium in Galas-Santol.

"4. That Eugenio Tansioco, another petitioner seeking permission to construct a cockpit, be likewise notified that the
building which he desires to construct in the barrio of Galas-Santol, of this municipality be erected at a distance of 1,000
meters from the place which Mr. Juan Domingo may designate as the place which he shall use as the site for the
erection of his cockpit."cralaw virtua1aw library

The municipal council approved the foregoing report and resolved to adopt an ordinance in accordance with the
recommendations contained in said report. A for such an ordinance was immediately presented by Patricio Golauran, a
member of the council, and upon the recommendation of the committee on ordinances, the proyecto was adopted and
passed as Ordinance No. 15, series of 1926. It reads as follows:jgc:chanrobles.com.ph

" [ORDENANZA NO. 15]

"ORDENANZA REFORMANDO EL ARTICULO 3 DE LA ORDENANZA NO. 8, SERIE DE 1912, Y QUE PROVEE A OTROS
FINES:jgc:chanrobles.com.ph

"Ordenase por el Concejo Municipal de Caloocan, Rizal, que:jgc:chanrobles.com.ph

"ARTICULO 1. Por la presente se reforma el articulo 3 de la Ordenanza No. 8, serie de 1912, de tal modo que el mismo se
lea como sigue:jgc:chanrobles.com.ph

"‘ART. 3. No habra mas que una sola gallera dentro del perimetro que comprende las calles A. Mabini (desde Maypajo
pasando por Sangandaan, hasta los divisorios oeste y norte entre Malabon y Caloocan) Gral. San Miguel, A. Samson y A.
Bonifacio, cuyo edificio debera estar levantado a una distancia no menor de mil metros del Gobierno Municipal, en
todos sus lados, y tantas cuantas otras galleras fuera de dicho perimetro, siempre y cuando que las mismas guarden
entre si una distancia no menor de mil quinientos metros de otra gallera mas proxima, debidamente explotada, o de
cualquier edificio del Gobierno, destinado para Escuelas Publicas, Hospitales u otras Instituciones o Fundaciones creadas
y existentes para fines de Beneficencia: Entendiendose, Que nada de lo dispuesto en este articulo debera entenderse
como de caracter retroactivo en orden a cualquiera gallera debidamente establecida al tiempo de la vigencia de la
presente.’

"ART. 2. Todas las ordenanzas, resoluciones o reglamentos que esten en pugna con esta Ordenanza quedan por la
presente derogados.

"ART. 3. Exigiendo el bienestar publico la pronta e inmediata vigencia de esta Ordenanza, la misma entrara en vigor en
cuanto sea aprobada.

"Aprobada por unanimidad, hoy mayo 14, 1926."cralaw virtua1aw library

On May 20, 1926, the municipal president made the following answer to Tansioco’s communication of April
24th:jgc:chanrobles.com.ph

"SEÑOR: Vista su solicitud, de fecha 24 de abril de 1926, pidiendo se le permita construir un edificio destinado para
gallera, en el sitio de Galas, de la jurisdiccion de este municipio, y no encontrando esta oficina motivos que se opongan a
su pretension, por la presente se le concede el permiso solicitado, y, una vez certificado por las autoridades
correspondientes de que vuestro edificio esta construido de acuerdo con las disposiciones de nuestras Ordenanzas y
Reglamentos sobre la materia y reune las condiciones exigidas por los mismos, se le expedira el permiso consiguiente
para su apertura y explotacion, previo pago de los impuestos municipales.
"Para los efectos de la distancia prescrita por el articulo 3 de la Ordenanza No. 8, serie de 1912, tal como fue
enmendado por el articulo 1 de la Ordenanza No. 15, serie de 1926, se le llama su atencion al hecho de que esta oficina
ha expedido otro permiso a favor del Sr. J. Domingo, de San Juan, Rizal, para que pueda levantar un edificio tambien
destinado para Gallera en el mismo sitio mencionado en su solicitud.

"Muy respetuosamente,

"(Fdo.) P. PABLO

"Presidente Municipal"

Two days later, Tansioco made a formal application for a building permit for the construction of a cockpit of strong
materials and covering an area of 1,500 square meters in the sitio of Galas. The municipal secretary referred the
application to the department of police for investigation and recommendation. The chief of police referred the matter to
the division of sanitation of Caloocan with the information that he saw no reason to oppose the application. The
president of sanitation thereupon returned the application to the municipal president with the recommendation that it
be approved. The plaintiffs maintain that the recommendations of the chief of police and the president of sanitation
were made upon personal investigation made by them at the place where the cockpit was to be constructed, but we
think the weight of the evidence shows that they were based merely upon information furnished by Tansioco.

Tansioco’s application having been returned to the municipal president, a building permit was issued to Tansioco in the
following terms:jgc:chanrobles.com.ph

"Por la presente se concede permiso a Eugenio Tansioco para construir o edificar un edificio de materiales fuertes en el
lugar arriba indicado, previo pago de la suma de P10 en concepto de imposicion municipal."cralaw virtua1aw library

On the same day, May 22, 1926, Tansioco paid the sum of P10 to the provincial treasurer of Rizal, the treasurer’s receipt
therefor stating that the sum was for the construction of "one house of strong mat. 1,500 sq. m."cralaw virtua1aw
library

The plaintiffs thereupon began clearing the site where the cockpit was to be built and a considerable portion of the
construction of the building was carried out before the 15th of June. On that date the municipal president wrote the
plaintiff a letter in which he stated that he had been informed by the police department that the cockpit in question was
not being built in the site indicated by Tansioco before the granting of the building permit, but that it is being
constructed within a distance of 1,500 meters from the hospital of the Philippine Islands Antituberculosis Society in
Santol in violation of Ordinance No. 8, series of 1912, as amended by Ordinance No. 15, series of 1926, and that,
therefore, it would be necessary to erect the building in some other place "if he (Tansioco) still desired to use the
building for cock-fighting." There is some dispute as to whether this letter reached Tansioco, but the matter is not of
sufficient importance to justify a discussion of the evidence relating thereto.

On June 18, three days later, a complaint was filed in the justice of the peace court by the chief of police against
Tansioco and others for the violation of the ordinances above-mentioned by placing the cockpit too close to the
Tuberculosis Hospital, and a warrant for Tansioco’s arrest was issued, but he was released upon giving a bond of P150.
As far as the record shows nothing further was done in that case, and the plaintiffs herein continued the construction of
the building. On June 30, 1926, two shareholders in the "Bighani" Company, Bangco and Rivera, brought an action in the
Court of First Instance of Manila and, under the pretense of protecting their own interests, prayed for an injunction, a
receivership, and a dissolution of the association on the ground that the cockpit was being constructed in violation of
the municipal ordinances. A preliminary injunction was issued, but in certiorari proceedings brought by the defendants
(G. R. No. 26280), 1 the Supreme Court by a four to seven vote set aside the preliminary injunction and prohibited the
appointment of a receiver, and the case died a natural death.

Upon the completion of the building and without having obtained a license or permit for carrying on the business of
cock-fighting therein, Tansioco, on July 14, 1926, paid to the Provincial Treasurer of Rizal the sum of P2,050 as privilege
tax for operating such cockpit during the quarter comprising the months of July, August, and September, 1926, and on
August 5, he filed with the provincial treasurer a bond in the sum of P8,200 as security for whatever amount of money
might become due the municipality of Caloocan by reason of the issuance of a license to establish the cockpit in
question. In the bond it is recited that on May 22, 1926, "the municipality of Caloocan, Province of Rizal, conceded to
Eugenio Tansioco the privileges of establishing and exploiting a cockpit in the sitio of Galas."cralaw virtua1aw library

On September 2, 1926, the plaintiffs herein, after fruitless efforts to obtain an amendment of Ordinance No. 15, brought
an action in the Court of First Instance against the herein defendants alleging that they had the required permission to
open and conduct that business of cock-fighting in the building in question; that they had complied with all the
provisions of law in regard thereto; that the defendants were acting in connivance with the owners of other cock- pits
established in Caloocan and had threatened, and were threatening, to prevent said plaintiffs from conducting said
business and to close the cockpit and to arrest any person found therein, which would cause the plaintiffs irreparable
injury. In conformity with the prayer of the complaint, the Court of First Instance issued a preliminary injunction
restraining the defendants from interfering in any way with the opening and operation of the cockpit, but shortly
afterwards, on motion of the defendants, another order was issued restraining the plaintiffs from opening and operating
the cockpit pending further orders of the court. The plaintiffs thereupon moved to definitely dismiss the case without
costs and to discharge the injunction issued in their behalf, and in conformity with their motion, the case was definitely
dismissed on September 10, 1926. The case was numbered civil case No. 30377 of the Court of First Instance of Manila.

Four days before case No. 30377 was dismissed, the municipal president of Caloocan received a letter from the
attorneys of the plaintiffs, stating that their clients did not believe that they needed any other permission than that
which had already been given to them to operate the cockpit in question, but nevertheless requesting that such license
or permit as in the opinion of the president might be necessary, be issued. In answer to this letter the president stated
that the cockpit was within the prohibition contained in Ordinance No. 15 and that for that reason the permit could not
be granted.

The present action was instituted on September 21, 1926, the complaint containing substantially the same allegations as
those set forth in the complaint in case No. 30377, and in conformity with the plaintiffs’ prayer, Judge George R. Harvey
issued a preliminary mandatory injunction ordering the defendants to issue to the plaintiffs such permit as might be
required to enable them to operate the cockpit in question, said permit to be held subject to the further orders of the
court. His Honor also enjoined the defendants from interfering with the management of the plaintiffs’ cockpit, or the
operation thereof, pending orders of the court. The defendants thereupon filed a petition for a writ of certiorari in this
court (G. R. No. 26641) 1 on the ground that Judge Harvey had exceeded his jurisdiction in issuing the mandatory
injunction. By resolution dated November 8, 1926, the court denied the petition saying:jgc:chanrobles.com.ph

"This court having heard the oral arguments of counsel, and considered their respective briefs, It is ordered that the
petition for a writ of certiorari shall be, and is hereby, denied, pending a final decision by the lower court on the merits,
but without prejudice to the legal rights of either party, with the suggestion that until such time as such decision is
rendered, that the lower court will not issue an order to the municipal council or the president of Caloocan to
specifically compel the actual issuance of the license in question."cralaw virtua1aw library

The case had been bitterly fought, the record is very voluminous, and much has been said which has little or no bearing
upon the matters at issue and which need not here be considered. We shall simply confine ourselves to a brief
discussion of the, in our opinion, essential and determinant points.

Section 2243 of the Administrative Code provides, among other things, that: "The municipal council shall have authority
to exercise the following discretionary powers:chanrob1es virtual 1aw library

x              x              x

"(i) To regulate cockpits, cock-fighting, and the keeping or training of fighting cocks, or prohibit either."cralaw virtua1aw
library

x              x              x
It may be noted that the provision quoted was taken from paragraph (j) of section 40 of the Municipal Code of 1901 with
slight modifications.

On January 21, 1906, the municipal council of Caloocan passed a "Reglamento de Galleras" of which articles 51 and 52
read as follows:jgc:chanrobles.com.ph

"ART. 51. Toda persona que solicitare licencia para establecer gallera o galleras dentro de la jurisdiccion de este
municipio, estara sujeta en su estricto sentido al articulo anterior y debera acompañar en la solicitud el plano o croquis
del edificio que se desee levantar con expresion detallada de sus dimensiones y de los materiales de que se construira el
edificio y el sitio donde se ha de levantar.

"ART. 52. Todos los edificios que se construyan con destino a juego de gallos o galleras que quepan mas de mil personas,
deberan tener harigues de madera de primer grupo de 10 por 10 pulgadas de grosor y una altura bien calculada bajo la
aprobacion del Distrito, quien a solicitud del Presidente Municipal, examinara el plano exhibido por el solicitante de la
construccion o por un practico en la materia nombrado por dicho Presidente Municipal, con la aprobacion del Consejo, y
la construccion sera tambien inspeccionada tal como se dispone en este articulo por si ofrezca peligro para el
publico."cralaw virtua1aw library

Municipal Ordinance No. 8, series of 1912, contains some additional provisions but did not repeal the articles above
quoted. Article 4 of that ordinance reads as follows:jgc:chanrobles.com.ph

"El Presidente Municipal queda por la presente facultado para expedir permisos para el establecimiento de galleras
dentro de la jurisdiccion de este municipio con arreglo a las disposiciones contenidas en esta ordenanza por periodo no
mayor de cuatro años."cralaw virtua1aw library

It will be observed that the article is not mandatory in its terms; the president is merely authorized to issue a permit for
cock-fighting, and it would seem that, in the absence of a special order from the municipal council, he is not bound to
issue such permit, but may exercise his sound discretion within the limits permitted by the municipal board. It must also
be taken into consideration that cock- fighting may often, to a considerable extent, affect public order and the moral
health of the ordinary police supervision. In these circumstances the courts would hardly be justified in interfering by
writs of mandamus with the exercise of the discretion of the municipal councils and the municipal presidents in regard
to the operation of cockpits, except perhaps in cases of gross abuse.

In the present case it is obvious that the plaintiffs cannot legally operate their cockpit without the corresponding license
or permit; the permit to erect the cockpit is not a license or permit to conduct cock-fights. Under the view most
favorable to the plaintiffs, the defendants cannot, as we have seen, be compelled by mandamus to issue the desired
license unless it is shown that they are guilty of gross abuse of discretion. Now, what abuse of discretion have we here?
The plaintiffs allege that there is a conspiracy among the defendants and certain other cockpit owners to create a
monopoly on cock-fighting in favor of the latter, but that allegation has not been satisfactorily proven. It is quite possible
that influence has been brought to bear on members of the municipal council, and there is reason to suspect that there
has been some discrimination in favor of the owners of the older cockpits within the limits of the municipality, but that
is not sufficient to justify the conclusion that such discrimination was the sole motive for the refusal of the president to
issue a license for the operation of the plaintiffs’ cockpit. On the contrary, there are several other and perfectly valid
grounds upon which the denial of the application for the license might have been based. It may, for instance, be pointed
out that the record shows that the plaintiffs, in constructing the cockpit, did not fully comply with the provisions of
articles 51 and 52 of the "Reglamento de Galleras" of 1906.

Another circumstance, in itself sufficient to justify the refusal to issue the license, is the close proximity of the cockpit to
the Santol Tuberculosis Sanatorium. At the distance of only 610 meters the noise from the cockpit, when in operation,
could hardly fail to annoy and disturb the patients in the sanatorium and to retard their recovery, and it is evident that
Ordinance No. 15, supra, was adopted with a view to the prevention of such conditions. It is true that the language of
the ordinance is somewhat obscure, but ambiguities are not uncommon in municipal ordinances, and it is often
necessary to construe them in accordance with their evident intent without regard to lack of nicety of expression and
punctuation. The intent of this ordinance is clear, and we do not think that the court below erred in construing it in
accordance therewith.
Under their ninth assignment of error the plaintiffs argue that the decision of this court in case G. R. No. 26280 has the
value of stare decisis in the present controversy. There is no merit in this contention. That case was a petition for a writ
of certiorari and the decision therein turned on the point that the action instituted by Bangco and Rivera in the Court of
First Instance of Manila was not brought in good faith. It has little or nothing to do with this case.

The appealed judgment is in accordance with the law and the facts and is hereby affirmed with the costs against the
appellants. So ordered.

Avanceña, C.J., Johnson, Street, Malcolm, Villamor, Romualdez and Villa-Real, JJ., concur.

G.R. No. L-8848            November 21, 1913

THE UNITED STATES, plaintiff-appllee,

vs.
WILLIAM C. HART, C. J. MILLER, and SERVILIANO NATIVIDAD, defendants-appellants.

Pedro Abad Santos, for appellants Hart and Natividad.

W. H. Booram, for appellant Miller.
Office of the Solicitor-General Harvey, for appellee.

TRENT, J.:

The appellants, Hart, Miller, and Natividad, were arraigned in the Court of First Instance of Pampanga on a charge of
vagrancy under the provisions of Act No. 519, found guilty, and were each sentenced to six months' imprisonment. Hart
and Miller were further sentenced to a fine of P200, and Natividad to a fine of P100. All appealed.

The evidence of the prosecution as to the defendant Hart shows that he pleaded guilty and was convicted on a gambling
charge about two or three weeks before his arrest on the vagrancy charge; that he had been conducting two gambling
games, one in his saloon and the other in another house, for a considerable length of time, the games running every
night. The defense showed that Hart and one Dunn operated a hotel and saloon at Angeles which did a business,
according to the bookkeeper, of P96,000 during the nineteen months preceding the trial; that Hart was also the sole
proprietor of a saloon in the barrio of Tacondo; that he raised imported hogs which he sold to the Army garrison at
Camp Stotsenberg, which business netted him during the preceding year about P4,000; that he was authorized to sell
several hundred hectares of land owned by one Carrillo in Tacondo; that he administered, under power of attorney, the
same property; and that he furnished a building for and paid the teacher of the first public school in Tacondo, said
school being under Government supervision.

The evidence of the prosecution as to Miller was that he had the reputation of being a gambler; that he pleaded guilty
and was fined for participating in a gambling game about two weeks before his arrest on the present charge of vagrancy;
and that he was seen in houses of prostitution and in a public dance hall in Tacondo on various occasions. The defense
showed without contradiction that Miller had been discharged from the Army about a year previously; that during his
term of enlistment he had been made a sergeant; that he received rating as "excellent" on being discharged; that since
his discharge he had been engaged in the tailoring business near Camp Stotsenberg under articles of partnership with
one Burckerd, Miller having contributed P1,000 to the partnership; that the business netted each partner about P300
per month; that Miller attended to business in an efficient manner every day; and that his work was first class.

The evidence of the prosecution as to Natividad was that he had gambled nearly every night for a considerable time
prior to his arrest on the charge of vagrancy, in the saloon of one Raymundo, as well as in Hart's saloon; that Natividad
sometimes acted as banker; and that he had pleaded guilty to a charge of gambling and had been sentenced to pay a
fine therefor about two weeks before his arrest on the vagrancy charge. The defense showed that Natividad was a tailor,
married, and had a house of his own; that he made good clothes, and earned from P80 to P100 per month, which was
sufficient to support his family.

From this evidence it will be noted that each of the defendants was earning a living at a lawful trade or business, quite
sufficient to support himself in comfort, and that the evidence which the prosecution must rely upon for a conviction
consists of their having spent their evenings in regularly licensed saloons, participating in gambling games which are
expressly made unlawful by the Gambling Act, No. 1757, and that Miller frequented a dance hall and houses of
prostitution.

Section 1 of Act No. 519 is divided into seven clauses, separated by semicolons. Each clause enumerates a certain class
of persons who, within the meaning of this statute, are to be considered as vagrants. For the purposes of this discussion,
we quote this section below, and number each of these seven clauses.

(1) Every person having no apparent means of subsistence, who has the physical ability to work, and who neglects to
apply himself or herself to some lawful calling; (2) every person found loitering about saloons or dram shops or gambling
houses, or tramping or straying through the country without visible means of support; (3) every person known to be a
pickpocket, thief, burglar, ladrone, either by his own confession or by his having been convicted of either of said
offenses, and having no visible or lawful means of support when found loitering about any gambling house, cockpit, or in
any outlying barrio of a pueblo; (4) every idle or dissolute person or associate of known thieves or ladrones who
wanders about the country at unusual hours of the night; (5) every idle peron who lodges in any barn, shed, outhouse,
vessel, or place other than such as is kept for lodging purposes, without the permission of the owner or person entitled
to the possession thereof; (6) every lewd or dissolute person who lives in and about houses of ill fame; (7) every
common prostitute and common drunkard, is a vagrant.

It is insisted by the Attorney-General that as visible means of support would not be a bar to a conviction under any one
of the last four clauses of this act, it was not the intention of the Legislature to limit the crime of vagrancy to those
having no visible means of support. Relying upon the second clause to sustain the guilt of the defendants, the Attorney-
General then proceeds to argue that "visible means of support" as used in that clause does not apply to "every person
found loitering about saloons or dram shops or gambling houses," but is confined entirely to "or tramping or straying
through the country." It is insisted that had it been intended for "without visible means of support" to qualify the first
part of the clause, either the comma after gambling houses  would have been ommitted, or else a comma
after country  would have been inserted.

When the meaning of a legislative enactment is in question, it is the duty of the courts to ascertain, if possible, the true
legislative intention, and adopt that construction of the statute which will give it effect. The construction finally adopted
should be based upon something more substantial than the mere punctuation found in the printed Act. If the
punctuation of the statute gives it a meaning which is reasonable and in apparent accord with the legislative will, it may
be used as an additional argument for adopting the literal meaning of the words of the statute as thus punctuated. But
an argument based upon punctuation alone is not conclusive, and the courts will not hesitate to change the punctuation
when necessary, to give to the Act the effect intended by the Legislature, disregarding superfluous or incorrect
punctuation marks, and inserting others where necessary.

The Attorney-General has based his argument upon the proposition that neither visible means of support nor a lawful
calling is a sufficient defense under the last four paragraphs of the section; hence, not being universally a defense to a
charge of vagrancy, they should not be allowed except where the Legislature has so provided. He then proceeds to
show, by a "mere grammatical criticism" of the second paragraph, that the Legislature did not intend to allow visible
means of support or a lawful calling to block a prosecution for vagrancy founded on the charge that the defendant was
found loitering around saloons, dram shops, and gambling houses.

A most important step in reasoning, necessary to make it sound, is to ascertain the consequences flowing from such a
construction of the law. What is loitering? The dictionaries say it is idling or wasting one's time. The time spent in
saloons, dram shops, and gambling houses is seldom anything but that. So that under the proposed construction,
practically all who frequent such places commit a crime in so doing, for which they are liable to punishment under the
Vagrancy Law. We cannot believe that it was the intention of the Legislature to penalize what, in the case of saloons and
dram shops, is under the law's protection. If it be urged that what is true of saloons and dram shops is not true of
gambling houses in this respect, we encounter the wording of the law, which makes no distinction whatever between
loitering around saloons and dram shops, and loitering around gambling houses.

The offense of vagrancy as defined in Act No. 519 is the Anglo-Saxon method of dealing with the habitually idle and
harmful parasites of society. While the statutes of the various States of the American Union differ greatly as to
the classification  of such persons, their scope  is substantially the same. Of those statutes we have had an opportunity to
examine, but two or three contain a provision similar to the second paragraph of Act No. 519. (Mo. Ann. Stat., sec. 2228;
N. D. Rev. Codes, sec. 8952; N. M. Comp. Laws 1897, sec. 1314.) That the absence of visible means of support or a lawful
calling is necessary under these statutes to a conviction for loitering around saloons, dram shops, and gambling houses is
not even negatived by the punctuation employed. In the State of Tennessee, however, we find an exact counterpart for
paragraph 2 of section 1 of our own Act (Code of Tenn., sec. 3023), with the same punctuation:lawph!1.net

. . . or of any person to be found loitering about saloons or dram shops, gambling houses, or houses of ill fame, or
tramping or strolling through the country without any visible means of support.

A further thought suggest itself in connection with the punctuation of the paragraph in question. The section, as stated
above, is divided into seven clauses, separated by semicolons. To say that two classes of vagrants are defined in
paragraph 2, as to one of which visible means of support or a lawful calling is not a good defense, and as to the other of
which such a defense is sufficient, would imply a lack of logical classification on the part of the legislature of the various
classes of vagrants. This we are not inclined to do.

In the case at bar, all three of the defendants were earning a living by legitimate methods in a degree of comfort higher
that the average. Their sole offense was gambling, which the legislature deemed advisable to make the subject of a
penal law. The games in which they participated were apparently played openly, in a licensed public saloon, where the
officers of the law could have entered as easily as did the patrons. It is believed that Act No. 1775 is adequate, if
enforced, to supress the gambling proclivities of any person making a good living at a lawful trade or business.

For these reasons, the defendants are acquitted, with the costs de oficio.

EN BANC

[G.R. No. 926. December 9, 1902. ]

THE UNITED STATES, Complainant-Appellee, v. PAULO CATEQUISTA, Defendant-Appellant.

Carlos Ledesma, for Appellant.

Solicitor-General Araneta, for Appellee.

SYLLABUS

1. CRIMINAL LAW; ASSAULT; PENALTIES. — The alternative penalties provided by article 418 of the
Penal Code for simple assault are (1) arresto mayor and (2) destierro and a fine; it is error to impose
both imprisonment and fine.

2. ID.; ID.; DAMAGES. — In a prosecution for assault whereby the victim was incapacitated for work
the trial court should award compensatory damages in his judgment rendered in the criminal case.
The defendant was convicted by the court below of the offense of lesiones menos graves under article 418 of the Code.
We are of opinion that the evidence was sufficient to warrant the conviction.

The first paragraph of article cited fixes the general rule for the punishment of the offense, which is to be by "arresto
mayor, or destierro and a fine of from 325 to 3,250 pesetas in the discretion of the court." The second paragraph makes
an exception of cases where the injury is inflicted "with manifest intent of outrage or under humiliating circumstances;"
in these cases the punishment is to be by arresto mayor and a fine of from 325 to 3,250 pesetas. In the present case the
conviction was under the first paragraph, and the evidence would not have warranted a conviction under the second.
The penalty imposed was two months and one day of arresto mayor and a fine of 325 pesetas.

The two alternative penalties which may be imposed under the first paragraph are (1) arresto mayor and (2) destierro
and a fine. The fine can not be imposed as a part of the first alternative penalty. Such is the construction of the clause
indicated by the punctuation, which in the case of a carefully prepared Code is entitled to considerable weight, and such
is the construction which has been placed upon the same clause in the corresponding article of the Code of Spain by the
highest judicial authority of that country, judgment in cassation of January 12, 1875. See also to the same effect 3 Viada,
Commentaries on the Penal Code of Spain, 86; 4 Groizard, Commentaries on the Penal Code of Spain, 565. The court
erred, therefore, in the present case in imposing a fine in addition to the imprisonment.

The court also erred in not determining in the judgment the civil liability of the defendant for the daños and perjuicios
which resulted from the criminal act. Such civil liability is a necessary consequence of criminal responsibility (Penal Code,
article 17), and is to be declared and enforced in the criminal proceeding except where the injured party reserves his
right to avail himself of it in a distinct civil action. (Code of Criminal Procedure of Spain, article 112; Provisional Law for
the Application of the Penal Code in the Philippines, article 51, No. 4.) No such waiver or reservation is disclosed by the
record here.

The judgment of the court below must therefore be modified as respects the penalty imposed by eliminating the fine;
and there should be added a declaration that the defendant is entitled to indemnification in the sum of 5 pesos for the
perjuicios which resulted from his inability to work for ten days in consequence of the assault, together with such sum as
he may be able to prove that he has expended for medical attendance.

As thus modified the judgment will be affirmed, and case remanded to the court below for the execution thereof. Costs
will be de oficio. So ordered.

Arellano, C.J., Torres, Cooper, Smith, Mapa and Willard, JJ., concur.

FIRST DIVISION

[G.R. No. 23923. March 23, 1926. ]

ANTONIO MA. BARRETTO ET AL., Plaintiffs-Appellants, v. AUGUSTO H. TUASON ET AL., Defendants-Appellants.

Antonio Sanz, for Plaintiffs-Appellants.

Araneta & Zaragoza and Fisher, DeWitt, Perkins & Brady, for Defendants-Appellants.

Eusebio Orense for Benito, Consuelo and Rita by surname Legarda. Ernesto Zaragoza for Emilia Tuason Et. Al.

Feria & La O for the intervenors Estanislawa Arenas Et. Al.

SYLLABUS

1. "MAYORAZGOS;" THEIR NATURE; USUFRUCTUARY CHARACTER OF THE FIRST-BORN POSSESSOR. — The first-born
possessor of a mayorazgo, having the enjoyment and possession of the entailed estate subject to the ownership of the
descendants of the founder in all their indefinite succession, and being strictly forbidden to sell, alienate or encumber
the same in any manner whatsoever, is only a usufructuary of the said estate. (Decision of the Supreme Court of Spain of
June 6, 1872.)

2. ID.; ID.; A "MAYORAZGO" IS A "FIDEICOMISO." — The essential elements of a fideicomuso exist in a mayorazgo in that
it is a fiduciary charge made to the first-born, the usufructuary possessor, to preserve the entailed properties in the
family and to deliver them at the proper time to the succeeding first-born, who shall possess and enjoy them. And while
a mayorazgo should not be confused with a fideicomiso, the differences between them are not such as to make them
incompatible with one another. The fideicomiso is the genus and the mayorazgo is the species. Not every fideicomiso is
a mayorazgo, but every mayorazgo is a fideicomiso.

3. ID.; ID.; SPECIAL "FIDEICOMISO" INSTITUTED IN THE FOUNDATION IN QUESTION SPECIFICALLY TERMED FAMILY
TRUST." — A special fideicomiso was instituted in the foundation in question consisting of a mandate to the first-born
possessor of the entailed properties to distribute one-fifth of the net revenue of the properties each year among the
eight younger children of the founder and other specified relatives. This special charge, distinct, but a part of the
mayorazgo under consideration, is specifically termed a family trust, as an annual distribution of funds among the
relatives of the founder is involved.

4. ID.; ID.; INTERESTED PARTIES IN THIS MAYORAZGO AS A ’ FIDEICOMISO." — In the mayorazgo itself and from the point
of view of its nature as a trust, the trustor is the founder; the trustee is successively each first-born possessor of the
entail from the time he possesses it and while he possesses it; the beneficiary or cestui que trust, so far as the partial
enjoyment and possession of the properties of the entail are concerned, is the first- born successor called to possess the
entail and prior to the commencement of his possession, for as soon as his possession commences he becomes the
trustee and the following first-born becomes the beneficiary. As to the naked ownership of the entailed properties, the
beneficiaries or fideicomisarios are the descendants of the founder in their indefinite succession.
5. ID.; ID.; INTERESTED PARTIES IN THE FAMILY TRUST INSTITUTED WITHIN THIS "MAYORAZGO." — In the family trust
upon one-fifth of the revenue instituted within this mayorazgo, the trustor is the founder himself; the fiduciary is also
successively each first-born possessor of the entail from the time he possesses it and while he possesses it; and the
beneficiaries or cestui que trustent are the eight younger children of the founder and other relatives designated in the
deed of foundation.

6. NOMENCLATURE ADOPTED IN THIS DECISION. — The nomenclature of the Civil Code in force (arts. 783, 784) is here
adopted, in which the fideicomisario is the beneficiary (cestui que trust), as distinguished from the meaning in which this
word fideicomisario has been used in the Spanish translation of sections 582-593 and 778 of the Code of Civil Procedure,
in which the idea is conveyed that the fideicomisario is the person charged with the trust — that is, the "trustee" whom
we here designate as the fiduciario.

7. DISENTAILING LAW OF OCTOBER 11, 1820; ITS APPLICATION TO THIS "MAYORAZGO." — Having reached the
conclusion that the annual distribution of one-fifth of the revenue among the relatives of the founder constitutes a
family trust, the application of article 4 of the Disentailing Law of October 11, 1820 is inevitable, inasmuch as it expressly
and inequivocally refers to "family trusts, the revenues of which are to be distributed among the relatives of the
founder" and provides for the appraisal and distribution of the entailed properties among the recipients "in proportion
to that which they are receiving and with the intervention of all of them, and each may freely dispose of one-half of the
property allotted to him, reserving the other half to the immediate successor in order that he may do likewise,
etc."cralaw virtua1aw library

8. CONDUCT OF INTERESTED PARTIES IN THIS "MAYORAZGO" IN CONNECTION WITH THE DISENTAILING LAW. —
Notwithstanding the fact that the Disentailing Law was enforced in these Islands, the parties in this mayorazgo
maintained it in full force from March 1, 1864, when the said law took effect in the Philippine Islands, at least up to the
end of the year 1922, a little over a year before the commencement of the present action.

9. EFFECTS OF THE DISENTAILING LAW UPON THIS "MAYORAZGO" AND CONDUCT OF INTERESTED PARTIES. — Among
the effects produced upon this mayorazgo by the Disentailing Law, on the one hand, and the conduct of the interested
parties, on the other, there is, in the first place, the abolishment of the trust of the naked ownership in favor of the
descendants of the founder in an indefinite succession; and, in the second, the conversion of the family trust on one-
fifth of the revenue into a trust of the ownership of one-fifth of all the properties in favor of the younger children and
other relatives of the founder.

10. ALLEGED LEGAL BARS; REGISTRATION OF PROPERTY UNDER ACT No. 496. — If, as we have found and decided, the
successive possessors of this mayorazgo were, and have been, mere trustees of the said properties, holding them in
trust for the benefit of the cestui que trustent, some of whom, according to article 4 of the Disentailing Law, are the
recipients of the fifth of the revenue, and their descendants, the registration of the title to said properties under Act No.
496 in the name of the trustees in possession thereof, must be deemed to have been effected for the benefit of the
cestui que trustent, some of whom are the present plaintiffs. The doctrine established by this court in the case of
Severino v. Severino (44 Phil., 343), is applicable to this feature of the case. This rule is entirely independent of the fact
whether or not any fraud was committed in said proceeding, which the plaintiffs attempted to establish but was not
successfully proven. (Gilbert v. IIewetson, 79 Minn., 326, cited with approval in said case of Severino v. Severino.)

11. PRESCRIPTION. — The fact that the plaintiffs did not make use of their right since March 1, 1864, is no ground for
holding that their action has prescribed; first, because up to the year 1922 the defendants had expressly recognized said
right in their books of accounts; had purchased shares in the mayorazgo in the years 1906 and 1916, respectively, and up
to the year 1922 had made payments on account of the fifth of the revenue, which acts prevent the operation of
prescription (sec. 50, Code of Civ. Proc.); and second, because this is a subsisting trust in which the trustee’s possession
is not under claim of ownership, nor adverse to the plaintiffs, who are the cestui que trustent. This was impliedly held in
the case of the Government of the Philippine Islands v. Abadilla (46 Phil., 642).

12. ID.; PLAINTIFFS’ INACTION. — The fact that the plaintiffs did not file any claim in the proceedings for the settlement
of the estate of the deceased Jose Tuason y de la Paz is also no bar to the present action, because the properties here in
question were held in trust by the deceased who could not legally transmit them to his heirs. And even supposing that
the latter had possessed said properties adversely to the plaintiffs, said possession cannot be held to have commenced
to run before July 19, 1919, when the lower court approved the tentative partition of the properties of said estate, as
from that date up to the filing of this complaint, only a little over four years have elapsed, an insufficient time for the
acquisitive prescription of real property.

13. PERSONS ENTITLED TO REMEDY; TERM "NIETOS" (GRANDCHILDREN); ITS BROAD MEANING. — The term "nieto"
(grandson) which is derived from the Latin "nepos" is used in the latter language in a broad acceptation, as will be seen
in passages from Cicero and Virgil, the meaning of which coincided with the authentic meaning given to this word in Title
19, Book 2 of Justulian’s Institutes, which is . . . veluti filius filiave, nepos neptisve ex filio, etc.;" and in order to convey
the meaning that the grandson or granddaughter (nepos neptisve) was "a son or a daughter of a son," it was necessary
to add the explanatory phrase "ex filio" (of the son). This broad legal acceptation was carried into the Spanish language
when the words "nepos" and "nepotis" were hispanized by being transformed into the word "nieto" (grandson), and
therefore Alcubilla, in defining the word "nieto," among other things, says: "The term is also used by extension to
include a descendant in a given line to the third, fourth and successive generations."cralaw virtua1aw library

14. ID.; ID.; DEED OF FOUNDATION; INTENTION OF FOUNDER. — Considering the terms of the deed establishing the
mayorazgos it was the founder’s intention to give it a broad meaning. Consequently, the principle of law enunciated in
Rule 28, Title 34, Partida 7 should apply, which says: "Privilegia recipiunt largam interpretationem voluntati consonam
concedentis" (Privileges are to be interpreted with liberality in accordance with the will of him who grants them).

15. ID.; ID.; INTERPRETATION BY DEFENDANTS. — This broad meaning is also the one given by the defendants in
recognizing the right of the codescendants of the plaintiffs and some of the latter, farther removed than the
grandchildren of the younger children of the founder, to participate in the fifth of the revenue.

16. ID.; PLAINTIFFS AS DESCENDANTS IN DIRECT LINE OF YOUNGER CHILDREN, EVEN IF NOT GRANDCHILDREN
(CHILDREN OF CHILDREN), ARE HEIRS TO THE FIFTH OF THE PROPERTIES OF THIS "MAYORAZGO." — At all events, the
plaintiffs are descendants in direct line of four of the eight younger children and therefore are heirs of those who, under
article 4 of the Disentailing Law, as recipients of the fifth of the revenue and as direct immediate successors were, on
March 1, 1864, granted the right of ownership to the fifth of the properties in question.

17. ID.; AMOUNT OF RESPECTIVE PORTIONS; ONE-HALF OF THE FIFTH BEING EXCLUSIVELY THE PROPERTY OF THE
DESCENDANTS OF THE FOUR YOUNGER CHILDREN. — The portion corresponding to each younger child was preserved
and transmitted from generation to generation within the proper stirps, for such was the will of the founder who
decreed that one-eighth part of the fifth of the revenue be delivered to each younger child and his descendants. Of the
eight younger children only four had succession, the portions pertaining to them and their descendants and which,
before the disentailment, constituted only one-half of the fifth of the revenue, and thereafter a fifth of the properties
themselves, are the portions subject to the aforesaid tentative partition among the four stirps.

18. ID.; ID.; ONE-HALF OF THE FIFTH TO BE DISTRIBUTED AMONG PLAINTIFFS AND SOME DEFENDANTS. — The
distribution of the other half is made in obedience to a distinct plan because the founder, foreseeing the contingency of
accretion of the portions of his younger children, who may have died without issue, in favor of the other descendants,
did not prescribe a quota for each stirps. Wherefore, this half for accretion left by the four younger children who had on
succession must be distributed among all the descendants of the founder in general, bearing in mind only the relative
degree of relationship to the founder.

DECISION

ROMUALDEZ, J.  :

More than a century and a quarter ago, in the ancient town of Binondo, now one of the districts of the City of Manila,
Don Antonio Tuason founded a mayorazgo of strict agnation upon the third and the remainder of the fifth of all his
properties, by an instrument executed to that end, duly approved by the King of Spain in a cedula issued for that
purpose.

It was therein provided, among other things, that the revenue of the properties so entailed, and all such others as might
be annexed thereto, should be distributed in the proportion of four-fifths for the first born, and his successors, and one-
fifth for the other eight children and other descendants of the founder, mentioned in the instrument.

The plaintiffs allege that this disposition constituted a family trust (fideicomiso familiar) which thereafter became subject
to the provisions of article 4 of the Statute of Disentailment of. October 11, 1820; that the defendants, and their
predecessors, all of whom descend from the lines of the first born, have so considered it and have been paying, up to
the year 1921, sums of money on account of the fifth of the revenue of the mayorazgo; that the defendants purchased
in 1905 and 1915 the rights of some of the beneficiaries of the said trust; that in the payments of the fifth of the revenue
mentioned, fraud was committed; that the plaintiffs, who are part of the descendants of four of the eight children who
were the beneficiaries of the fifth of the revenue, were without a copy of the instrument of foundation, the protocol of
the notary before whom it was acknowledged having disappeared, and that for this reason they were unaware of their
rights and were unable to discover the fraud until the year 1922 in which the original of the said Royal Cedula was
discovered in the archives of Seville, Spain; that the defendants fraudulently obtained a Torrens title in their favor upon
the entailed real estate; that there are now no surviving descendants of four of the eight children of the founder who
are beneficiaries of the fifth of the revenue. Plaintiffs conclude by praying that defendants be required to pay them, as
damages, P500,000, that is, one-half of the family trust administered by the latter, and that this liability be enforced
against the properties described in paragraph 31 of the complaint; that defendants render an account of the receipts,
expenses and profits of the said properties from February 4, 1874, when they took possession of them, until December
31, 1921, and from January 1, 1922, until judgment is rendered; that the defendants, jointly and severally, pay them
their share of the liquidation of the product of said properties, after deducting the amounts received on account by
plaintiffs; that the defendants pay legal interest upon such sums as may be adjudicated, computed from the filing of the
complaint until the complete payment of the amounts therein demanded.

The defendants interposed several defenses, in the first of which they alleged that the Royal Cedula upon which the
foundation rests and the Statutes of Disentailment are contrary to plaintiffs’ contentions. In their second defense they
allege possession of a Torrens title to the property in question, free from charges or encumbrances. The third defense is
that of the prescription of the action here brought. As a fourth defense the defendants Dona Paz Tuason de Gonzalez,
Dona Consuelo Tuason de Quimson, Don Juan Tuason and Dona Albina Tuason contend that they inherited the share of
their father Don Jose Maria Tuason in the properties constituting the endowment of the mayorazgo; that proceedings
were had for the administration of the testate estate of the said deceased and a committee on claims appointed which
performed its duty, but that no claim whatever was presented by any of the plaintiffs; that the partition of the
hereditary properties was decreed and the proceedings in the estate declared to be finally concluded. By way of
counterclaim the defendants ask that plaintiffs return the pensions received after the year 1917 on account of the
revenue of the properties which constitute the mayorazgo, as the payments of such pensions were improper.

The judgment of the Court of First Instance of Manila before which the case was tried dismisses the complaint and the
counterclaim, without costs.

Both parties appealed. The plaintiffs contend that the trial court erred —

(1) In holding that before the disentailment the possessors of entails were not mere usufructuaries of the inalienable
properties which constituted the entail.

(2) In weighing the evidence and in deciding that the provision made by the founder, Don Antonio Tuason, in favor of his
second-born children and their successors is not a family trust.

(3) In confusing the charges and encumbrances referred to in article 7 of the Statute of Disentailment with the
allowances for support and pensions mentioned in article 10 of the same statute.

(4) In failing to give effect to the allegations and evidence of fraud adduced by plaintiffs with respect to the performance
of the trust by defendants.

(5) In holding that the defendants were entitled to obtain, as they did obtain, a Torrens title upon the real estate in
question, and that the allegation of plaintiffs that they obtained it by fraud is not supported by the evidence.

(6) In holding that even admitting that the plaintiffs are within the general denomination of descendants of the founder
of the mayorazgo they are not entitled to receive any part of the revenue, it not having been demonstrated that they
are poor.

(7) In denying the new trial prayed for by plaintiffs.

The defendants assign as error the action of the court in dismissing their counterclaim.

The principal undisputed facts which must be stated as a basis for disposing of the questions presented are as
follows:chanrob1es virtual 1aw library

The mayorazgo now under consideration was created February 22, 1794.

On the 4th of June of the same year, 1794, the founder, Don Antonio Tuason, died in Manila.

On August 20, 1795, the mayorazgo was approved by Royal Cedula.

On October 11, 1820, the Statute of Civil Disentailments was promulgated in Spain.

On October 31, 1863, a Royal Decree was issued extending to the overseas provinces the statutes concerning civil
disentailments and declaring them to be in force in such provinces from March 1, 1864.

On February 1, 1874, Don Jose Severo Tuason, at that time the possessor of the entail, executed a will, respecting the
mayorazgo and transmitting it as such to his first-born son, Don Jose Victoriano Tuason, and died the third day of the
same month and year.

On February 4, 1874, an inventory was prepared of the properties left by Don Jose Severo Tuason, among which the
mayorazgo was mentioned.

On January 31, 1875, a liquidation and partition of the said properties was made, and the properties of the mayorazgo
were preserved and respected as entailed.

On January 25, 1878, Don Jose Victoriano Tuason, the first-born son of the testator, who was at that time thirteen years
of age, died in Metz (formerly Germany, now France).

On August 7, 1896, the liquidation and partition of the property was registered.

On October 9, 1905, Don Jose Rocha y Ruiz sold to the heirs of Don Jose Severo Tuason his share of the fifth of the
revenue of the properties of the mayorazgo.

On November 16, 1916, Dona Remedios Aragon y Rocha also sold to the heirs of Don Jose Severo Tuason her share of
the fifth of the said revenues.

The books of the defendants show the receipts and disbursements relating to the real estate of the mayorazgo (Exhibit
2) from January, 1904, until December, 1922. In each year items appear under the heading, "Participations in one-fifth of
the products." In the year 1905 an entry appears "Purchase of rights as to one-fifth of the products;" in the year 1906,
"Purchases of rights to one-fifth of the products;" in the year 1910, "Purchase of rights to one-fifth of the products," and
in the year 1911 "Notary’s fees for deed of assignment with respect to one- fifth of the products;" in the year 1912,
"Notary’s fees for deeds of assignment as to one-fifth of the product."cralaw virtua1aw library

In the course of the trial the parties agreed upon certain facts by means of the following
stipulation:jgc:chanrobles.com.ph

"The parties to the above entitled cause appear before this court and agree that the court may consider as admitted,
without the necessity of evidence, the following facts:jgc:chanrobles.com.ph

"I. The facts alleged in paragraphs I, II, III, IV, VII, VIII, IX, X, XI, XII, XIII, XIV, XV, XVI, XVII, XVIII, XIX, XX, XXI, XXII, XXIII,
XXIV, XXV, XXVI, XXVII, XXVIII, XXIX, XXX, XXXI and XXXII of the amended complaint, dated November 7, 1923.

"II. The facts alleged in paragraphs 3 and 4 of the first special defense in the answer to the amended complaint, dated
April 16, 1924.

"III. That when Don Jose Severo Tuason died on February 3, 1874, all the properties which constituted the mayorazgo
passed to his first-born son, Don Jose Victoriano Tuason, in accordance with his will, a certified copy of which is
attached, marked as Exhibit 1.

"IV. The facts alleged in paragraphs 6, 7, 8, 9, 10 and 11, with the exception of the allegation contained in paragraphs 9
and 10 that the properties which constituted the mayorazgo passed freely to Don Jose Victoriano Tuason, which is not
accepted by counsel for plaintiffs, as this is the question of law raised by the complaint.

"V. That none of the plaintiffs received any pensions whatever as a charge against the revenue or products of the
properties which constituted the mayorazgo at the time when the same passed into the hands of Don Jose Victoriano
Tuason; and with the exception of those who are mentioned in paragraph 2 of the counterclaim, none of them, nor their
ancestors, received any pensions whatever as a charge upon the revenues or products of the properties which
constituted the mayorazgo during the ten years prior to the date of the filing of the original complaint.

"VI. The facts alleged in paragraph 2 of the second special defense of said answer to the amended complaint.

"VII. The facts alleged in paragraphs 1, 2, 3, and 4 of the fourth special defense of the defendants Paz Tuason de
Gonzalez, Consuelo Tuason de Quimson, Don Juan Tuason and Albina Tuason, contained in said answer to the amended
complaint.

VIII. All the facts alleged in paragraph 2 of the counterclaim contained in the said answer to the amended complaint.

"IX. That the present assessed value of the Hacienda Santa Mesa-Diliman is three million five hundred fifty thousand six
hundred forty-six pesos (P3,550,646); that of the Hacienda de Mariquina one million five hundred seven thousand one
hundred forty pesos (P1,507,140); that of the lots and buildings on Calle Rosario five hundred forty two thousand three
hundred eighty-two pesos (P542,382); and solely for the purpose of the decision in this case it is agreed that their real
value as between a purchaser desiring to buy and a vendor willing to sell said properties is the same as their assessed
value.

"X. That the revenue and expenses of the properties on Calle Rosario are those shown in the statement attached,
marked as Exhibit 2, and that said statement is taken from the books of the defendants.

"XI. That the receipts and expenditures of the Haciendas Santa Mesa-Diliman and Mariquina are also those which appear
in the statement attached, marked as Exhibit 3, which was also taken from the books of the defendants.

"XII. That the stipulation contained in the preceding paragraphs shall not prevent the plaintiffs from impugning, as
improperly charged, any of the items appearing in said two statements.

"XIII. That in the record of the testamentary estate of the late Don Juan Jose Tuason, case No. 16031, above-mentioned,
a document appears, a copy of which is annexed, marked as Exhibit 4.

"XIV. A copy of the deed of partition of the property of Don Jose Severo Tuason is attached and marked Exhibit 5.

"XV. That the plaintiffs, who, as admitted in paragraph 2 of the cross-complaint, collected from the defendants the sums
mentioned in said paragraph, did so upon receipts prepared by Don Augusto Tuason, acting for himself and his brothers.
and worded as follows:jgc:chanrobles.com.ph

"‘Received from Don Augusto Tuason the sum of . . . . the part corresponding to me of the fifth of the products of the
properties of the Tuason mayorazgo corresponding to the current year.’

"XVI. That Don Jose Rocha y Ruiz Delgado, as the first party, and the brothers and sister, Doila Teresa, Don Juan, Don
Mariano, Don Demetrio and Don Augusto Tuason, as the second parties, executed a contract of assignment of rights
marked Exhibit 6; and likewise Dona Remedios Aragon y Rocha and the said brothers and sister entered into the contract
of assignment of rights marked Exhibit 7.

"Manila, P. I., August 30, 1924.

"ANTONIO SANZ and JOSE GALAN BLANCO

"By (Sgd.) ANTONIO SANZ

"Attorneys for Plaintiffs

"ARANETA & ZARAGOZA

"By (Sgd.) GREGORIO ARANETA

"Attorneys for Defendants"

The various questions raised by the parties turn upon these fundamental points, namely, (a) the nature of the
mayorazgo; (b) the Statute of Disentailment and the conduct of the interested parties and their effects; (c) defenses to
this action alleged by defendants; and (d) the persons entitled to the relief prayed for.

THE NATURE OF THIS "MAYORAZGO"

Its literal text, together with that of the Royal Cedula by which it was approved and confirmed, is as
follows:jgc:chanrobles.com.ph

"Don Carlos, by the grace of God King of Castile, etc., whereas on behalf of you, Don Vicente Dolores Tuason, Captain of
Infantry of the Royal Armies, Lieutenant-Colonel of the Regiment of the Prince Royal, of the City of Manila, a resident of
the said city, Testamentary Executor of your deceased father, Don Antonio Tuason, Lieutenant-Colonel of the said Royal
Armies and Colonel attached to the above-mentioned regiment, it was made known to me, on the 13th of April of the
present year, that your said deceased father, on the 25th of February of last year, founded a mayorazgo (estate tail) of
strict agnation, upon one third and the remainder of the fifth part of all his property, estate and effects which at that
time were of the value of one hundred and thirty-five thousand pesos, appointing you in the first place to enjoy the
same as his first-born, and after you to take your place your eldest son and at his death to succeed him his eldest son
and so on, adding that although the wishes of Don Antonio Tuason in regard to the accomplishment of said entail in all
its parts were very keen, he could not effectuate them on account of his death, but that the duty of carrying them into
effect had been imposed upon you not only on account of your appointment as Executor of his Estate, but also as being
the first one selected to possess the mayorazgo, with which object, you and your seven brothers received during the
lifetime of your father your respective paternal legitimes; that your said father made explicit designation of the real
estate that was to be entailed with the advertence that if any amount should be lacking to complete the full value of the
third and the remainder of the fifth, it should be delivered in cash to be invested in real estate specially in lands; that
nothing more remained to be done, according to the attached verified copy of the instrument establishing the said entail
which copied literally is as follows:jgc:chanrobles.com.ph

"‘I, Don Antonio Tuason, a resident of this Pueblo of Binondo, beyond the walls of the City of Manila, in the Philippine
Islands, Lieutenant-Colonel of Infantry of the Royal Armies of H. M. the King, and Colonel attached to the Regiment of
Militia of the Prince Royal; being in good health according to my understanding and in the full use of my senses and
mental faculties, desiring on the one hand to recompense the good services rendered to my person and my house by my
eldest living son Don Vicente Dolores Tuason, Captain of the Royal Armies, and Lieutenant-Colonel of the above-
mentioned Regiment, and desiring on the other hand to insure in part the permanence of my estate, without
diminishing the legitimes of my other children, so that they may fully enjoy them, and taking into consideration the
evanescence of the great family fortunes which have existed in these Islands on account of their not having been
entailed, I have determined to establish an entail or mayorazgo of the third part and the remnant of the fifth part of all
my property, as I have stated in my last will and testament and in my codicils, and with this object in view, making use of
the right that has been by law conferred upon me, I execute this deed with the following clauses and conditions subject
in everything to whatever the Royal Audiencia may determine and H. M. may decide, to all of which I now and forever
assent.

"‘First. Having taken stock and inventory of all the property of which I am now possessed, in cash, real estate, jewelry
and other things, I found myself to be the possessor of an estate of the value of one hundred and thirty- five thousand
pesos, which after having deducted the third and the fifth, left me a remainder of seventy-two thousand pesos, which I
divided amongst my eight children, there corresponding to each one of them the sum of nine thousand pesos, which
sum was actually delivered to each and every one of them, as shown by documents which I have in my possession; and
the third and the remnant of the fifth, I hereby devote to the aforesaid entail, and if by accidents of time the total value
of my property should increase or diminish, so also shall the said capital of this entail, which never must be allowed to
exceed the total value of the said third and remainder of the fifth.

"‘Item.

"‘That the possessor of this entail or mayorazgo or betterment must take an oath before the Court of Justice of the
territory, to observe and perform all the clauses and conditions contained herein, and if he should fail to observe and
perform any of them, either totally or in part, he shall lose his right to the mayorazgo, which shall pass to the next
successor.

"‘Item.

"‘That he must keep in his possession the original parchment Royal Patent of Nobility of my house, and in case that it
should be lost, he must immediately request a certified copy thereof, from the Royal Audiencia, the Noble City, or the
Court of Justice of Tondo in whose offices it has been recorded and so likewise he must do with the certificate of the
coat of arms and insignia of my house, which have been registered in the said Noble City.

"‘Item.

"‘He must uphold all the other rights and privileges conferred upon my house by the aforesaid Royal Letters Patent and
redress all wrongs in violation thereof which may be committed or attempted against my legitimate descendants,
bearing in mind that one of my objects, in the establishment of this mayorazgo, is to uphold and defend the honors that
H. M. has deigned to confer upon me, as a proof of the esteem in which I hold those gracious honors and the deep
gratitude I feel on account of them.

"‘Item.

"‘It shall be his duty to bear, as his first surname, my family name of Tuason, and so shall he sign his name in all judicial
and extrajudicial matters; he shall also display my coat of arms upon all his crests and buildings and he who shall fail to
do any of these things, shall forfeit his right of succession to the mayorazgo, and I hereby declare him excluded
therefrom.

"‘Item.

"‘It shall be his duty to set apart one-fifth of the net revenue derived from the entail each year, and that one-fifth part
shall be divided into eight parts, giving one to each of my eight children, and in their absence, to my grandchildren, but
upon the understanding that if one or more of my children should die without succession, the part belonging to them
shall be distributed among my grandchildren and other descendants of mine according to their needs and as prudence
may dictate to him, so that, when the time arrives that none of my children or grandchildren are alive, it shall then be
always understood that said fifth part shall be applied to all those of my descendants who are poor, the apportionment
to be made by him prudently according to their needs and therefore the possessor of the entail is hereby charged to
discharge this duty with conscientious scruple.

"‘Item.
"‘That the holder of this mayorazgo, having legitimate sisters who may desire to marry or to enter into some convent,
shall assign to the former an appropriate marriage portion, and shall defray, for those who may desire to become nuns,
all the expenses that may be necessary up to the moment that they take the veil, it being well understood, nevertheless,
that all these expenses shall be taken out of the profits and never out of the capital.

"‘Item.

"‘It shall be his duty to preserve all the entailed properties in good condition and to try to increase them as much as
possible, and their increase shall also be incorporated into the mayorazgo as capital.

"‘Item.

"‘Bearing in mind that the entailed houses and other real property belonging to this mayorazgo may be in danger of fire,
on account of their proximity to houses built of nipa, bamboo, and other combustible materials, I order the possessor of
the mayorazgo to keep always in good condition the fire engine from Europe, which I now have at my home, and which I
bought for that purpose, at the cost of P110. Under no excuse whatsoever, even in the case of a public calamity, must
that engine be taken out of my home, except for the purpose to which I destined it; and should it ever deteriorate or
becomes useless, he must immediately substitute it with another of the same quality, the cost of which must be taken
out of the earnings of the mayorazgo; so that if through his guilty negligence any of the properties of the mayorazgo
should be destroyed by fire, as a penalty for his non-performance of this condition, he shall be deprived of the
mayorazgo and this shall pass to the next succession but his successor shall be obliged to rebuild the property
destroyed, and the cost of this work shall be taken out of the entire earnings of this mayorazgo, if it be necessary, but
never out of the capital, so that he shall first apply the earnings of the mayorazgo to whatever expenses may be
necessary for the reconstruction of that property, rather than to his own personal wants.

"‘Item.

"‘He shall also provide another fire engine at the expense of this mayorazgo, to the value of P200, more or less,
according to its size, and it shall always be kept in good condition by the holder of this mayorazgo, with the object of
rendering assistance to the public with it; and in case of fire the said engine shall be handled by the servants of the
possessor, or by any other well known and expert persons; but if by reason of this my desire to help the public in its
need bickerings and controversies should arises or if the strange persons who are to handle the said engine should not
do so with all the care that such a delicate and expensive engine requires, or should it become a cause of worry and
unpleasantness for the possessor of the same, then this clause shall not stand and have the effect that I intended it to
have, but I earnestly caution the holder of the mayorazgo to observe as faithfully as possible this my pious request, and
so attract the blessings of heaven, for it is my earnest desire that the public shall never lack an engine so necessary as
that fire engine, the cost, repair and replacement of which must be taken out of the earnings of the mayorazgo. I also
enjoin the possessor of the mayorazgo to be pious and generous in his expenditure for Divine Worship, the Service of
the King, and the Public Welfare (without vanity) so that the Lord may bless all his undertakings.

"‘Item.

"‘That the possessor of the mayorazgo must necessarily be a layman, and never a member of any religious order under
vow of chastity; and should he enter any religious order while holding the mayorazgo, it shall ipso facto pass to his
children.

"‘Item.

"‘That he must be a Roman Catholic Christian and free from the stigma of treason against H. M. and the country, or that
of any other infamous crime, and should he be guilty of any of these crimes while holding the mayorazgo, it is my desire
that he shall be considered as having been excluded from the same one hour exactly before the time he committed the
said crime, and the mayorazgo shall pass to the next in the order of succession which I establish in this document, and in
the same way let the mayorazgo be understood as having been lost to him who should dare to mortgage it or in any
other way impose or levy upon it any charge that may endanger its existence, and let everything that he may do against
the said mayorazgo be considered to be null and void.
"‘Item.

"‘As soon as the establishment of this mayorazgo shall be approved, I shall give and deliver to him the value of the said
third and fifth, deducting the amount that I may consider it necessary to expend upon the charges on the fifth, and
should this amount deducted be found insufficient for it, the amount that may be lacking shall be taken from the
mayorazgo, but should it be found to be in excess of this requirement, the surplus shall be returned to the funds of the
mayorazgo.

"‘Item.

"‘The properties upon which I establish this entail are: My private residence, with every thing that is contained within its
fence, as well as the dependencies that are built close to the said house and fence on the right hand looking towards the
church of this pueblo of Binondo, which are a shed, with a tile roof, having display tables; a stone house and the lot of
land that reaches up to the estero towards Calle Nueva of this pueblo, all of it surrounded by a stone wall; the image of
Our Lady of Soterrana of Nieva, dressed in a cloth of beaten gold, and contained within its golden tabernacle which is at
this date in my private residence; and the organ which is also in the reception room of my said residence. The value of
my residence is declared in my inventory taken the twelfth of October, seventeen hundred and seventy-nine, adding to
it the sum of P2,200 for the improvements made on it, and which have not yet been completed; and the value of the
other properties shall be their purchase price according to their documents of sale, all of which property is absolutely
free from any encumbrance; and if any amount should be lacking to complete the full value of the third and remainder
of the fifth, it shall be delivered to the holder of the mayorazgo, in cash, to be invested in real estate, especially in lands,
which shall also become capital of the mayorazgo; and if before the Royal approval of the mayorazgo I should find some
houses appropriate for this purpose, I shall buy them for this object and I shall declare them to belong to the mayorazgo.

"‘Item.

"‘It shall be the unavoidable annual duty of the holder of this mayorazgo, to order a novena of Our Lady of Soterrana (of
my special devotion) to be made at the Parochial Church of this pueblo of Binondo, setting up the corresponding candles
in Her altar, and on the last day of that novena to have a public procession of that image through the streets of this
pueblo, as I have been accustomed to do up to now, with all possible ceremony, and for this purpose I now have in my
hands the sum of P2,000 belonging to this pious object (the establishment of which has been set forth in my aforesaid
last will and testament), the earnings of which sum at the rate of five per centum per annum, which are one hundred
pesos, have been destined to the preservation and maintenance of this act of devotion; he shall also fulfill another pious
trust in favor of the souls in Purgatory, to the same amount of two thousand pesos, left by my deceased wife, in my
possession, the interest whereof, which is one hundred pesos, must be delivered to the parish priest of this pueblo to
say a collectory of masses in the same church during the aforesaid novenary of our Lady, giving six reales as alms to each
of these priests for every mass, and if there be any surplus money after the aforesaid novenary it is my will that it be
totally spent for masses in behalf of the souls in purgatory, and in order that from now henceforth the needs of both
these pious intentions be duly attended to, as being one of the objects which I have had in mind in establishing this
mayorazgo, it is my will that the aforesaid sum of four thousand pesos belonging to the two above-mentioned pious
foundations be also entailed in the said mayorazgo. It is also my will that the jewelry of gold, silver and diamonds
belonging to the said image and destined exclusively to Her cult, which I have actually in my possession at this date, and
which are described in a separate inventory, be also kept in his possession by the holder of the mayorazgo.

"‘Item.

"‘It is my will that all the property hereby entailed and all that which may be added to it shall not be sold or alienated, in
whole or in part, or charged or encumbered or mortgaged with censos, or any other kind of encumbrance or charge; and
if the contrary is done it shall be void and he who shall have done it or attempted to do it shall immediately lose the
possession of the mayorazgo, and it shall pass to the next in succession, who shall make demand for the annulment of
the alienation within thirty days; and if he shall fail to do so, he shall also lose the mayorazgo, and it shall pass to the
following possessor; and the same rule shall apply as to all the possessors, and this clause shall be observed although
ignorance of it be alleged.

"‘Item.
"‘To the enjoyment and possession of the mayorazgo I hereby call in the first place my aforesaid son, Don Vicente
Dolores Tuason, on account of the great service he has rendered me, particularly in my old age, for which reason I
consider him to have been bettered upon valuable consideration, and therefore he shall enjoy the possession of the
same, upon the terms set forth, for all the days of his life, and after his death his eldest son, if he be alive, shall succeed
him, and in default of his eldest son, he shall be succeeded by the eldest son or grandson of this said eldest son, and so
on, following the direct line of descent; and in the absence of any direct lineal descendant of his eldest son, let the
possession pass to the eldest living son of the aforesaid Don Vicente, and should there be no son left alive, then to the
eldest grandson of his eldest son; and should the male line of my first born be completely extinguished I desire that the
mayorazgo shall pass unto the eldest son of my deceased son, Don Santos Tuason, and observing in the succession this
same order of procedure, the descendants of my others sons shall in their turn be called to the possession of the
mayorazgo in the successive order of the dates of their birth. While there may remain a single male descendant of any of
my male children no female descendants of mine shall enter into the possession of the mayorazgo; for it is my will that
the said possession shall pass from male to male in strict agnation. But should there be absolutely no male descendant
of the male line, let the descendants of the female line enter into possession, observing the same order that has been
prescribed for the male line, and always giving preference to the male rather than to the female; it being understood
that in this order of succession the possession shall be given to that one of my descendants most nearly related to the
last lineal descendant of my son Don Vicente who may have held the mayorazgo; and in this aforesaid appointment
females shall be qualified to possess the mayorazgo; but the males shall be always preferred to the female even though
the latter may be an elder sister; and in the absence of all descendants of the female line of my sons, let the possession
pass to the descendants of my daughters in the order of their birth, starting with those of my eldest daughter, Dona
Eustaquia, and the order of this succession shall be the same as that already prescribed for the male line.

"‘Item.

"‘And should the line of my descendants of all kinds be absolutely and completely extinguished, then the mayorazgo
shall be applied to the maintenance of the Regiment of the Militia of Mestizos Sangleyes, entitled of the "Prince Royal"
or any other body of soldiers of the same nationality which may be bearing arms in the service of our King; but if at that
time there should be in existence any Monastery for descendants of that nationality, then from that time I deed in favor
of it one-half of the aforesaid mayorazgo; and should there not be at that time either of those two things, let the whole
mayorazgo revert to the Royal Treasury. And with these clauses, conditions, and charges I hereby make, constitute and
establish this mayorazgo, constituting its lawful possessor the owner (señor) thereof upon the terms set forth; and it is
my desire that it have all legal effect that other mayorazgos have and that it should be so considered after obtaining the
Royal Consent and not before, because in establishing its clauses and conditions it has been my only aim to make them
known to the Royal Audiencia and to H. M. so that in view of the same they may alter or modify them according to their
will, with the understanding that I, as a faithful vassal and obedient subject, hereby accept the establishment of the
mayorazgo under any terms and conditions that may meet with the approval of H. M., in this pueblo of Binondo this
25th of February, 1794. Antonio Tuason.’

"In view of which you concluded by praying that the said document, having been presented to me, I should deign to
approve, in each and every one of its terms, the above-mentioned entail of strict agnation, which of the third and the
remainder of the fifth of his property the aforesaid Don Antonio Tuason established in favor of yourself as first-born son,
and of your own and his other descendants under the terms set forth therein, and requested that the corresponding
royal permit be duly issued. And bearing in mind the report of my Council of the Indies, and a letter from my Royal
Audiencia of Manila, dated July 22 of last year, declaring that the said Audiencia could find no objection to the
establishment of the above-mentioned entail and attaching thereto a certified copy of the document in which the
aforesaid entail was established, and in view furthermore of the reports received by me from the Royal Exchequer and
from my Fiscal, I have deigned to approve your request in consideration of all the circumstances detailed above as well
as of the services you rendered me by paying me the sum of 8,800 reales as Half Annata.

"Therefore, of my own volition, with full knowledge of all the facts, and by virtue of my Royal Prerogative, of which I
have decided to make use in the present instance, and of which I do make use as King and natural Lord, recognizing no
higher authority over me in regard to my temporal power, I hereby do approve the establishment of the mayorazgo
founded by your above mentioned father, Don Antonio Tuason, and I hereby declare it to be in effect henceforth
forever, and I do ratify and confirm henceforth the validity of the same, in the terms in which it was established, with all
the clauses, conditions, penalties and restitutions provided for in the body of the said document, and do obviate and
overcome any and all obstacles, faults or defects, of fact or of law, of form, order or substance, that it may be necessary
for me to validate in order to confirm and ratify the said mayorazgo; and I ordain that all the foregoing be put into effect,
fulfilled and observed, notwithstanding any and all other laws, fueros, rights, usages, customs, pragmatics, and
conditions of these Kingdoms and Realms, as well as of the Indies, be they general or special, and whether passed in
parliament or otherwise, for should any such exist contrary hereto, I hereby repeal them and declare them to be null
and void in whatever may relate to the effect and validity of this Cedula, although leaving them in full force and effect in
regard to all other matters.

"And by this my letter or its duly certified copy signed by a notary public I request my beloved son, His Serene Highness
the Prince Don Fernando, and I order all the Infantes, Prelates, Dukes, Marquises, Counts, Knights, Ricos Hombres, Priors
of the orders, Comendadores, and Sub-Comendadores, Wardens of my Castles, my fortified houses and dwellings; the
members of my council, Presidents, Regents and Justices of my Royal Courts of Justice, the Wardens and Sheriffs of my
House, Court and Chancelleries, all the Governors and Corregidores, Veinticuatros Knights, Squires, Officers and
gentlemen, all the Majors, Naval Provosts and all of my Judges and Justiciars, as well as all the other inhabitants of all my
Cities, Towns and open places of these my Kingdoms and Realms, and of the Indies and Islands of the Ocean Sea, not
only those that exist at present, but also those that may come into existence in the future (I order them I say) to observe
and obey and to enforce the observance and fulfillment of every thing that may be contained in this, my letter of
approval and confirmation, in the exact terms in which it is set forth, and that upon no excuse or cause whatsoever shall
they oppose on their own part or allow others to oppose, any obstacles whatever to the fulfillment of this my will; and
let this my letter be registered in the ’Contadurias Generales de valores,’ Royal Exchequer and my Council of the Indies.

"Dated in San Ildefonso, the 20th of August, 1795.

"I, THE KING"

At the beginning and on the left margin there is a note reading as follows:jgc:chanrobles.com.ph

"Approving and confirming the mayorazgo founded by Don Antonio Tuason, late Lieutenant-Colonel of the Royal Armies,
and supernumerary Colonel of the Regiment of the Prince Royal of the City of Manila, in the Philippine Islands, upon the
terms and conditions therein set forth.

"Done in duplicate, countersigned by the Secretary, Don Antonio Ventura de Franco."cralaw virtua1aw library

Neither the authenticity nor the due execution of the instrument above set forth has been disputed, nor its solemn
legalization and confirmation in strict accordance with the laws then in force.

The disagreement of the parties is as to whether the first-born possessor of the entail is or is not a mere usufructuary
and if the mayorazgo is or is not a trust (fideicomiso).

At first sight it might appear to be unnecessary to decide these questions, if plaintiffs’ action is based, as alleged, upon
the right of their ancestors to a participation in the fifth of the revenue. But if, as they affirm, the distribution of the fifth
of the revenue is a family trust subject to article 4 of the Disentailing Law of October 11, 1820, such participation in the
revenue, by virtue of the provisions of that article, became converted into a participation in a fifth of the properties of
the mayorazgo. There would be no occasion for such condition and participation in the property if the first-born
possessor had, not only the usufruct, but also the naked ownership, nor if the entail were not a trust.

Both parties agree, nevertheless, that the entail under consideration is a mayorazgo. Now what is a mayorazgo? Let us
take the definition given according to Gutierrez by Molina in his "Hispan Primogeniis," accepted by the parties. It is as
follows:jgc:chanrobles.com.ph

"Majoratus est jus succedendi in bonis ea lege relictis ut in familia integra perpetuo conserventur, proximoque cuique
primogenito ordine succesivo deferantur." (Gutierrez "Codigos," tomo 2, p. 207.)

(A mayorazgo is the right to succeed to the property left upon the condition that it be preserved perpetually intact in the
family and that it be transmitted in order of succession to each next first-born.)
In the present foundation we find: Succession to the hereditary estate; the condition that the properties be preserved
perpetually intact in the family of the founder; the requirement that they shall pass in the established order to each
succeeding first-born.

Now let us see if the first-born possessor of the entail is or is not a mere usufructuary.

In the text of the instrument of foundation we see that the founder does not give to the first-born the title of "owner"
but only that of possessor, and that he applies this designation to him with frequent insistence. In the seventeenth
clause it is declared that it is the enjoyment and possession of the mayorazgo (not the absolute ownership) to which the
first-born is called. And when, in the eighteenth clause he calls him "owner" (señor), the founder takes care to do so
under express limitation of the concept, for he says: "And with these clauses, conditions and charges I hereby make,
constitute and establish this mayorazgo, constituting its lawful possessor the owner (señor) thereof upon the terms set
forth . . . ." (Italics ours.)

With respect to the extent of the rights of the first-born possessor of the mayorazgo upon the properties thereof, this is
what he said upon this subject in clauses 8 and 16, which we again transcribe, as follows:jgc:chanrobles.com.ph

"Id. It shall be his duty (that of the possessor of this mayorazgo) to preserve all the entailed properties in good condition
and to try to increase them as much as possible, and their increase shall also be incorporated into the mayorazgo. . . .
(Italics ours.)

"It is my will that all the property hereby entailed and all that which may be added to it shall not be sold or alienated, in
whole or in part, or charged or encumbered or mortgaged with censos, or any other kind of encumbrance or charge; and
if the contrary is done it shall be void and he who shall have done it or attempted to do it shall immediately lose the
possession of the mayorazgo, and it shall pass to the next in succession, who shall make demand for the annulment of
the alienation within thirty days; and if he shall fail to do so, he shall also lose the mayorazgo, and it shall pass to the
following possessor; and the same rule shall apply as to all the possessors, and this clause shall be observed although
ignorance of it be alleged."cralaw virtua1aw library

Consequently, the first-born, according to the terms of this foundation, has the "enjoyment and possession" of the
properties of the mayorazgo, but subject to the strict obligation of preserving them intact, it being absolutely and
severely forbidden to sell them, alienate them or encumber them in any manner whatsoever.

If his rights are limited in this manner it is our understanding that the first-born who enters into possession of this
mayorazgo does not acquire the dominium directum over the entailed properties, but only their enjoyment, or, in other
words, the dominium utile, and this is precisely what constitutes a usufruct, which, as we know, is the right to enjoy the
property of another with the obligation of preserving its form and substance. (Jus alienis rebus utendi fruendi salva
rerum substantia.)

But, if the first-born possessor is not vested with the ownership of the properties, in whom is it vested?

It is vested perpetually in the descendants of the founder, in all their indefinite succession. This is what is implied in
Molina’s definition which we have transcribed: ". . . Ut in familia integra perpetuo conserventur . . . ."cralaw virtua1aw
library

Therefore it is that Alcubilla (Diccionario de la Administracion Española, vol. 7, p. 1000), in speaking of the mayorazgo,
begins by saying: "The mayorazgo was an entail of properties subject to the ownership of a family with the prohibition of
alienation." (Italics ours.)

Escriche, in his "Diccionario Razonado de Legislacion y Jurisprudencia," (vol. IV, p. 67) gives a similar definition, which is
as follows:jgc:chanrobles.com.ph

"Mayorazgo. The right to succeed to entailed properties, that is, to properties subject to perpetual ownership by some
family, with the prohibition of alienation." (Italics ours.)

It is to be noted that both Alcubilla and Escriche use the expression "ownership of the family," and not "ownership of
the first-born possessor."cralaw virtua1aw library

That the possessors of mayorazgos were nothing more than usufructuaries, has been so decided by the Supreme Court
of Spain in its judgment of June 5, 1872, of which the part pertinent to this case is as follows:jgc:chanrobles.com.ph

"Up to the time of the publication of the Disentailing Law in 1836 [in the Philippines read March 1, 1864] the possessors
of entails and mayorazgos HAD ONLY THE RIGHT OF USUFRUCT of the inalienable properties which constitute them, with
the obligation of performing the obligations imposed by the founder, for which reason they could only renounce or
transfer that same right and the powers granted them by the foundation." (Capitals and brackets ours).

Let us pass to the second point. Is this mayorazgo a trust or not?

Counsel for defendants allege that the mayorazgo is an institution distinct from the trust (fideicomiso), and that the
entail here in question is a mayorazgo and not a trust.

It is true that the mayorazgo must be distinguished from the trust. But it is also true that the differences between one
and the other do not make the mayorazgo incompatible with the trust. Gutierrez, in his work entitled, "Codigos o
Estudios Fundamentales sobre el Derecho Civil Español," second volume, pages 191 and 192, second edition,
says:jgc:chanrobles.com.ph

"Mayorazgos have also been compared to trusts (fideicomisos), but we cannot believe that the intention, in doing so,
was to make no distinction between them. To say that they were introduced in imitation of the fideicomisos and of the
feuds is not equivalent to the affirmation that they are either one or the other. If it is necessary to seek out the
antecedents of this institution, one must go to the source of all of them— the Roman Law and the Germanic Law. The
former gives us as our sole model the fideicomiso; but knowing what this was, and the causes and effects of this
testamentary disposition, it would have been an error, impossible to our authors, to regard the fideicomiso as the
source from which the mayorazgos were derived. Let us see how Paraladorio explains the matter in his Diferencias: ’The
nature of the mayorazgo has such affinity with the fideicomiso that to some extent Palacios, Rubios, Covarubias,
Menchaca, etc., are not without justification for their statement: Nihil aliud esse majoratum quam fideicommissum
quoddam in perpetuum relictum cum primogeniti praerogativa. Nevertheless they are to be distinguished, first because
the fideicomiso can be created by will or codicil only whereas the mayorazgo can be created by contract; the
fideicomisario (beneficiary) cannot take possession of the property by his own authority; the successor to a mayorazgo,
as soon as the condition of the instrument of foundation is complied with, acquires the possession thereof. The
mayorazgo is an institution sui generis, and it cannot be said, simply because it possesses similarity to the fideicomiso,
and at times maybe governed by the same rules of law, that they are one and the same thing.’ (Dif. 18.)"

As may be seen, these differences refer to the origin of the institution, to the form of its constitution and to its
enjoyment on the part of the beneficiary. These are details which do not divest the mayorazgo of its nature as a
fideicomiso, the essence of which, in concise terms, is nothing more than the confiding of a thing to one in order that he
may preserve it and deliver it to another (fidei tuae committo). This in substance is what the mayorazgo is— the
confiding of the entailed properties to the first-born in order that he may preserve them for the family and deliver them
to his successor.

To both institutions is applicable this definition of the fideicomiso, taken from Alcubilla (Diccionario de la Administracion
Española vol. 5, p. 635):jgc:chanrobles.com.ph

"A form or manner of testamentary substitution by which the testator or trustor charges the heir (trustee) to deliver a
certain aliquot portion of the estate, or all thereof, to a third person who receives the name of beneficiary
(fideicomisario)."cralaw virtua1aw library

As every mayorazgo contains the essential elements of a fideicomiso, many writers, among whom are those whom we
cite in this decision, when they speak of the fideicomiso in the sustitucion fideicomisaria, cannot avoid directing their
attention to the mayorazgo, and they compare the two institutions, seeking in them, not the essential common
elements which they recognize in them, and which have led them, by association of ideas, to think of the one when
studying the other, but rather reasons of distinction and difference because of their essential generic similarity.
There were and there are still in the Spanish laws various forms of trusts derived from the customary law. Among such
trusts, one successive and perpetual one arose, vested with the prerogative of primogeniture, and involving the principle
of masculinity. This is the mayorazgo.

Thus it is that Scaevola, in his work on the Civil Code, volume 13, pages 501 and 502, says:jgc:chanrobles.com.ph

"But up to this point we have been speaking of temporary trusts. Now comes the turn of the perpetual trusts, the most
typical of which is the institution known by the name of mayorazgo." (Italics ours.)

And on page 505 of the same volume, speaking of the tendency to perpetuate family lustre and traditions, the same
writer makes the following statement:jgc:chanrobles.com.ph

"From the nobles the tendency passed to the commons and the mayorazgo became general. What did the mayorazgo
come to be? The Roman SUSTITUCION FIDEICOMISARIA as to its form; as to its substance the continuation of this
substitution with the right of primogeniture and the principle of masculinity." (Italics ours.)

In the "Enciclopedia Juridica Española," vol. 22, page 105, the distinguished collaborator, Don Jose Buxade, in explaining
the mayorazgo, makes the following observation:jgc:chanrobles.com.ph

"This succession, predetermined by the founder or by the law, has some of the features of the sustitucion fideicomisaria,
some of the Germanic principle of masculinity and some of feudal primogeniture, as has been stated by Señor Azcarate."
(Italics ours.)

As we have observed in one of the citations which we have inserted, the writer Palacios Rubios, and others mentioned
by Parlodorio, did not hesitate to say, as he observes: "Nihil aliud esse majoratum quam fideicomissum quoddam in
perpetuum relictum cum primogeniti praerogativa." (That the mayorazgo is nothing but a certain trust left in perpetuity
and with the prerogative of primogeniture.)

And this, in our opinion, is correct. The fideicomiso is the genus and the mayorazgo the species. Not every fideicomiso is
a mayorazgo, but every mayorazgo is a fideicomiso.

Analyzing the entail under consideration, we may say that it is a mayorazgo (from major natu, the first-born) in that it is
a right granted to each first-born to succeed to the entailed properties in order to preserve them intact and perpetually
in the family, and deliver them in the order of succession to the following first-born. And it is a fideicomiso, in that it is a
charge of confidence imposed upon the first-born usufructuary possessor to preserve the entailed properties in order to
deliver in due time the possession and enjoyment thereof to the succeeding first-born.

Leaving out of consideration for a moment its characteristic of perpetuity, which, as we have seen, does not alter its
nature, this successive appointment, made in the foundation in the case at bar, to the enjoyment of the dominium utile
amounts to a call to the usufruct with which the second part of article 787 of the Civil Code deals. We refer to it in order
that a better understanding may be had of the following language of Manresa in one of his commentaries upon that
article, which is as follows:jgc:chanrobles.com.ph

"But notwithstanding such authoritative opinions to the contrary, it is our understanding that if the usufruct, like other
rights, may be the subject matter of a substitution because the testator is not bound to dispose jointly of the dominium
directum and the dominium utile, or in favor of a single person, it is unquestionable that when he calls successively
several instituted heirs to the enjoyment of the dominium utile, the one first called has the character of a trustee who is
to deliver that right to the beneficiary when the time specified in the will arrives and that therefore it constitutes a true
fideicomiso." (Manresa, Spanish Civil Code, vol. 6, p. 172, edition of 1921.) (Italics ours.)

But counsel for defendants insist that this mayorazgo is not a fideicomiso.

Now let us examine the grounds upon which this conclusion rests.

They refer to the fact that both in the deed of foundation and in the Royal Cedula by which it was conferred, as well as in
the complaint in this action, in the stipulation of facts and in plaintiffs’ brief, it is not called a fideicomiso but a
mayorazgo. But mayorazgo is the specific name, and if, as we have said, the mayorazgo belongs to the genus of
fideicomisos, because it is one of them, the mere fact that the name fideicomiso was not given it is not equivalent to a
denial that it is such.

Defendants’ counsel point out several differences between e fideicomiso and the mayorazgo. We have already stated
that such differences do not make them mutually incompatible, and do not deprive the mayorazgo of the trust
characteristic inherent in its nature.

The fact that the creation of fideicomisos is not subject to the formalities required for mayorazgos; that the latter might
be founded by contract and are irrevocable in certain cases, while fideicomisos must always be established by will and
are revocable; that in mayorazgos the trustee is always a relative of the founder, whereas in the ordinary fideicomiso it
is not necessary that he should be; that in the mayorazgo the one who is called to the entail, as soon as his right vests,
may take possession of the properties with- out the necessity of a delivery, which is not the case with respect to the
fideicomiso—all these are differences in matters of detail which do not change the legal condition of the property in
either case inasmuch as their owner confides them to a person for preservation and delivery to another, which is the
characteristic and fundamental aspect of the mayorazgo which we must keep in mind in order to determine whether the
plaintiffs are or are not entitled to the relief sought by them in the complaint in this case.

The fact that in the mayorazgo there is a perpetual entail of properties, while in the ordinary fideicomiso it is only
temporary, does not support the theory of the defendants. We have already observed that Scaevola refers to the
mayorazgo as the typical perpetual fideicomiso. The characteristic of perpetuity in the mayorazgo does not deprive it of
its nature as a fideicomiso.

The fact that in the mayorazgos the possessor enjoys the properties, whereas under ordinary fideicomisos he does not,
is no reason for concluding that the mayorazgo is not a fideicomiso. This difference as to the rights of the trustee in
either case does not destroy the nature of the charge of preserving the properties received in order to deliver them to
the beneficiary. We have already noted that in the mayorazgo the possessor of the entail is a mere usufructuary and this
only during the period of his tenancy.

It is not correct to state, as is asserted in the reply memorandum of the appellees, pages 2 and 3, that the first-born or
successive possessors of the mayorazgo are at one and the same time trustees and beneficiaries. They are not both at
the same time or with respect to the same thing. While he possesses the mayorazgo, the first-born is a trustee, but he is
not a beneficiary. If he enjoys the properties he does not do so as either trustee or beneficiary, but as a usufructuary
heir. During his possession of the entail he is the trustee and the one called to succeed him in the enjoyment and
possession of the entail is the beneficiary or cestui que trust until his tenancy begins, and when it does begin he ceases
to be the cestui que trust and becomes the trustee. Consequently, in the mayorazgo, at any given moment the same
distinction exists between the functions and rights of the interested parties as that which there is in the fideicomiso.

It is asserted in said memorandum and in the same place that in the mayorazgo the title to the properties is vested in
the first-born who possesses them, in view of his double character of trustee and cestui que trust, while in the
fideicomiso the title is not vested in the cestui que trust, but in the trustee. This requires some explanation. The first-
born possessor of the trust holds title to the properties as trustee, not as cestui que trust, and enjoys the use of such
properties as usufructuary, not as cestui que trust; and this title under which he holds is not definitely vested in him. It is
a trust title, that is to say, essentially and inseparably conditioned upon the obligation of preserving the property for the
beneficiary. The same thing is true with respect to the title which the trustee holds to the property in his care. The fact is
cited that the Disentailing Law of October 11, 1820, in enumerating the entails which it abolishes, uses the terms,
"mayorazgos," "fideicomisos," "patronatos," etc., which, according to counsel for defendants, implies that the
mayorazgo and the fideicomiso are entails of different kinds. And so, truly, they are. The mayorazgo and the fideicomiso
are different entails, but the mayorazgo does not on that account cease to be a species of fideicomiso. The purpose of
the law was to abolish civil entails and therefore, as Gutierrez says in the passage cited in defendants’ brief, "it was
necessary to enumerate these acts which differ somewhat from one another, although in the principal idea all are alike
because they are special forms of entail." (Vol. 2, "Codigos," p. 227.) (Italics ours.)

It is said in the brief of the defendants that it may be admitted that the mayorazgo is a sustitucion fideicomisaria but not
that the mayorazgo is a fideicomiso. It cannot, however, be denied that the sustitucion fideicomisaria is nothing more
than the combination of the substitution and the fideicomiso. This is so stated by the distinguished author Sanchez
Roman in the passage which defendants cite in their brief (pages 365-40), and which is as follows:jgc:chanrobles.com.ph

"It was later, when, from the combination of these two institutions— the substitution and the fideicomiso— the
sustitucion fideicomisaria arose as a form completely distinct from the other classes of substitutions known to the law—
the vulgar, the pupilar, and the ejemplar— as a means of consolidating the fortunes of families by preventing their
dissolution and ruin. From the fideicomiso was taken the designation of various persons through whose hands the estate
was to pass applying the doctrine of the substitution in that the one called in the first place was entitled to the use and
enjoyment of the hereditary properties with the obligation of preserving them in order to transmit them at his death to
the one called in the second place as the substitute of the first. The second tenant occupied the same position as the
first tenant with respect to the person designated in the third place, and so on successively. The inalienability of the
hereditary properties and a pre-established order of succession, which were the logical consequence and development
of those principles, constituted the elements of the entail and it was sufficient to add to them, in the most advanced
period of their history, the Germanic principle of masculinity and the feudal principle of primogeniture, in order to
establish the mayorazgos — true outgrowths of the sustitucion fideicomisaria." (Vol. 6 [1st vol. ], pp. 689, 690.) (Italics
ours.)

The quoted paragraph contains a statement made by other writers, which is that the mayorazgo is an outgrowth of the
sustitucion fideicomisaria. If the latter, according to the cited passage, is in turn a combination of the sustitucion and of
the fideicomiso, it follows that there is a fideicomiso in the sustitucion fideicomisaria, just as there is in the outgrowth of
the latter, which is the mayorazgo, unless the fideicomiso disappeared when it was combined with the sustitucion and
converted into the sustitucion fideicomisaria, and also disappeared when the mayorazgo was developed from the latter
institution. But such is not the case, and we have already seen that the mayorazgo is in itself a fideicomiso, that it is one
of its species.

We are unable to find any sufficient reason for the abandonment of the conclusion that the mayorazgo in question is in
its essence a fideicomiso.

Now, within this foundation a special trust was established, consisting of the charge laid upon the first-born possessor to
set apart the fifth part of the net revenue of the properties each year, and to distribute it among the eight younger
children of the founder and other specified relatives.

This special trust is not an essential part of the mayorazgo— that is to say, the mayorazgo could have existed just as well
without it. It constitutes one of the provisions, one of the conditions imposed upon the first-born possessor of a kind
which is frequent in such cases and not prohibited by the law. Gutierrez in the cited volume of his work, page 203,
says:jgc:chanrobles.com.ph

"The mayorazgo permits fair conditions; it would be difficult to determine, among the vast number which have been
invented by the capricious will of the founders, which are those which merit this consideration and what are their
effects."cralaw virtua1aw library

Its legality and fairness cannot be doubted, inasmuch as this mayorazgo, including the provision under consideration
with respect to the fifth of the revenue, was solemnly approved and confirmed by the King of Spain, who, in his Cedula
issued for that purpose, inserted together with the foundation instrument at the beginning of this decision, says in
part:jgc:chanrobles.com.ph

". . . I do approve the establishment of the mayorazgo founded by your above-mentioned father, Don Antonio Tuason,
and I hereby declare it to be in effect from this moment henceforth forever, and I do ratify and confirm henceforth the
validity of the same in the terms in which it was established with all the clauses, conditions, penalties and restitutions
provided for in the body of the said document . . . ." (Italics ours.)

This special charge upon the fifth of the revenue constitutes the family trust to which Scaevola refers in his cited work on
the Civil Code, volume 13, pages 697, 698, wherein he says:jgc:chanrobles.com.ph

"Family trusts. — The Act of 1820 distinguishes between mayorazgos and fideicomisos. In the former there is a
successive succession of certain persons, a transmission from one to another; in the fideicomiso on the contrary there is
only a corpus of properties, the revenues from which are distributed annually, or at longer or shorter periods among
groups of persons. When this group is composed of relatives of the founder, the trust is called a family trust." (Italics
ours.)

It is true that the special charge which constitutes the family trust established in the entail now under consideration, is
different from the mayorazgo upon which it is based, and as Scaevola well says, the Act of 1820 distinguishes one from
the other by different precepts, applicable to each, as we shall see hereafter. And they are different from one another
even though in the essence both are trusts. Applying to our case what is said by Scaevola in the citation we have just
transcribed, it follows that in the mayorazgo, properly so called, the usufructuaries, who are the first-born possessors,
succeed one another in the usufruct of the properties, and transmit them from one to the other; that is to say, as
Scaevola says, "there is a successive succession of certain persons, a transmission from one to an- other;" and in the
family trust there is the corpus of the property of the entail, a fifth of the revenue of which is distributed annually among
the relatives of the founder, which is what Scaevola says in the cited passage. But in the passage he says: "In the trust
(fideicomiso) on the contrary there is only a corpus of properties," etc. He says "there is only" in contradistinction to
what there is in the mayorazgo, namely a succession of usufructuaries and the transmission of the usufruct from one to
the other; while in the family trust there is no such succession of usufructuaries or such transmission of the usufruct, but
only a corpus of properties, a fifth of the revenue of which is distributed each year among the relatives of the founder.

It is true that in this family trust there is a succession of beneficiaries who are the first-born sons; but this succession is
inevitable in every perpetual family trust, because man’s life is limited. And certainly the existence of such an indefinite
succession is to be anticipated in a perpetual family trust, such as the one under consideration, as otherwise it would not
have been one of the entails abolished by the Act of October 11, 1820.

But counsel for defendants observes that the mayorazgo having been established upon all the entailed properties, there
cannot be a distinct and separate trust with respect to a part of the revenue. He adds that there would have been such a
separate trust if the founder had designated certain properties which would constitute a fourth part (he probably meant
to say four-fifths) and the mayorazgo had been established upon this and that the family trust had been established
upon the remaining fifth.

We find no force in this suggestion. If the founder had designated certain properties constituting a fifth of the entailed
estate, in order that the revenue of that fifth might be distributed among his eight younger children and other relatives,
he could not have been sure whether the revenues of the fifth of the entailed properties would constitute a fifth of the
revenue of all such properties. His clearly expressed intention, as shown by the deed of foundation, is that there shall be
distributed not the revenue from one-fifth of the properties, but a fifth of the revenue of all the properties mentioned.

It is our opinion that such a charge with respect to the distribution of the fifth of the revenue constitutes a family trust
such as that described by the learned writer Scaevola in the citation above set forth.

Therefore, with respect to the question raised by the parties concerning the nature of the foundation which is the
subject-matter of this action, our conclusions are as follows:chanrob1es virtual 1aw library

The first-born possessor of this mayorazgo is a mere usufructuary of the entailed properties.

This mayorazgo is, in its essence, a trust.

Annexed to this trust there is a special institution which constitutes a family trust.

With respect to the parties interested in these institutions so constituted by the present foundation, we hold that in the
mayorazgo as such, from the point of view of its nature as a trust, the trustor is the founder; the trustee is successively
each first-born possessor of the entail, from the time he possesses and while he possesses it; the beneficiary or cestui
que trust, is the first-born successor called to possess the entail, and prior to the commencement of his possession; for
as soon as his possession commences, he becomes the trustee and the following first-born becomes the beneficiary.

In the family trust instituted within this mayorazgo, and upon the fifth of the revenue, the trustor is the founder himself;
the trustee is also successively each first-born possessor of the entail from the time he possesses it and while he
possesses it; and the beneficiaries, or cestuis que trustent, are the eight younger children of the founder and other
relatives designated in the deed of foundation.
We deem it to be advisable to state, for the purpose of avoiding confusion, that we have adopted here the
nomenclature of the Civil Code in force (arts. 783, 784) in which the "fideicomisario" is the beneficiary (cestui que trust),
as distinguished from the meaning with which this word "fideicomisario" has been used in the Spanish translation of
sections 582-593, and 778 of the Code of Civil Procedure, in which the idea is conveyed that the "fideicomisario" is the
person charged with the trust— that is, the "trustee" whom we designate as the "fiduciario."cralaw virtua1aw library

DISENTAILING LAW; CONDUCT OF THE PARTIES; ITS EFFECTS

We have-stated that on October 11, 1820, the Civil Disentailing Law was published in Spain, and that this Act was
extended to the Philippines as of the 1st of March, 1864, by Royal Decree dated October 31, 1863.

Articles 1, 2, 3, 4, 7 and 10 of the Statute of October 11, 1820, which contain the precepts pertinent to the matters here
in controversy, read as follows:jgc:chanrobles.com.ph

"ARTICLE 1. All mayorazgos, fideicomisos, patronatos, and every other species of entail of property, real, personal, mixed
or semoviente, censos, juros or of any other nature, are hereby abolished, and the properties entailed are henceforth
restored to the class of absolutely free properties.

"ART. 2. The present possessors of the entails abolished by the preceding article may at once freely dispose of one-half
of the properties of which they are composed; and after their death the other half shall pass to the persons who would
have been entitled to succeed immediately to the mayorazgo if it had subsisted, so that he may also freely dispose of it
as the owner. This one-half reserved to the immediate successor shall never be liable for debts contracted or which may
be contracted by the present possessor.

"ART. 3. For the purpose of carrying into effect the provisions of the preceding article, whenever the present possessor
may desire to alienate all or part of his one-half of the properties heretofore entailed, a formal appraisal and division of
all of them shall be made with strict equality and with the intervention of the immediate successor; and if the latter
should be unknown, or should be subject to the patria potestas of the present possessor, the Syndic Procurator of the
town where the possessor resides shall intervene in his name, without requiring for this any fees or emoluments
whatever. If these requisites are not complied with, the contract of alienation made shall be void.

"ART. 4. As to family trust, the revenues of which are distributed among the relatives of the founder, although they be of
different lines, the appraisal and distribution of the properties of the trust shall be made at once among the present
recipients of the revenues in proportion to that which they are receiving, and with the intervention of all of them; and
each, as to the part of the properties which is allotted to him, may freely dispose of one-half, reserving the other half to
the immediate successor in order that he may do likewise, in strict accordance with the provisions of article 3.

"ART. 5. With respect to elective mayorazgos, trusts or patronatos, when the election is absolutely free, the present
possessors may dispose as owners of all the properties; but if the election must necessarily fall upon a member of some
particular family, or community, the possessors shall dispose of only one-half and shall reserve the other one-half to the
end that the successor who may be elected may do the same; the appraisal and division prescribed by article 3 shall be
made with the intervention of the Syndic Procurator.

x              x              x

"ART. 7. The temporary, as well as the perpetual, charges to which all the properties of the entail are subject in general,
without special mortgage, shall be allotted with proportionate equality to the properties distributed and partitioned, as
herein provided, unless the interested parties by common agreement, shall prefer some other method.

x              x              x
"ART. 10. Be it likewise understood that the foregoing provisions shall be without prejudice to the allowances for
support (alimentos) or annuities (pensiones) which the present possessors are required to pay to their mothers, widows,
brothers, the immediate successor, or other persons, in accordance with the foundations or private agreements, or
judicial decision. The properties heretofore entailed, although they may pass as free to other owners, shall remain
subject to the payment of such allowances for support (alimentos) or annuities (pensiones) during the lifetime of those
who are now receiving them, or while they retain the right to receive them, unless the recipients of such allowances for
support are immediate successors, in which case they shall cease to enjoy them as soon as the present possessors die.
Thereafter the obligations now existing to pay such annuities (pensiones) and allowances for support (alimentos) shall
cease, but it is declared that if the present possessors do not invest in such allowances for support (alimentos) and
annuities (pensiones), a net sixth part of the revenues of the mayorazgo, they shall be obliged to contribute up to this
extent for the purpose of endowing their sisters and aiding their brothers in proportion to their number and needs; and
a like obligation shall rest upon the immediate successors in respect to the one-half of the properties reserved to them.

x              x              x

"ART. 14. No one hereafter, even though it be by way of betterment or upon any other title or pretext, shall found any
mayorazgo, fideicomiso, patronato, capellania, obra pia or any entail whatsoever upon any kind of properties or rights,
nor prohibit, directly or indirectly, their alienation. Neither shall any one entail bank stock or other foreign funds." (Vol.
6, "Legislacion Ultramarina," by Rodriguez San Pedro, page 72.)

Under the provisions of article 2 above set forth the possessors of mayorazgos from the time the Act took effect were
authorized to dispose freely of one-half of the entailed properties, the other one-half being reserved in absolute
ownership to the successor to the entail.

And in accordance with the provisions of article 4 of the same statute, the properties of the family trust were required to
be distributed among the recipients of revenues in proportion to their respective participations.

Applying these articles to the foundation which is the object of the present case, and considering as we do, that the
charge relating to the distribution of one-fifth of the revenue constitutes a family trust, it follows that for the purpose of
carrying out the provisions contained in the entail under consideration, without a breach of any of its conditions, it must
be kept in mind that the participation in the fifth of the revenues, by virtue of article 4 above-mentioned, and
proportionately among the recipients, became converted into a participation in the ownership of one-fifth of the
properties; and inasmuch as this fifth must be taken from the properties of the mayorazgo, it is evident that the
provisions contained in article 2 of the law with respect to the power of the first-born possessor to freely dispose of one-
half and to reserve the other one-half to his successor, must become operative in our case, not upon all the properties
of the entail, because one-fifth is assigned by article 4 above-mentioned to the recipients of the fifth of the revenue, and
their successors, but upon the remainder, namely the four-fifths part of said properties.

Counsel for defendants, insisting in their opinion that this charge concerning the distribution of the fifth of the revenues
among the relatives of the founder is not a family trust, denies the applicability of article 4 of the Disentailing Law, and
affirms that such distribution of the fifth of the revenues relates to the charges, allowances for support (alimentos) and
annuities (pensiones) to which articles 7 and 10 of that statute apply.

Having arrived at the conclusion that this distribution of the fifth of the revenue is a family trust, it appears to us that the
application of article 4 of the Disentailing Law is inevitable as this article expressly and unequivocally refers to ’’family
trusts, the revenues of which are distributed among the relatives of the founder."cralaw virtua1aw library

With respect to the charges to which article 7 refers, counsel for defendants insist that these are included in the
pensions mentioned in article 10 and, for the purpose of supporting this assertion, cite Gutierrez’ Commentary upon
article 7. To this counsel for plaintiffs reply with an observation which, in our judgment, successfully refutes defendants’
proposition. This is what the plaintiffs say in their additional brief, pages 5 and 6:jgc:chanrobles.com.ph
"In his commentary on article 7 Gutierrez says, as stated in the brief of our opponents, that ’this provision was lacking in
the draft, for article 5, with which it is most naturally connected, speaks of allowances for support and pensiones
alimenticias, which, in the existing law, are covered by a special article.’ From this citation we draw the conclusion that
article 7 did not exist in the original draft of the law; but on the other hand, the provisions of article 10 did exist in the
original draft, and it became necessary to increase it, in the bill article 10, and this does not include what is included in
article 7."cralaw virtua1aw library

This fifth of the revenue, the distribution of which is required with respect to the family trust, cannot be the same as the
allowances for support or pensiones alimenticias, to which article 10 relates, for, as observed by counsel for plaintiffs,
the younger children, among whom in the first place this fifth of the revenue was to be distributed, had already received
their respective legitimes before the mayorazgo was founded. At the beginning of the deed of foundation and in its first
clause we find that the founder says, among other things:jgc:chanrobles.com.ph

". . . and desiring, on the other hand, to secure in part the permanence of my estate, without diminishing the legitimes
of my other children . . .

x              x              x

"Having taken stock and inventory of all the property of which I am now possessed, in cash, real estate, jewelry and
other things, I found myself to be the possessor of an estate of the value of one hundred and thirty-five thousand pesos,
which after having deducted the third and the fifth, left me a remainder of seventy-two thousand pesos which I divided
among my eight children, there corresponding to each of them the sum of nine thousand pesos, which sum was actually
delivered to each and very one of them, as is shown by documents which I have in my possession; and the third and the
remainder of the fifth I hereby devote to the aforesaid entail. . . ." (Parenthesis and Italics ours.)

At all events article 10 refers to allowances for support or pensions in general; and even assuming for the moment that
the fifth of the revenues to be distributed among the younger children of the founder and his other relatives should also
be considered as an allowance for support or a pension, this article would not be applicable because there is a special
provision in article 4 which relates specifically to family trust, the revenues of which are distributed among the relatives
of the founder. The legal maxim is: specialia generalibus derogant.

The same thing may be said with respect to article 7 which refers to "the temporary, as well as the perpetual, charges to
which all the properties of the entail are subject in general." Considering this distribution of the fifth of the revenue as a
charge in the broadest meaning of this word, we should not apply article 7, which deals with charges in general, because
there is another provision in article 4 which relates specifically to the distribution of revenues among the relatives of the
founder.

Now, in accordance with the allegations contained in paragraph 5 of the first special defense (bill of exceptions, p. 45), it
was Don Jose Severo Tuason who possessed the mayorazgo on the 1st day of March, 1864, on which date the
Disentailing Law, to which reference has been made, became operative in the Philippine Islands.

By virtue of the provisions of article 2 of that law, Don Jose Severo Tuason, the then possessor of the entail, might on
that date have freely disposed of one-half of the four-fifths of the properties of the mayorazgo.

An in accordance with the provisions of article 4, he should have made an appraisal and distribution of the fifth of the
properties among the recipients of the revenues in proportion to their respective participations, and each might have
freely disposed of one-half of his participation, reserving the other one-half for his immediate successor.

Nothing of this kind was done, however. Don Jose Severo Tuason continued to regard the mayorazgo as subsisting and
the properties as entailed. Thus it was that in his will, executed February 1, 1874, he says, among other
things:jgc:chanrobles.com.ph
"Item. I declare that when I married my said wife my estate consisted of the sum of $144,974.28, deducting the value o f
the entail I possess." (Clause 3, f olio 2, Exhibit 1.)

"Item. I declare that among my properties is included the entail which I have been enjoying and which I inherited from
my father, whom I trust is in glory on high, and which will pass on the same order of its institution to my first born son,
Don Jose Victoriano, subject to the provisions of law now in force in the matter." (Clause 6, ditto, folio 3.) (Italics ours.)

This testator, as we have stated in the beginning, died on February 3, 1874.

His heirs and successors continued to respect the mayorazgo, as may be seen In the deed of partition in the proceedings
connected with the inventory, liquidation, accounts and distribution of the estate (Exhibit 3), judicially approved January
12, 1876, wherein it is said:jgc:chanrobles.com.ph

"The $48,949.11 which is the value of the entailed properties which are to pass intact to the immediate successor of the
mayorazgo." (Folio 2, Exhibit 5.)

The first-born successor, Don Jose Victoriano Tuason, as stated above, died January 23, 1878, at the age of 13 years.
(Paragraph 6, first special defense.)

More than eighteen years afterward, on the 7th day of August, 1896, the record of the partition above-mentioned was
registered.

It is also a proven fact, as stated at the beginning, that in the books of the defendants corresponding to the time which
has transpired since the year 1904, and up to the year 1922, entries appear relating to expenses and receipts of the
mayorazgo, participations in the fifth of the products, purchases of rights to said fifth of the products, and fees for
preparing deeds of assignment of the said fifth of the products. That is to say, the parties interested in this foundation
kept it in force in its entirety from March 1, 1864, on which date the Disentailing Law of October 11, 1820, came into
effect in these Islands at least up to the end of the year 1922, one year, seven months and some days before the
commencement of the present action.

We consider it opportune to cite at this point an opinion of the Supreme Court of Spain concerning the status of
properties which formerly belonged to a mayorazgo but which are allowed to remain undivided, in which it is
said:jgc:chanrobles.com.ph

"2. That the properties which belonged to a mayorazgo preserve their character as entailed for the purposes of the
partition, up to the time of delivery to the heir of the possessor and to the immediate successor of the half which is due
them respectively." (Judgment of the Supreme Court of Spain, Oct. 29, 1857.)

Although this doctrine does not refer expressly to family trusts, we regard it as applicable to the family trust annexed to
the mayorazgo under consideration, as the same reason exists therefor. Ubi eadem ratio ibi eadem juris dispositio.

Counsel for defendants allege that the properties of this foundation passed into the hands of the heir, Jose Victoriano
Tuason, completely free, one-half by testamentary inheritance and the other half by virtue of article 2 of the Disentailing
Law. This, however, was not the will of the testator, Don Jose Severo Tuason, nor the will of his successors, all of whom
respected the mayorazgo and held it as subsisting de facto. In no event could the properties pass into the hands of the
heir Jose Victoriano Tuason completely free. It was necessary to preserve them intact until they were appraised and the
fifth part thereof had been segregated for distribution among the recipients of the revenues and their immediate
successors, in accordance with the provisions of article 4 of the statute.

It is a fact that the trust subsisted and still subsists. The successive possessors of the entail have preserved and preserve
the properties of the mayorazgo respecting and distributing the fifth of the revenue among the descendants of the
younger children of the founder.

But the entail could not and cannot continue perpetually. Its abolition was decreed by the statute as of the 1st day of
March, 1864. Its perpetual survival would be contrary, not only to the Disentailing Law of October 11, 1820, but also the
Civil Code in force which, under articles 781 and 785, paragraph 2, positively prohibits perpetual entails.
If up to the present time the entail in question subsists, this has been because the interested parties have been
maintaining it without proceeding to the appraisal and distribution of the entailed properties, as required by articles 2
and 4 of the Disentailing Law; and in accordance with the doctrine announced by the Supreme Court of Spain on
October 29, 1857, above cited, the properties of this mayorazgo, preserved de facto by the interested parties as
entailed, legally retain this character for the purposes of their partition, which must be effected in accordance with the
statute of October 11, 1820.

From what has been said it follows that since March 1, 1864, the date upon which the said Disentailing Law came into
force in the Philippine Islands, the successive possessors of the properties of this mayorazgo constituted themselves
trustees, charged with the administration and preservation of the said properties and the distribution of the fifth of the
revenue among the descendants of the younger children of the founder. Consequently, after the entail was abolished,
one-half of the four-fifths of the properties of the mayorazgo continued subject to the trust in favor of its beneficiaries,
the heirs of Jose Victoriano Tuason, who was the one called to succeed immediately to the mayorazgo on the date of its
disentailment (article 2, Statute), and the fifth of the said properties in favor of the beneficiaries, the recipients of the
fifth of the revenue in accordance with the foundation.

Summing up the effects produced with respect to this mayorazgo by the Disentailing Law on the one hand, and the
conduct of the interested parties on the other, we may say first, that the trust of the naked ownership instituted in favor
of the descendants of the founder indefinitely was abolished, in consequence of the disentailment; and second, that the
trust of the usufruct of the properties became converted into a trust of the properties themselves, the beneficiaries
being the same, but as owners; that is to say, the first-born successor as to one-half of four-fifths of the said properties,
and the descendants of the younger children of the founder with respect to the remaining fifth.

In this case we are only concerned with the fifth of the properties which plaintiffs claim as descendants of four of the
eight younger children of the founder.

Hereinafter we shall determine the persons entitled to participate in the fifth of the properties of this foundation and to
what extent.

LEGAL OBSTACLES ALLEGED

In addition to the arguments mentioned heretofore, counsel for defendants interpose as obstacles to the action of
plaintiffs the registration of the title to the properties of the mayorazgo in favor of the defendants, mentioned in
paragraph 11 of the first special defense, under Act No. 496, and the prescription of this action. The defendants, Dona
Paz Tuason de Gonzalez, Dona Consuelo Tuason de Quimson, Don Juan Tuason and Dona Albina Tuason interpose as a
defense to this action the contention that the plaintiffs filed no claim whatever in the proceedings had upon the
testamentary estate of Don Juan Jose Tuason de la Paz, the father of the said defendants, which testamentary
proceedings were finally disposed of and filed June 25, 1920.

If, as we have found and decided, the successive possessors of the properties of this mayorazgo were and have been
mere trustees of the said properties, holding them in trust for the benefit of the beneficiaries, part of whom are the
recipients of the fifth of the revenues, and their descendants, the registration of the title to said properties under Act
No. 496 in favor of the said defendants must be deemed to have been effected for the benefit of the beneficiaries of
said properties, part of whom are the present plaintiffs. The doctrine established by this court in the case of Severino v.
Severino (44 Phil., 343), is applicable to this feature of the case.

Although the plaintiffs endeavored to demonstrate that the said defendants registered the title by fraud, it is our
opinion that the alleged fraud has not been proven in this action. Nevertheless, the existence of fraud is unnecessary to
warrant the declaration that registration of the title under Act No. 496 is not a legal obstacle to this action brought by
plaintiffs, and the adjudication in favor of those among them who are entitled thereto of the portion pertaining to them
of the properties so registered. It was said in the case of Gilbert v. Hewetson (79 Minn., 326), cited with approval in the
case of Severino v. Severino, supra:jgc:chanrobles.com.ph

"‘A receiver, trustee attorney, agent, or any other person occupying fiduciary relations respecting property or persons, is
utterly disabled from acquiring for his own benefit the property committed to his custody for management. This rule is
entirely independent of the fact whether any fraud has intervened. No fraud in fact need be shown, and no excuse will
be heard from the trustee.’" (Italics ours.)

With respect to the plea of prescription, counsel for defendants contend that inasmuch as plaintiffs, prior to the filing of
the present complaint, had made no effort to enforce their rights since the 1st day of March, 1864, their action is barred.
But from the records it appears that up to the year 1922 the defendants have been recognizing in the entries in their
books, and in deeds, such as Exhibits 6 and 7, signed by Don Augusto Tuason de la Paz, as grantee, the rights of the
descendants of the younger children of the founder to the fifth of the revenue, and therefore the trust which this charge
implies; furthermore, said defendants made payments on account of the fifth of the revenue. These acts of recognition
and payments, made during the said period of time, prevent the operation of prescription. (Section 50, Code of Civil
Procedure.)

Furthermore, this being a case which deals with a trust which subsisted from the time of its foundation and by virtue
thereof up to March 1, 1864, and thereafter down to the present time by the express will of the present parties, the
defense of prescription cannot be entertained. By virtue of the said trust the possession of the said defendants could not
be regarded as a basis for an acquisitive prescription in their favor against the plaintiffs because such possession has not
been nor is it under claim of ownership, but a title held in the name and on behalf of the beneficiaries, some of whom
are the plaintiffs in general. For this reason the defense of prescription cannot be enforced between the trustee and the
beneficiaries while the trust relations continue, as was impliedly held in the case of the Government of the Philippine
Islands v. Abadilla (46 Phil., 642).

It is alleged by counsel for the defendants that in accordance with the stipulation of facts none of the plaintiffs, nor their
predecessors, with the exception of those mentioned in paragraph 2 of the counterclaim, received any pensions
whatever as a charge against the revenues of the property of the entail for the ten years prior to the commencement of
this action, and that for this reason the action has prescribed. We have already stated that with respect to trusts, such as
the one here in question, the defense of prescription cannot be maintained. From the 1st of March, 1864, the right of
the recipients of the fifth of the revenue, and their descendants, was not and is not limited to the receipt of the fifth of
the revenue, but, as we have said, includes a participation in the ownership of one-fifth of the properties of the
mayorazgo, and this right, by reason of the subsisting trust, has not prescribed and is imprescriptible.

It is finally contended by the defendant heirs of the late Don Jose Tuason y de la Paz that the plaintiffs did not file any
claim whatever in the proceedings had upon the testamentary estate of the said deceased, which said proceedings have
been now finally ended. As the properties here in question constitute a trust estate, such proceedings cannot affect
them, at least as to a fifth part, because such properties were not and could not be the property of the said testator,
who therefore could not legally transmit them to his heirs. If the latter have already entered upon the enjoyment of
their various respective portions and have acquired a possession adverse to the rights of the plaintiffs, this adverse
possession cannot have legally commenced before the 19th of July, 1919, when the court approved the partition of the
properties of the said testamentary estate (paragraph 4, fourth special defense). And even with respect to prescription,
the time which has transpired between the 19th of July, 1919, and the 22d of August, 1923, when this action was
commenced, is merely a little over four years, an insufficient time for the acquisitive prescription of real property.

Consequently, the contention of the defendants in their special defenses are not sufficient to destroy plaintiffs’ action or
to prevent the exercise thereof.

PERSONS ENTITLED TO THE REMEDY

The recipients of the fifth of the revenues are indicated in the sixth clause of the instrument of foundation, the text of
which we again transcribe:jgc:chanrobles.com.ph

"It shall be his duty to set apart one-fifth of the net revenue derived from the entail each year, and that one-fifth part
shall be divided into eight parts, giving one to each of my eight children, and in their absence, to my grandchildren, but
upon the understanding that if one or more of my children should die without succession, the part belonging to them
shall be distributed among my grandchildren and other descendants of mine according to their needs and as prudence
may dictate to him so that, when the time arrives that none of my children or grandchildren are alive, it shall then be
always understood that said fifth part shall be applied to all those of my descendants who are poor, the apportionment
to be made by him prudently according to their needs and therefore the possessor of the entail is hereby charged to
discharge this duty with conscientious scruple."cralaw virtua1aw library

One of the issues between the parties is whether plaintiffs are or are not included in the word "grandchildren" (nietos)
employed ir the clause which has just been transcribed.

The precedent of the word "grandchildren" (nietos) is the Latin word nepos, which is defined in the Latin-Spanish
Etymological Dictionary, by Raimundo de Miguel, as follows:jgc:chanrobles.com.ph

"Nepos, otis . . Cic. Nieto; . . . Nepos ex filia, Cic. nieto (son of the daughter), (plural) Virgil, posterity,
descendants."cralaw virtua1aw library

As we have observed in this explanation, in order to give the word "nepos" the meaning of "the son of the daughter,"
Cicero added to it the explanatory phrase "ex filia."cralaw virtua1aw library

The technical meaning of the word in the Roman Law coincides with this literal acceptation, as may be observed in Title
19, Book 2 of the Institutions of Justiniani (D. Justiniani Institutionum, by Gomez de la Serna, vol. 1, p. 595, 6th edition),
where it is said: "Sui anten et necessarii haeredes sunt, veluti filius filiave, NEPOS NEPTISVE EX FILIO," etc.

Thus we see that in order to express the idea that the word "nieto" or "nieta" ("nepos neptisve") refers to a "son or a
daughter of a son," it was necessary to add the explanatory phrase "ex filio" (of the son). Consequently, without this
explanatory phrase the meaning of the word "nepos" (grandchild) would be, in the broad acceptation that which was
given it by Virgil, namely; posterity, descendants.

This broad legal acceptation was carried into the Spanish language when the words "nepos" and "nepotis" were
hispanicized by being transformed into the word "nieto." Therefore, Alcubilla, in defining this word in his work,
"Diccionario de la Legislacion Española," (vol. 8, p. 373) says:jgc:chanrobles.com.ph

"Nieto (grandson). The son of the son. Used with respect to the grandfather. The term is also used by extension to
include the word descendant in a given line to the third, fourth and successive generations."cralaw virtua1aw library

It is true that in the clause of the instrument which we have been considering, the word "descendants" is also employed.
But this word, taking into consideration the provisions of the deed of foundation must be understood as referring to the
descendants of the first-born son who was the possessor of the mayorazgo.

As may be inferred from the provisions of this foundation, considered as a whole, the intention of the founder was to
give to his descendants the usufruct of the properties of the mayorazgo, four-fifths to the first-born possessor and his
successors, and one-fifth to the eight younger children and their successors.

We can see no sufficient reason for restricting here the meaning of the word "nietos" (grandchildren) to sons of sons
alone. From the instrument of foundation as a whole it does not appear that such was the intention of the founder. We
can see no reason why he should have limited the enjoyment of the fifth of the revenue to his eight children and to the
children of the latter without extending it to their subsequent descendants, when, in dealing with the four-fifths of the
revenue he extended the enjoyment thereof not only to his first-born son, or to his grandson, the son and successor of
the former, but also to subsequent first-born children.

We do not find in the instrument of foundation, or elsewhere, any reason whatever for believing that in addition o the
striking inequality with respect to the apportionment of the usufruct (four-fifths for one child and one-fifth for eight
children) it was the purpose of the founder to still further limit the grant to his eight children to their children as to the
receipt of the fifth of the revenue, when in the instrument itself (seventeenth clause) the founder provided that in case
the male line of the descendants of his first born son, Don Vicente Dolores Tuason, should become extinct, the
mayorazgo should then revert to the eldest son of his deceased son, Don Santos Tuason (who is one of the younger
children), and that following the same order the descendants of his other male children (the other younger children)
should take by priority of birth, and that in the event of the absence of male heirs of the male line, the heirs of the
female line should succeed, and failing these, the possession of the mayorazgo by order of birth should devolve upon
the descendants of his children (his younger children).
If the descendants of the younger children, subsequent to the grandchildren of the founder, are granted under certain
circumstances the right to possess the mayorazgo itself, with all its properties, we do not see how it can be said that
these descendants, subsequent to grandchildren, the sons of sons, were prohibited from receiving a fifth of the
revenues of said properties.

It is our understanding that the intention of the founder was not to restrict the grant of the usufruct of the fifth of the
revenue by limiting it to a certain number of generations of the younger children, but that he intended to extend it to all
of the descendants of the latter. If this is so we should apply to the case the rule of law of the Partidas (Rule 28, Title 34,
7th Partida), which says: "Privilegia recipiunt largurn interpretat1onem voluntati consonan concedentis." (Privileges are
to be interpreted with liberality in accordance with the will of him who grants them.)

Furthermore, that the present plaintiffs are entitled to receive the fifth of the revenues has been repeatedly recognized
by the defendants when they purchased, in 1905, from Don Jose Rocha y Ruiz, and in 1916 from Doña Remedios Aragon
y Rocha their respective participations in the fifth of the revenue, according to paragraph 16 of the stipulation of facts,
and when in the years 1917 to 1921 the said defendants delivered to Don Antonio Maria Barretto y Rocha, and to Don
Santiago, Don Julio and Don Andres Rocha y Ruiz Delgado, and their sister, Doña Rosario; and in the years 1917 to 1922,
to Doña Isabel, Doña Enriqueta, Doña Carmen, Don Antonio, Don Alfredo and Don Clodoaldo Rocha y Pereyra, Don
Francisco Beech y Rojo, Don Ciriaco, Don Cayetano, Don Pablo Leon and Don Tomas Tuason, and to the minors Doña
Consuelo, Don Juan, Doña Rosario and Doña Carmen Tuason, and to Doña Victoria Rufina, Doña Ana Consolacion Tuason
and Doña Asuncion Romana Tuason widow of Caballero, their respective participations in the fifth of the revenue, as
appears from the cross-complaint of the defendants, admitted in paragraph 8 of the stipulation of facts.

And it appears that the said Don Jose Rocha y Ruiz was the son of Don Lorenzo Rocha, a grandson, in turn, of Doña
Gregoria N. Tuason (Exhibit 6 and paragraphs 2 and 16 of the stipulation of facts); that Doña Remedios Aragon y Rocha is
a relative of the founder (Exhibit 7, admitted in paragraph 16 of the stipulation of facts); and that the said recipients of
the fifth of the revenue from the year 1917 to 1921 and from the year 1917 to 1922, are all descendants of
grandchildren of the younger children of the founder. (Paragraphs 2 to 30, admitted in paragraph 1 of the stipulation of
facts.)

But even supposing for a moment that the word "nietos" (grandchildren) used in the instrument of foundation now
before us, did not include these plaintiffs, we must keep in mind that the Disentailing Law of October 11, 1820, when it
became operative in the Philippines, on March 1, 1864, created and adjudicated in favor of the then recipients of the
fifth of the revenue of this mayorazgo the right of ownership of one-half of the fifth of these properties under article 4 of
the said Disentailing Law, and vested the ownership of the other one-half in their immediate successors.

Consequently, even supposing that the receipt of such fifth of the revenue were limited to grandsons, the sons of sons
of the younger children of the founder, and supposing also that the recipients of the said fifth of the revenues on March
1, 1864, were grandchildren, sons of sons of the younger children of the founder, that is, the last recipients according to
the restrictive hypothesis, notwithstanding all this, the law, when giving to these recipients of the revenue a fifth of the
property, reserved one-half thereof for the immediate successors, who are the subsequent descendants of said
grandchildren, sons of sons of the younger children of the-founder.

And such recipients of the fifth, whoever they may have been on March 1, 1861 for they have not been identified in the
record— did not dispose of the participations which the law granted them in and to the fifth of the properties of this
mayorazgo, and at their death their said participations in the property passed by operation of law to their heirs. On the
other hand, their immediate successors— the record does not show who they were in whose favor the ownership of the
other one-half of the fifth of the properties was reserved, did not dispose of their participation, which, when said
immediate successors died, also passed to their heirs by operation of law.

And according to the facts admitted in this proceeding, the plaintiffs must be and are such heirs, both of the then
recipients and of their immediate successors, for they are he descendants in direct line of both of them because they are
descendants of the younger children of the founder.

The plaintiffs consequently are entitled to participate in the fifth of the properties of this mayorazgo, whether they be
considered or not as included in the word "grandchildren" employed in the instrument of foundation. In the first case,
because they are descendants in direct line of four of the younger children, and in the second place because they are the
descendants of the recipients of the fifth of the revenue on March 1, 1864, and the immediate successors of the latter.

Passing to the amount of the participation which is due them respectively, for the purpose of determining this point we
must have regard to the intention of the founder, as it is expressed in the instrument creating the mayorazgo. It was his
will that the fifth of the revenue should be divided into eight parts, and that to each of his children, other than his first-
born, one part should be given. Upon the death of each of these children, by virtue of the provisions of the instrument
of foundation, and by operation of law, their right to an eight part of the revenue which they received during their
lifetime was transmitted to their heirs. That is, each of these eight portions of the fifth of the revenue was transmitted
from succession to succession, within the stirps of each of the eight younger children who died leaving succession. The
heirs of a younger son or daughter could not legally participate in the eight part corresponding to another stirps, as long
as heirs in the direct line of this stirps survived; that is to say, each of the eight portions of the fifth, except those
corresponding to younger children born without succession. The heirs of a younger child could not legally participate in
the eight corresponding to another stirps, while heirs of this stirps in the direct line survive. That is to say, each one of
the said eighth parts of the fifth, except those corresponding to the younger children dying without succession, was
preserved and transmitted from generation to generation within each respective stirps.

This plan of division of participation, based upon the will of the founder and the precepts of the law, is that which in our
judgment must continue to prevail, and is that which we shall follow in determining the proportion which corresponds
to the plaintiffs in the half of the fifth of the properties of this foundation.

Of the eight younger children four died without succession and the other four are the descendants of the plaintiffs in
this cause. Hence, four of the eight portions, that is, one-half of the fifth of the properties of this foundation, belong to
the plaintiffs herein under the plan of division which has just been indicated. The other four portions, that is, the
remaining one-half of the said fifth, which would have corresponded to the stirps of the other four younger children, if
they had died leaving succession, accrue, so to speak, both to the descendants of the younger children leaving
succession and to the other descendants of the founder.

The distribution of this accretion is made in obedience to a plan distinct from that above indicated, because the founder,
foreseeing the contingency, did not prescribe a quota for each stirps of his younger children, but ordered that it be
delivered to descendants of both classes, without distinction of lines or stirps. Consequently, this one-half in accretion
should be distributed among the descendants of the founder in general, who are the plaintiffs and some of the
defendants, but bearing in mind the different rights with which each heir participates, by reason of the greater or lesser
proximity of his relationship to the founder, for the purpose of determining if he is to inherit per capita or per stirpes.
We say some of the defendants, because with the exception of the ten mentioned in paragraph 5 of the complaint, the
other defendants are either persons whose relationship has not been determined (paragraph 6 of the complaint) or
have refused to become parties to this action (paragraph 30, of the complaint).

From what has been said it follows that one-half of the fifth of the properties corresponding to the younger sons leaving
succession, four-fortieth parts (4/40) of the whole of the properties of this foundation must be divided into four equal
portions, because one portion, or one-fortieth part (1/40) corresponds to each stirps of the said four younger children.
The other one-half of the said fifth, that is to say, the other four-fortieth parts (4/40) of the whole of the properties of
this foundation must be distributed in general among the plaintiffs and some of the defendants, taking into
consideration the circumstances of their respective heirships.

These properties may be considered as having been appraised in accordance with provisions of article 4 of the
Disentailing Law, inasmuch as the parties, in paragraph 9 of the stipulation of facts, have agreed that for all purposes
relating to the decision of this case, the total value of the properties of this foundation is five million six hundred
thousand one hundred sixty-eight pesos (5,600,168).

The one-half of the fifth, or the four-fortieth parts (4/40) which are to be distributed equally between the stirps of the
four younger sons leaving descendants, is equivalent, according to that valuation of the properties, to five hundred sixty
thousand sixteen and 80/100 pesos (P560,016.80), or one hundred forty thousand four and 20/100 pesos (P140,004.20),
which is one-fortieth part (1/40) for each stirps.

Of said four stirpes that of the younger son, Don Felix Bolois Tuason is represented among the plaintiffs by Don Francisco
Beech y Rojo, together with his aunts (cousins of his mother Doña Pilar Roio y Tuason, a great granddaughter of the said
younger son), and therefore he inherits in representation of his said mother; by Doña Teodora Benitez Tuason de Reyes;
by Doña Romana Fuentes de Salgado, and by Dona Urbana Francisco de Guevara. These three are great granddaughters
of the said younger son, Don Felix Bolois Tuason (paragraphs 12, 16, 23, 25 of the complaint, admitted in paragraph 1 of
the stipulation of facts). To each one of these four heirs corresponds a fourth part of the fortieth part above-mentioned,
of the assessed value of thirty-five thousand one and 05/100 pesos (P35,001.05).

The stirps of Doña Gregoria M. Tuason is represented among the plaintiffs by Don Antonio Maria Barretto y Rocha; by
Doña Guadalupe Angelica Barretto, widow of Balbas; by Doña Isabel Rocha Pereyra; by Doña Enriqueta Rocha Pereyra;
by Don Alfredo Rocha Pereyra; by Don Clodoaldo Rocha Pereyra; by Doña Carmen Rocha Pereyra de Beech; by Don
Antonio Rocha Pereyra; by Don Santiago Rocha y Ruiz Delgado; by Dona Rosario Rocha y Ruiz Delgado de Larroquete; by
Don Julio Rocha y Ruiz Delgado; by Don Andres Rocha y Ruiz Delgado; by Don Alfonso Rocha Uceda; by Don Angel Rocha
Rivera; by Doña Araceli Rocha Rivera; and by Doña Sara Rocha Rivera (paragraphs 7 to 11 of the complaint, admitted by
paragraph 1 of the stipulation of facts.) All these said heirs of the stirps of Dona Gregoria M. Tuason, sixteen in number,
are great grandchildren of the said younger daughter, Doña Gregoria. To each one of them corresponds a sixteenth part
of a fortieth part of the whole of the properties, or one six-hundred-fortieth part (1/640) of the properties, or eight
thousand seven hundred fifty pesos and twenty-seven and one-fourth centavos (P8,750.27 and centavo) of the total
assessed value.

The stirps of Don Pablo Tuason is represented among the plaintiffs by heirs who participate in their own right and by
heirs who claim by representation because they inherit with relatives of the generation of the same degree as their
proximate ascendants. Among the former are Dona Ciriaca Tuason; Don Cayetano Tuason; Don Pablo Leon Tuason; Don
Tomas Mercado; Doña Victoria Rufina Tuason; Doña Ana Consolacion Tuason; and Doña Asuncion Romana Tuason,
widow of Caballero. Among the heirs who take by representation are Don Gaston O’Farrell, who represents his deceased
father, Don Jose O’Farrell, Doña Remedios Ayala de Reyes and Doña Concepcion Ayala, widow of Beltran, who represent
their deceased mother, Doña Maria O’Farrell de Ayala; the minors Doña Consuelo, Don Juan, Doña Rosario and Doña
Carmen Tuason y Rosello, who inherit in representation of their deceased father, Don Juan Tuason; and Don Vicente L.
Legarda who represents his deceased father Don Miguel Legarda Lerma (paragraphs 13 to 15, 20 to 22, and 24 of the
complaint, admitted in paragraph 1 of the stipulation of facts). These heirs who inherit in their own right; together with
the persons represented by those who inherit by representation, make a total of eleven great grandchildren of the said
younger son Don Pablo Tuason. To each of said heirs claiming in their own right and the persons represented by the
others, corresponds an eleventh part of a fortieth part of the total of the properties, namely, one four-hundred-and-
fortieth part (y440) of the properties, or twelve thousand seven hundred twenty-seven pesos and sixty-five centavos and
five elevenths of a centavo (P12,727.65 and 5/11ths of a centavo) of the total assessed value.

The stirps of Don Santos Luciano Tuason is represented among the plaintiffs by Doña Cirila Tuason, widow of Calvo; by
Doña Mariana Aurelia Tuason; and by Don Santiago Alvarez. These three are all of the same degree of relationship to the
said younger son, whose great great grandchildren they are (paragraphs 17 to 19 of the complaint, admitted in
paragraph 1 of the stipulation of facts). To each one of these three heirs corresponds one-third of the fortieth part of the
total of the properties, or one one-hundred and twentieth part (1/120) of the properties, or forty-six thousand six
hundred sixty-eight pesos and six centavos and two-thirds of a centavo (P46,668.06 and 2/3 of a centavo) of the total
appraised value.

Of the other one-half of the fifth of these properties, and which is to be distributed in general, as we have already said,
between plaintiffs and some of the defendants, and which represents four-fortieth parts (4/40), or P560,016.80,
according to the appraised value, the heirs are the said plaintiffs, who are thirty-three in number altogether, including
those who inherit in their own right and those who are to inherit by representation, plus ten defendants whose
relationship to the founder is shown by the records and who are parties to this action, their names being: Don Augusto
Huberto Tuason y de la Paz, Doña Maria Soterranea Tuason y de la Paz, Don Demeterio Asuncion Tuason y de la Paz, Don
Mariano Severo Tuason y de la Paz, Doña Teresa Eriberta Tuason y de la Paz, Don Angel Ordonez (alias Angel M. Tuason),
Don Antonio M. Tuason, Doña Paz Tuason de Gonzalez, Doña Consuelo Tuason de Quimson and Doña Rosario Gonzalez,
widow of Tuason. (Paragraphs 5 and 26 of the complaint, admitted in paragraph 1 of the stipulation of facts.) That is to
say, this one-half of the fifth is to be divided into one hundred forty-three equal parts, each portion being four one-
thousand-seven-hundred and twentieth parts (4/1720) or one four-hundred-and-thirtieth part (1/430) of the whole of
the properties, or thirteen thousand twenty-three pesos and sixty-four centavos and twenty-eighth forty-three of a
centavo (P13,023.64 and 28/43 of a centavo) of the appraised value for each heir inheriting in his own right, and for
each person represented by the heirs who inherit by representation.
The plaintiffs who participate with the defendants in the half of the fifth of the properties are four grandsons who share
with their uncles who are great great grandsons. These four grandsons who inherit by representation are the following:
Don Gaston O’Farrell, Don Vicente L. Legarda and Don Santiago Alvarez, who represent respectively their deceased
fathers, for which reason their participations are entire units; the sisters Doña Remedios and Doña Concepcion Ayala,
who participate jointly in one unit; so also the minors Doña Consuelo, Don Juan, Doña Rosario and Doña Carmen Tuason
y Rosello, who also receive jointly a single participation; and in like manner the sisters Doña Cirila and Doña Martina
Aurelia Tuason also participate jointly in one unit.

With respect to these three descendants of the younger son, Don Santos Luciano, the peculiarity exists that within their
stirps the three heirs receives equally, as all are of equal degree of relationship with their common ancestor, the said
younger son. But when they concur with the other codescendants of the founder, their shares change because they
inherit by representation, as they concur with uncles, cousins of their fathers, the result being that in such case the
participation of Don Santiago Alvarez is entire, he being the sole representative of his father, while that of the two
sisters Doña Cirila and Doña Martina is one-half for each, because both of them represent their father.

Don Jose Rocha y Ruiz and Doña Remedios Aragon y Rocha, also descendants of younger sons, do not participate in the
fifth of the properties because in 1905 and 1916 they respectively sold their participations to the defendants. For this
reason their names were not taken into consideration in the distribution of the fifth of the properties in the preceding
paragraphs.

Among the petitions of the complaint in this case is one to the effect that the defendants, Augusto, Demetrio, Mariano,
Maria Soterranea and Teresa Tuason y de la Paz, and Messrs. Antonio Ma. Tuason, Angel Ordonez (alias Angel M.
Tuason) be required to render an account of the receipts, expenditures and profits of this entail from February 4, 1874,
to January 1, 1922, and deliver to the plaintiffs the part corresponding to the latter in the net revenue produced by the
said properties, deducting that which each of the plaintiffs may have received prior to the commencement of this action.

With regard to these accounts the following agreement was made in the stipulation of facts:chanrob1es virtual 1aw
library

x              x              x

"10. That the receipts and expenses of the properties on Calle Rosario are those which appear in the statement
hereunto attached, marked Exhibit 2, and that said statement is taken from the books of the defendants.

"11. That the receipts and expenditures of the Haciendas Santa Mesa-Diliman and Mariquina are also those which
appear in the annexed statement, marked Exhibit 3, which is also taken from the books of the defendants.

"12. That the stipulation contained in the two preceding paragraphs shall not prevent the parties plaintiffs from
impugning, as incorrectly charged, any of the items which appear in the said two statements."cralaw virtua1aw library

The accounts mentioned include those of all the properties of this foundation, for the properties mentioned in the
paragraphs which have been transcribed above are those which constitute the properties entailed by the founder, Don
Antonio Tuason, as alleged in paragraph 31 of the complaint, admitted in paragraph 1 of said stipulation of facts; and the
said accounts, Exhibits 2 and 3, correspond to the period comprised between the 1st day of January, 1904, and the 31st
of December, 1922.

None of the items contained in these accounts having been successfully impugned, they must be considered, we shall
consider them, as correct by virtue of the stipulation above inserted.

These accounts beginning January 1, 1904, and which are presumed to be the consequence and continuation of those of
previous years, having been admitted, it is our understanding that plaintiffs cannot now legally claim an accounting for
the time prior to the 1st of January, 1904.
They are, however, entitled to a liquidation of the accounts as to the expenses and revenues of said properties, and to
receive the corresponding revenue from the 1st of January, 1923, until the defendants shall deliver to them their
respective participations in the properties of this foundation.

Consequently, the plaintiffs are entitled to receive their respective participations in the fifth of the revenue
corresponding to the period which begins from the 1st of January, 1904, until the 31st of December, 1922, in accordance
with the accounts which appear in Exhibits 2 and 3.

Plaintiffs are also entitled to the rendition of an account of the income and products of the said properties from the 1st
of January, 1923, until such time as their participations in the properties of this foundation are delivered to them, as also
to receive that which pertains to them of the fifth of the revenues of said properties during said period beginning with
the 1st of January, 1923.

JUDGMENT

By virtue of the foregoing considerations and conclusions it is hereby ordered and decreed that the decision of the Court
of First Instance of Manila rendered herein be and it is reversed, and it is declared that the plaintiffs are entitled to
participate in a fifth of the properties of this foundation and its revenues in the proportions and amounts hereinafter
stated, and that the registration of the title to the said properties under Act No. 496 is not an impediment to its division
and the transfer to the plaintiffs, as beneficiaries, of the portions which we shall determine; wherefore it is
ordered:chanrob1es virtual 1aw library

First. That the defendants, Don Augusto, Don Demetrio, Don Mariano, Doña Maria Soterranea and Doña Teresa Tuason
y de la Paz and Don Antonio Ma. Tuason, Don Angel Ordonez (alias Angel M. Tuason), with the intervention of the
plaintiffs, partition the properties of the foundation which is the subject-matter of the present cause, and deliver the
respective participations, or their value, to the persons and in accordance with the amounts to be specified hereafter, to
wit:chanrob1es virtual 1aw library

(a) To each of the four plaintiffs, Don Francisco Beech y Rojo, Dona Teodora Benitez Tuason de Reyes, Doña Romana
Fuentes de Salgado and Doña Urbana Francisco de Guevara, a fourth of a fortieth part of all the properties of this
foundation, or its respective appraised value of thirty- five thousand one pesos and five centavos (35,001.05) as their
participation in the one-half of the fifth of the properties in conjunction with their codescendants of the younger sons;
and one-forty-third part of the other one-half of the fifth or four-fortieth parts of the said properties, or its appraised
value of thirteen thousand twenty-three pesos and sixty four centavos and twenty-eight forty-thirds of a centavo
(P13,023.64 and 28/43 of a centavo) as their participation in the other one-half of the fifth of the properties in
conjunction with the other descendants of the founder.

(b) To each of the sixteen plaintiffs, Don Antonio Maria Barretto y Rocha, Doña Guadalupe Angelica Barretto, widow of
Balbas, Doña Isabel Rocha Pereyra, Doña Enriqueta Rocha Pereyra, Don Alfredo Rocha Pereyra, Don Clodoaldo Rocha
Pereyra, Doña Carmen Rocha Pereyra de Beech, Don Antonio Rocha Pereyra, Don Santiago Rocha y Ruiz Delgaldo, Doña
Rosario Rocha y Ruiz Delgado de Larroquete, Don Julio Rocha y Ruiz Delgado, Don Andres Rocha y Ruiz Delgado, Don
Alfonso Rocha Uceda, Don Angel Rocha Rivera, Doña Araceli Rocha Rivera and Doña Sara Rocha Rivera, one-sixteenth of
a fortieth part of all the properties of this foundation, or its appraised value of eight thousand seven hundred fifty pesos
and twenty-six centavos and one-fourth of a centavo (P8,750.26 and l/4 of a centavo); and furthermore a forty-third part
of the other half of the fifth of said properties, or its appraised value of thirteen thousand twenty three pesos and sixty
four centavos and twenty-eight forty-thirds of a centavo (P13,023.64 and 28/43 of a centavo), the adjudication being
made upon the same grounds as the adjudications in the preceding paragraph.

(c) To each of the nine plaintiffs Doña Ciriaca Tuason, Don Cayetano Tuason, Don Pablo Tuason, Don Tomas Mercado,
Doña Victoria Rufina Tuason, Doña Ana Consolacion Tuason, Doña Asuncion Romana Tuason, widow of Caballero, Don
Gaston O’Farrell and Don Vicente L. Legarda one-tenth of a fortieth part of all the properties of this foundation, or its
appraised value of twelve thousand seven hundred twenty-seven pesos and sixty-five centavos and five elevenths of a
centavo (P12,727.65 and 5/11 of a centavo); and furthermore a forty-third part of the other half of the fifth of said
properties, or its appraised value of thirteen thousand twenty-three pesos and sixty-four centavos and twenty-eight
forty-thirds of a centavo (P13,023.64 and 28/43 of a centavo), upon the same two grounds as those which constitute the
basis of the adjudications made in paragraph A of this judgment.

(d) Jointly to the two plaintiffs, Dona Remedios Ayala de Reyes and Dona Concepcion Ayala, widow of Beltran, in equal
parts, also one-tenth (for the two, not one for each one) of a fortieth part of all the properties of this foundation, or its
appraised value of twelve thousand seven hundred twenty-seven pesos and sixty-seven centavos and three elevenths of
a centavo (P12,727.67 and 3/11 of a centavo); and also a forty-third part (for the said two plaintiffs) of the other half of
the fifth of said properties, or its appraised value of thirteen thousand twenty-three pesos and sixty-four centavos and
twenty-eight forty-thirds of centavo (P13,023.64 and 28/13 of a centavo) upon the same two grounds as those which
constitute the basis of the adjudications made in paragraph A of the present judgment.

(e) Jointly to the four minors, Dona Consuelo, Don Juan, Dona Rosario and Dona Carmen Tuason y Rosello, in equal
parts, one-tenth (for the four, not for each) of a fortieth part of all the properties of this foundation, or its appraised
value of twelve thousand seven hundred twenty-seven pesos and sixty-five centavos and five elevenths of a centavo
(P12,727.65 and 5/11 of a centavo); and also a forty-third part (for the said four plaintiffs) of the other half of the fifth of
said properties, or its appraised value of thirteen thousand twenty-three pesos and sixty-four centavos and twenty-
eight-forty-thirds of a centavo (P13,023.64 and 28/43 of a centavo), upon the same two grounds as those which
constitute the basis of the adjudications made in paragraph A of this judgment.

(f) To each of the three plaintiffs, Dona Cirila Tuason, widow of Calvo, Dona Martina Aurelia Tuason and Don Santiago
Alvarez, one-third of a fortieth part of the whole of the properties of this foundation, or its appraised value of forty-six
thousand s x hundred sixty-eight pesos and six centavos and two thirds of a centavo (P46,668.08 and 2/3 of a centavo);
and furthermore to the two sisters Doña Cirila Tuason, widow of Calvo, and Doña Martina Aurelia Tuason, jointly, a
forty-third part of the other half of the fifth of said properties, or its appraised value of thirteen thousand twenty-three
pesos and sixty-four centavos and twenty-eight forty-thirds of a centavo (P13,023.64 and 28/43 of a centavo); and to
Don Santiago Alvarez a forty- third of the said other half of the fifth of said properties, or its appraised value of thirteen
thousand twenty-three pesos and sixty-four centavos and twenty-eight forty-thirds of a centavo (P13,023.64 and 28/43
of a centavo), all on the same two grounds as those which constitute the basis of the adjudications made in paragraph A
of the present judgment.

Second. That the defendants deliver to the plaintiffs named in paragraphs A, B, C, D, E and F of the present judgment
and in the same proportion established for the distribution made in said paragraphs A, B, C, D, E and in the first part of
paragraph F, the portions which respectively pertain to the said plaintiffs of the fifth of the revenues of this mayorazgo,
as shown by Exhibits 2 and 3, from the 1st of January, 1904, to the 31st of. December, 1922: Provided, That the plaintiffs
mentioned in paragraph 2 of the cross-complaint of the defendants have already received their share of the revenue,
and shall not receive it again for the years specified in said counter-claim.

Third. That the defendants render an account of the revenues of the properties of this entail from January 1, 1923, until
they deliver to plaintiffs their respective participations in said properties, in accordance with paragraphs A, B, C, D, E and
F of the present dispositive part, and that they deliver to the plaintiffs named in said paragraphs, in the proportion
therein specified, their participations in the fifth of the revenues of said properties corresponding to the said period of
time following January 1, 1923.

Fourth. That the partition of the real estate herein decreed shall be carried out in accordance with the provisions of
section 184 of the Code of Civil Procedure, and section 84 of Act No. 496 by causing a technical description to be made
of the portions partitioned, and by the execution by the defendants of the proper deeds of conveyance and the delivery
to the registrar of the corresponding certificates of title for the issuance of new certificates of title in favor of the
defendants.

Fifth. That in case the parties should not agree as to the manner in which such partition is to be effected, the court
below, in this proceeding, shall appoint commissioners to that effect, all in accordance with the provisions of section 184
of the Code of Civil Procedure, and other applicable provisions of the Code of Civil Procedure.

No judgment will be entered as to costs. So ordered.

Avanceña, C.J., Street, Malcolm, Villamor, Ostrand, Johns, and Villa-Real, JJ., concur.

RESOLUTION ON MOTION OF RECONSIDERATION

October 5. 1926

ROMUALDEZ, J p:

Upon examination of the motion for reconsideration of our decision, the printed briefs of the defendants, the petitions
of the intervenors presented by various persons and the pleadings pro and con, this court finds the
following:chanrob1es virtual 1aw library

MOTION FOR RECONSIDERATION

Counsel for defendants insist upon their contentions maintained from the beginning and disposed of in our decision.
They raise some points in their briefs, however, which require a few brief-remarks.

The word "lord" does not necessarily mean "owner" or "proprietor." The word "lordship," derived from "lord," has its
own definition in the law, according to which, among other things, it means "usufruct." (Law 1, Title 28, partida 3.)

In the case of Natividad v. Gabino (36 Phil., 663), the meaning of the words "possessor" and "lord," and whether or not
they are equivalent to "owner" and "proprietor," are not discussed it simply declares the ordinary meaning of the words
"property" and "dominion" which are not questioned here as they are not used in the deed of foundation.

The case of Edroso v. Sablan, (25 Phil., 295) deals with reservable property which cannot be compared with entailed
property. The ownership of reservable property passes to the reservor, subject only to a resolutory condition, namely,
that there be reservees; the ownership of entailed property does not pass to the first-born, but only its usufruct. The
reservor may, under certain conditions alienate the reservable property (arts. 974-976, Civil Code); the first-born
possessor cannot dispose of the entailed property and, in the case under consideration, he is expressly and strictly
prohibited from alienating or even encumbering it.

The passage from Gutierrez on page 23 of the brief is a part of the commentaries by said author in the course of his
exposition of the various opinions on Law 6, Title 17, Book 10 of the Novisima Recopilacion (a compilation of laws
promulgated subsequent to the creation of this mayorazgo) in regard to improvements made on entailed property. The
fact is that this author calls possessors of mayorazgos "usufructuaries" in commenting on article 10 of the Disentailing
Law in his "Codigos Espanoles," vol. 2, p. 343, 1868 ed.

The quotation from Molina on page 29 of the brief is the opinion of said author upon the examination of a hypothetical
case propounded by him, to wit: Relinquo talem rem Titio ad alimenta (I bequeath such and such a thing to Titus for
support). But this same writer, in comparing the possession of a mayorazgo with a usufructuary in his work "De
Primogeniorum Origine ac Natura," Book 1, p. 59, 2d column, 1757 ed., says Ex quo infertur, majoratus possessores
usufructuario esse adacquatus, non autem e converso (from which it follows that the possessor of a mayorazgo is the
same as a usufructuary although not vice versa).

The decision of the Supreme Court of Spain of October 29, 1859, invoked in support of the reconsideration, had
reference to the scope of the Disentailing Law when the possessor of disentailed property, by virtue of said law, had no
successor to whom to deliver the ownership of half of said property. The power which in said case is recognized by the
courts in said possessor to dispose of the half that might belong to the successor, if there be any, does not arise from his
status as possessor and mere usufructuary of the mayorazgo, but from the disentailment itself of the properties which,
by virtue of the law, passed in full ownership to their possessors and successors and recipients of their fruits.

The fact that a mayorazgo might be created by contract as well as by will does not, as already stated in our decision,
deprive it of its nature of a fideicomiso. Furthermore, it must be noted that this mayorazgo, rather than a donation inter
vivos, is an act mortis causa by virtue of which the founder disposed of the remainder of all of his property. He had
already delivered to his eight children their legitimes, reserving only the third of free disposal and the remainder of the
fifth of the portion destined to betterment, in order to create this mayorazgo upon , thus definitely disposing of all of his
property. Such remainder is what the founder himself calls "betterment" (clauses 2 and 16 of the foundation), whereby
he indicates that this mayorazgo is the last complement of the testamentary dispositions alluded to by him in the deed
of foundation, this document thus constituting a testamentary memorial, for the validity and efficacy of which, as an act
mortis causa, the laws in force at that time required no special form provided the same was duly identified. With respect
to the form of this testamentary act there is, besides, the circumstance that the founder was a military man and as such
had the power to dispose of his property mortis causa, without being subjected to the forms provided for in the
Ordenanzas del Ejercito of 1768, confirmed by the Royal Cedula of October 24, 1778 and Law 8, Title 18, Book 10,
Novisima Recopilacion (5 Manresa Civil Code, pp. 218, 219, 1905 ed.)

The person entitled to possess entailed property had the right to bring an action for the recovery thereof upon his
legitimate right to possess such property and not in his capacity as a mere usufructuary. This is called a vincular action
established by the Law 45 of Toro, which became Law 1, Title 24, Book 11, Novisima Recopilacion. Its exercise does not
imply nor prove the title to the properties sought to be recovered; it was a right correlative to the right to possess
similar to that of an administrator who has the right of action to recover the possession of property under his
administration.

The doctrine enunciated in the decision of the Supreme Court of Spain of June 5, 1872, cited in our opinion, to the effect
that possessors of mayorazgos are mere usufructuaries, is not obiter dictum. Such declaration was necessary in that
decision because whether or not the possessors of the entailed properties were the owners or merely usufructuaries,
was one of the fundamental points discussed there, as appears in the first resultando (finding of fact) and in the second
considerando (conclusion of law).

It is incorrect to say that the Spanish authorities maintain that a mayorazgo is not a fideicomiso. We have cited varios
authorities in our decision who compare a mayorazgo with a fideicomiso. Molina, himself, in the same passage cited by
counsel for the defendants on page 29 of their brief, cannot help calling the possessor of a mayorazgo a fideicomisario
(trustee). (Molina "De Primogeniorum Origine ac Natura," Book 1, p. 151).

Naturally, Spanish writers and decisions do not confuse— cannot confuse— a fideicomiso with a mayorazgo, just as the
concept of a human being cannot be confused with that of a man, inasmuch as every man is a human being, but every
human being is not a man. Every mayorazgo is a fideicomiso, but every fideicomiso is not a mayorazgo.

We are of the opinion that our decision answers and sufficiently disposes of the other questions raised in said brief as to
whether or not the charge to distribute the fifth of the revenues of the entailed properties constitutes a family trust;
whether or not article 4 of the Disentailing Law is applicable to this mayorazgo; whether or not the right of action which
the plaintiffs might have had has prescribed, and the effects of the registration of the entailed properties under Act No.
496.

Resolving, therefore, said motion for reconsideration, we reiterate the following conclusions, declaring
finally:chanrob1es virtual 1aw library

(1) That the first-born possessor of this mayorazgo was a mere usufructuary of the entailed properties.

(2) That this mayorazgo was a fideicomiso.

(3) That the charge to distribute the fifth of the revenues from said properties was a family trust.

(4) That article 4 of the Disentailing Law of October 11, 1820 is applicable to the present case.

(5) That the fifth of the properties into which, by virtue of said law, the fifth of the revenue was converted on March 1,
1864, when the Disentailing Law became effective in the Philippines, has remained and subsists as a fideicomiso up to
the present date.

(6) That the plaintiffs’ right of action has not prescribed.

(7) That the registration of the entailed properties under Act No. 496 must, with respect to the fifth of the said
properties conserved up to the present time as a fideicomiso, be held to have been made in favor of the beneficiaries of
said fifth part.

(8) That the plaintiffs, as well as any other descendants of the founder, are entitled to participate in the fifth of the
properties of this mayorazgo in accordance with the sixth clause of the deed of foundation and article 4 of the
Disentailing Law.

(9) The pronouncements made in our decision with respect as to the amount of the participation of each claimant shall
be set aside in view of the motions of the intervenors which we are about to examine.

RE PLEADINGS OF INTERVENTION

After the promulgation of our decision sworn petitions of intervention were presented by Estanislao Arenas Tuason,
widow of Julian La O Et. Al., another by Benito Legarda Et. Al., and another by Emilia Tuason Et. Al.

The first two claim to be descendants of the younger children of the founder and who, if their allegations are proven,
belong to the same class as the original plaintiffs.

In view of the fact that said petitions do not rebut the fundamental conclusions of our decision and are limited to the
allegation of the right to participate in the fifth of the properties, it is our opinion, in accordance with the provisions of
section 121 and similar provisions of the Code of Civil Procedure, it is but just to grant said petitioners the opportunity to
duly establish their alleged rights.

The third petition was presented by Emilia Tuason Et. Al., who claim to be descendants of some of the brothers of the
deceased Jose Severo Tuason, possessor of the mayorazgo up to February 3, 1874, and the others of the first-born
possessor Vicente Tuason.

Of these petitioners, Emilia Tuason, widow of Rocha, Maria Rocha de Despujolis, Marquis of Oliver, Jose Ma. Rato, Eloisa
O’Farrell y Patino, Sofia O’Farrell y Patiño, Maria de la Concepcion, Luis Vidal y Tuason, Pedro Baños and the now
deceased Juan O’Farrell v Patiño, father and grandfather, respectively (according to the petition of intervention) of the
intervenors surnamed O’Farrell y Codero and O’Farrell y Montesinos, the deceased Antonio Vidal, father, according to
said petition, of the intervenor Maria Vidal y Delgado had been included as defendants in this case and were summoned
by publication and declared in default in view of not having appeared nor answered the complaint.

It is alleged in the petition, however, that their failure to intervene in the case was due to the fact that the plaintiffs in
paragraph 41 of their complaint only claimed a half of the fifth of the properties and that they believed the other half
belong to the descendants of the younger children of the founder’s first-born, by which allegation the right of the
intervenors to receive their pensions from one-half of the said fifth remained tact.

While the limitation of the plaintiffs’ claim in said paragraph 41 of the amended complaint does not appear sufficient for
us to deviate from the result of the evidence, nor the provisions of the law applicable to this case, nor to disregard their
prayer at the end of said complaint that they be granted any other just and equitable remedy, and for such reasons we
have had to adjudicate to them not only a half of the fifth of the property, but also the other half in common with the
defendants; yet, in view of the fact that these intervenors, who have been declared in default on account of said
paragraph 41 of the complaint, were justified in believing that only a half of the fifth of the properties were in litigation
in this cause, it is our opinion, in view of these considerations and the petitions of intervention referred to above, that it
is but just to set aside the distribution made in our decision, thereby granting these petitioners the opportunity to
intervene in this cause and to establish and defend their rights, and permitting the original plaintiffs, in justice to their
rights, to amend the allegations of their complaint.

Finally, in justice to the defendants, the plaintiffs and intervenors must take the necessary steps to include as parties to
this cause, all of the persons who may have the right to participate in the said fifth of the properties of this foundation.

ORDER

In view of the foregoing, it is ordered:chanrob1es virtual 1aw library

(a) That the motion for reconsideration filed by counsel for the defendants is denied in so far as it is incompatible with
the fundamental conclusions we have arrived at a present cause and enumerated in the proceeding resolution.

(b) That the dispositive part of our decision in this cause be set aside.

(c) That the record in the present case, together with the petitions of intervention mentioned, be returned to the Court
of First Instance of Manila in order that the new parties may intervene in this cause and prove their alleged rights, and
that the original plaintiffs may, if they so desire, amend their complaint.

(d) That the plaintiffs take the necessary steps to include as parties to this cause all such known and unknown person
who may have the right to participate in the said fifth part of the properties of this foundation, requiring them to appear
and prove their rights.

(e) That said Court of First Instance proceed to try this cause and render judgment as to the amount to which the
original parties and those who may intervene may be entitled as their participation in the fifth of the properties of this
mayorazgo.

(f) That the stipulation of facts on August 30, 1924 by Attorneys Sanz and Blanco on behalf of the plaintiffs and Araneta
& Zaragoza on behalf of the defendants, for all intents and purposes and with respect to the parties affected, is held as
subsisting, as well as the oral and documentary evidence presented by the parties during the original trial of the cause,
the original parties as well as those who hereafter may intervene, being entitled to introduce such additional evidence
as they may desire upon the subject-matter of the trial herein ordered.

No express pronouncement as to costs. So ordered.

Avanceña, C.J., Street, Ostrand, and Johns, JJ., concur.

Separate Opinions

JOHNSON, J., with whom concur VILLAMOR and VILLA-REAL, JJ., concurring:chanrob1es virtual 1aw library

I concur in granting of a new trial. In my opinion, however, in as much as new parties have been admitted and a new trial
has been ordered, the doors should be opened wide for the trial of every issue presented within the four corners of the
case, except that the evidence already adduced should stand as a part of a new record. I do not believe that the parties
in a new trial should be shambled by doctrines which might be rendered useless by the new facts which might be
brought into the case. The intervention having been allowed, the intervenors should be given a full and free opportunity
to defend their rights unhampered by jurisprudence announced upon facts, the effect and operation of which may have
been entirely changed by facts adduced during new trial.

STREET, J., concurring:chanrob1es virtual 1aw library

While in the main I fully endorse the conclusions reached in the admirable exposition of this case contained in the
original opinion written by Mr. Justice Romualdez, and while I concur in the return of the case to the court of origin, in
conformity with the present resolution, I wish to take advantage of this occasion to refer to a minor feature of the case
which is, under this resolution, designedly left open for further consideration in the court below. The point is one in
which an antagonism will be presented between the interests of two classes of claimants, and as to which those
defendants who are holders of the legal title to the trust property can have no real concern, supposing the capital issue
arising between them and the different classes of claimants to have been finally decided contrary to their contentions. I
refer of course to the antagonism of interest between those descendants of the original founder who are younger
offshoots from the preferred line, and those descendants of the founder who have sprung from four of the younger
children of the founder, this latter being the class in whose behalf the original action was instituted. Heretofore no issue
has been made between the two classes of claimants here referred to, but unless their conflicting interests are
composed by mutual agreement, the lower court will be called upon to settle the matter; and although said court is left
free, under the present resolution, to determine the conflicting interests of said two classes of persons as a question of
first impression, it will nevertheless be confronted with certain observations in the original opinion which in my opinion
will bear further investigation.

The question arises upon the interpretation of the item of the royal cedula creating the entail in which is defined the
duty of the holder of the entail with respect to the disposition of one-fifth of the net revenue derived from the entail.
This item may be here quoted as follows:jgc:chanrobles.com.ph

"Item.

"It shall be his duty to set apart one-fifth of the net revenue derived from the entail each year, and that one-fifth part
shall be divided into eight parts, giving one to each of my eight children, and upon failure of such, to my grandchildren,
but upon the understanding that if one or more of my children should die without succession, the part belonging to
them shall be distributed among my grandchildren and other descendants of mine according to their needs and as
prudence may dictate to him, so that, when the time arrives that none of my children or grandchildren are alive, it shall
then be always understood that said fifth part shall be applied to all those of my descendants who are poor, the
apportionment to be made by him prudently according to their needs and therefore the possessor of the entail is hereby
charged to discharge this duty with a conscientious scruple."cralaw virtua1aw library

To understand the application of this provision to the facts of the case before us, it is necessary to bear in mind that the
founder had nine children, and that four of the younger eight have no living descendants. On the other hand, four of the
younger children have living descendants, being represented in the present litigation by the original plaintiffs. There are
also now in existence some persons representing the younger offshoots (segundones) of the preferred line. Some of
these latter were named as defendants in the original complaint, but they allowed judgment to be taken by default. The
case will now be opened as to these in the Court of First Instance and they, as well as other new claimants, will be at
liberty there to present whatever contentions they may see fit to make.

As may be gathered from the petition of intervention filed in behalf of the younger offshoots (segundones) of the
preferred line, they claim to be entitled to an undivided one-tenth interest in the income of the entailed property, this
being that half of the fifth which formerly pertained to the four younger children of the founder whose lines have
become extinct. On the other hand, the original plaintiffs, consisting of the descendants of the four younger children of
the founder whose lines are represented by living descendants, will probably insist that they are entitled to all that was
conceded to them in the original decision of this court, that is, one-tenth, or four-fortieths, as pertaining to the plaintiffs’
four ancestors, per stirpes, and one-tenth, or four-fortieths, as pertaining to the plaintiffs in common with all other
descendants of the founder other than the holders of the legal title.

Now I submit that something can be said in favor of a simpler solution of the problem, which would establish the
conclusion that the entire fifth now under discussion pertains to all the descendants of the founder other than the
holders of the legal title, including of course the younger offshoots of the preferred line, and due allowance being of
course made for transfers and surrenders. The point here suggested depends upon the interpretation of the word nietos
in the Spanish original of the Item of the foundation quoted above, and which is there translated "grandchildren." In the
original decision this court sustains the view that nietos, as first used in the quoted Item, means descendants. It is my
personal opinion that nietos ought to be here taken in the strict sense of grandchildren, and not in the secondary sense
of descendants.

If this be true, it follows that all of the descendants of the founder other than the present holders of the legal title to the
trust property together constitute a single constituency of beneficiaries, and all of these descendants are on precisely
the same footing, their rights being derived from the closing words of the paragraph above quoted, which are these:
"when the time arrives that none of my children or grandchildren are alive, it shall then be always understood that said
fifth part shall be applied to all those of my descendants who are poor, the apportionment to be made by him prudently
according to their needs and therefore the possessor of the entail is hereby charged to discharge this duty with
conscientious scruple."cralaw virtua1aw library

It will be noted that the trust thus established was intended for the relief of those of the founder’s descendants who
should be poor; and as long as the trust subsisted only those who were deemed by the possessor of the entail to be
needy could share in the benefits of the trust. But when the trust is terminated, the distribution must be made among
all members of the constituency, and not exclusively among the needy, for every member of the constituency of
beneficiaries, even including the wealthy, had an interest in the maintenance of the trust while it subsisted and is
entitled to share in the distribution of the trust fund when the trust is ended.

As the entire dispositive part of our former decision is abrogated by the present resolution, the different classes of
beneficiaries will in fact be entirely free in presenting their conflicting claims before the lower court and the latter will be
entirely unhampered in passing upon those claims. As I understand the present resolution the court wishes to be
understood as adhering to the doctrine expressed in the original decision so far as affects the title of the defendants
only, without prejudice to the conflicting rights of the different claimants as among themselves.

VALENZUELA VS. CARLOS

G. R. No. 17565, December 07, 1921 PIO VALENZUELA, PETITIONER AND APPELLANT, VS. JUAN B. CARLOS AND SILVINO
LOPEZ DE JESUS, RESPONDENTS. JUAN B. CARLOS, APPELLEE.

DECISION

STREET, J.:

At the general election held in the Province of Bulacan on June 3, 1919, three persons presented themselves as
candidates for the office of provincial governor, to wit, Juan B. Carlos, Pio Valenzuela, and Silvino Lopez. In this election
the Nationalist party was split into two factions, represented respectively by Silvino Lopez, the candidate of the
Nationalist party proper, and Juan B., Carlos, the candidate of the faction known as the Nationalist Popular League, while
the third candidate mentioned, Pio Valenzuela, was the representative of the Democratic party. As might be expected
from these conditions the election was hotly contested, and such political excitement was engendered. When the
election was over and the returns canvassed, it was found that, upon the face of the official returns, Juan B. Carlos had
been elected provincial governor, having received 10,046 votes, as certified by the provincial board of canvassers; while
Pio Valenzuela was second, with 9,861 votes; and Silvino Lopez third, with 7,187. Carlos was accordingly certified as
elected and later was inducted into office.

Dissatisfied with the result, Pio Valenzuela, the defeated democratic candidate, in due time began the present
proceedings by motion to contest the election. Both his opponents having been duly cited, Juan B. Carlos appeared and
not only made an active defense against the contestant's motion but instituted a counter-contest; while Silvino Lopez,
after having formally answered, allowed the proceedings to take their course without further participation on his part.

Upon submission of the case for decision, his Honor, Judge Bartolome Revilla, presiding in the Court of First Instance of
Bulacan, after considering the contentions of both parties, decided that Carlos had been elected by a plurality of about
1,800 votes over Valenzuela and he accordingly dismissed the contest. From this decision the contestant appealed.

In beginning the discussion it should be noted that the unofficial figures showing the results of the election, as published
at Malolos, the provincial capital of Bulacan, in the two or three days immediately succeeding the election, differed
materially from those afterwards promulgated by the provincial board of canvassers; and these differences were
sufficient to change the apparent result of the election for provincial governor. The most conspicuous of these changes
is found in the figures relative to the first precinct of San Rafael, where by the official returns Carlos received 329,
instead of 111 votes with which he had been credited in the unofficial returns; while in the same precinct Valenzuela,
who had been credited in the unofficial returns with 154 votes, received in the official returns only 29 votes. In the
second precinct of San Rafael, the official canvass showed a reduction of 10 votes in the number received by Carlos, he
being here officially credited with 160 votes instead of 170. In the third precinct, where the votes in favor of Carlos and
Valenzuela respectively had been reported as 17 to 50, the official returns showed 32 to 35, indicating a loss of 15 to
Valenzuela and a corresponding gain of 15 for Carlos.
These discrepancies between the unofficial figures and the results of the official canvass were not restricted to the
municipality of San Rafael, being scattered over a number of other municipalities or precincts which are unnecessary to
be mentioned. Some of these discrepancies can of course be assumed to be the result of mere errors in the unofficial
reports, due to the fatalities of chance as the information passed from one person to another on its way from the places
where the votes were counted to the provincial capital; for nobody ever heard of an election of any magnitude in which
the unofficial reports coincided in every detail with the true returns. In this instance, however, the changes effected in
the returns by the official figures are decidedly more favorable to Carlos than to his opponent; and it is a fair assumption
that some intelligent agency may have been at work either to garble the first unofficial figures or to falsify the final
official returns.

The explanation supplied by the contestee is to the effect that the discrepancies referred toso far as they may have
resulted from designing human interventionwere the result of a prank perpetrated by one Aniceto Cruz, who had charge
of the telephone over which the unofficial returns of the election were received at the provincial building in Malolos,
from whence they were given general publicity, upon the billboard and by mimeographed copies, for the information of
everybody. We incline to the view that the personality mentioned may have contributed somewhat to the confusion
which resulted in the returns but the incident can exert no decisive influence over the case and we pass it without
further comment.

In prosecuting our examination into the details of the vote cast in the various contested precincts, we shall for obvious
reasons first direct attention to those precincts which have been put in issue by the contestant, the appellant in this
court, as part of his case in chief; and in this connection we note that the contestant insists upon the total suppression of
the returns from the three precincts of the municipality of Bustos, the seventh precinct of Malolos, and the three
precincts of Paombong. In regard to the first and third precincts of San Rafael the contestant insists that the returns sent
in by the inspectors were falsified as regards the office of governor. As a consequence he contends that secondary
evidence should be admitted to show what the results in these precincts really were. In respect to the second precinct of
San Rafael, it was at first insisted by the contestant that the official returns had here also been falsified by the election
officials to the detriment of the contestant; but when the boxes were opened and their contents examined, the result of
the recount was found to be more favorable to Carlos, by a few votes, than the result shown by the official returns.
When this fact was revealed, the contestant took the position that the contents of these boxes had probably been
tampered with and that the ballots found in said boxes should not be accepted as conclusive as to the votes cast.
Instead, he suggests that the court should here either adhere to the official returns or accept the unofficial figures as
correct.

We shall now proceed to consider the contests relating to the various precincts in the order above suggested, indicating
what we consider the proper figures for each precinct in turn, and reserving to the conclusion of this opinion such
observations as we may wish to make with respect to particular ballots which have been brought into discussion.

Bustos; precinct 1.The appellant has assigned error to the action of the court in refusing to suppress the returns from
the first precinct of Bustos. In this connection it appears that the ballot boxes pertaining to this precinct were violated
on or about the night of June 22, 1919; and when said boxes were examined in this contest, there were found in the box
of used ballots only 6 ballots bearing the name of Carlos and 6 bearing the name of Valenzuela, whereas by the official
returns Carlos received 177 votes in this precinct and Valenzuela 13.

Upon the question as to which of the present litigants, if either, is responsible for the spoliation of these boxes, the
evidence is undecisive. It is morally certain that said act cannot be attributed to Carlos, since his interests would have
been better promoted by the conservation of the ballots than by their destruction; and he has produced a full tale of 177
individuals, who swear that they voted for him in this precinct. It is suggested in the appellant's brief that the despoiling
of these boxes was really in the interest of Carlos since, if the ballots had been produced, they would have proved the
truth of the appellant's charge that many votes had been dishonestly read for Carlos when they were in fact cast for
Valenzuela. But this rests upon the assumption that this species of fraud was perpetrated, which is refuted by the
testimony of the witnesses, 177 in number, who declared that they had voted for Carlos. It is absolutely incredible that,
if such a fraud as that supposed by the contestant had been perpetrated, the contestee could have produced, or would
have attempted to produce, the requisite number of witnesses to swear that they had voted for him.

From evidence submitted on the part of the contestant one is inclined to credit the charge that the ballots were
extracted from the boxes in question on the night of June 22, 1919, by a policeman named Marcelo, Bunag, aided by one
Agustin Lopez, both affiliated with the Nationalist party, and that said ballots were carried by these two to the home of
one Hermenegildo Hilario.

On the other hand, it may be inferred from proof submitted by the contestee that a certain defeated candidate for
representative had entertained criminal designs on these boxes, with a view to the possible furtherance of his own
contest for a seat in the House of Representatives. In this connection the witness Valeriano Castro testified that said
personage had offered him the sum of P200 to steal the boxes of the first precinct of Bustos, saying that the
disappearance of those boxes would enable him to be successful in his contest for the office of representative. Singularly
enough, the individual alluded to, although at one time participating in the present lawsuit as one of the attorneys for
the contestant, did not take the stand to refute this imputation; and the unfavorable inference which the trial judge
drew from his reticence was apparently not entirely without basis.

But assuming that either the one or the other of the parties thus placed under suspicion were the possible authors or
instigators of the act, we do not think that sufficient connection has been shown on the part of the contestant or
contestee to justify fixing the responsibility upon either. In considering a question of this kind, it must be borne in mind
that, after a general election has been held, many disappointed persons have their minds fixed with curiosity and
suspicion upon the ballot boxes. Charges of irregularities and fraud readily spring up; and when it is shown that a box
has been violated the commission. of the offense should not be laid at the door of any particular candidate without
strong presumptions or actual proof of complicity. In the present case it is a reasonable and tenable supposition that this
act of spoliation was committed by some third person, and possibly without the design to promote the interest of either
of those litigants. In this view the spoliation of these boxes was the act of a stranger, and in our opinion neither litigant
should be penalized therefor. The practical result is that the official returns for this precinct must be adhered to and
Carlos is therefore entitled to be credited with 177 votes and Valenzuela with 13.

As already stated the trial judge permitted the contestee, over the objection of the contestant, to introduce witnesses
who waived their privilege of secrecy and testified that they had voted for the contestee. This testimony was in our
opinion admissible for the purpose of rehabilitating the returns from this precinct. In this connection it is to be borne in
mind that the contestant had impugned the returns from this precinct and had introduced evidence tending to show
that the boxes of this precinct had been violated by persons affiliated with the party to which the contestee belonged. In
this state of the case it was proper to admit the testimony of voters in order to show that the contestee actually
received the votes with which he had been credited. This procedure is criticised by the appellant as permitting an
election to be held a second time by the court. But it must be remembered that this proof is received not for the
purpose of accrediting the votes of the witnesses so testifying to either litigant but to show that the returns which have
been brought under suspicion are correct; and it is in this sense that such proof is considered admissible. The action of
the trial judge in admitting this proof was therefore correct and besides it was in conformity with the decision of this
court in Dayrit vs. San Agustin and Valdez (40 Phil., 782).

When it was understood that the testimony of these numerous voters from the first precinct of Bustos would be
presented in court, the trial judge, at the request of the contestee and over the objection of the contestant, appointed a
date for the taking of their testimony in the municipality of Bustos, of which both parties had due notice; and upon that
date his Honor went to that municipality and a great number of said witnesses were there examined. It is now assigned
as error that the action of the judge in repairing to the municipality of Bustos was unauthorized and that the judicial acts
there done are devoid of legal effect. For this reason the appellant would have us declare that the testimony thus taken
cannot be used in this case. This position is in our opinion not well taken. It is true that there is no provision of law
directly authorizing a court to repair to a place other than that where the court sits for the purpose of taking the
testimony of witnesses, though there is a provision under which the Secretary of Justice may direct a special session of
court to be held in any municipality. (Sec. 163, Adm. Code.) It is to be borne in mind, however, that the session of court
which was thus held in the municipality of Bustos was held for the exclusive purpose of taking the testimony of
witnesses and it was held during the probatory term, before the cause was submitted for argument or judicial
determination. Under these circumstances the trial judge must be considered to have been acting somewhat in the
character of a commissioner to take a deposition; and as it does not appear that he abused his discretion in going to the
municipality of Bustos for this purpose the irregularity in so doing was not vital.

Among the 177 persons who thus testified that they voted for Carlos were a number of illiterate persons; and upon
cross-examination some of them said that they had not been required, as a preliminary to voting, to make oath
concerning their incapacity to prepare their ballots, and some also stated that only one inspector was present when
their votes were made out. For this reason the appellant insists that the votes of these persons should be deducted from
the votes of Carlos in this precinct. In our opinion this position is not well taken, even supposing that the irregularities
mentioned actually occurred.

It must now be regarded as settled doctrine of this court that innocent voters should not be deprived of their votes by
the failure of the election officers to comply with requirements of law such as are here under consideration. While such
provisions are mandatory before the election, they are to be considered after the election as directory only. (Lino Luna
vs. Rodriguez and De los Angeles, 39 Phil., 208, 214.) By this it should be understood that if the vote of an illiterate
person should be challenged before it is put in the ballot box on the ground that he has not taken the required oath or
that he has been assisted in the preparation of his ballot only by a single inspector, such vote would not be admitted.
But after the vote is cast, the irregularity is not vital. This court has never declared an election in any precinct invalid for
any mere irregularity of this character, unaccompanied by other evidence of fraud.

In the case of Lino Luna vs. Rodriguez and De los Angeles, supra, it is suggested that the vote of an illiterate person who
has voted without complying with the formal requirements above contemplated should be deducted from the votes cast
if the ballot can be identified. However, it must be remembered that when the court speaks of rejecting a ballot on such
ground, or grounds, the situation contemplated is that where the irregularity complained of is part of a fraudulent
scheme to frustrate a free expression of the desires of the electorate. Where there is no evidence of fraud and it clearly
appears that the vote as cast actually reflects the choice of the voter, the innocent voter should not be disfranchised by
the deduction of his vote from the total number cast.

Bustos; precincts 2 and 3.The boxes in these precincts were opened and a recount was had at the instance of the
contestant. No specific assignment of error has been made to the action of the court in connection with the revision of
these votes but it is intimated that the returns from both these precincts should have been suppressed. We find no
proof in the record that would have justified such course, and the supposed error was not committed. There is,
however, one circumstance connected with the vote in these precincts to which attention will be directed. It is that
when the box containing the used ballots of the second precinct was opened by the five commissioners appointed for
this purpose, two of them made a note in the report to the effect that various ballots found in this box were written in
one and the same hand. In the similar report concerning the ballots contained in the box from the third precinct the
same two commissioners made a note to the effect that 160 ballots in favor of Carlos appeared to have been written by
one hand and 25 by another. Nevertheless, all five of the commissioners allowed these ballots to pass without question
and they were adjudicated to Carlos. Under these circumstances there is nothing for us to do except to adhere to the
revision, as approved by the trial judge. Certainly, if there had been anything to be made out of this circumstance
favorable to the contestant, the question should have been properly raised and the ballots brought before us. But this
has not been done. The statement that such a large proportion of the ballots contained in the box of the third precinct
was written by a single hand, if true, suggests the possibility that the box had been violated. But if so, the official returns
would doubtless have prevailed in any event.

The result is that Carlos must be credited with 193 votes in the second precinct of Bustos and Valenzuela with 36, which
are the figures adopted by the trial judge. The revised figures for the third precinct, as adopted by the trial judge, show a
vote of 206 for Carlos and 32 for Valenzuela, but the vote of the latter must be here increased to 39f by reason of the
addition of 7 disputed ballots which we concede to him as will hereafter appear.

Malolos; precinct 7.In this precinct the polls were closed at the precise hour fixed by law, or 6 o'clock p. m., at which
time there were still two hundred or more electors who had not voted and most of whom were then present near the
voting booths, awaiting an opportunity to cast their ballots. The appellant insists that the democratic voters had been
systematicaly excluded from the polls during the entire day and that the closing of the polls at the hour mentioned had
the effect of disfranchising nearly two hundred of the voters of this party. In this connection evidence was submitted
tending to show that the voters pertaining to the Nationalist party proper and to the League were lined up on opposite
sides of the polling place and from these only voters were allowed to enter alternately when occasion came to admit
them. The result was, so it is alleged, that the democratic voters were unable to gain admittance in any appreciable
numbers during regular voting hours.

Upon this point a preponderance of the evidence in our opinion shows that no systematic effort of the kind here
supposed to disfranchise democratic voters was made; and the circumstance that so many persons were unable to vote
was due to the inadequate facilities for handling so many voters within the lawful voting -hours. Indeed, not a few of the
witnesses examined by the contestant testified that they were unable to vote merely because of the crowd.

The proof shows that the polls were closed promptly at 6 for the reason that before election day instructions had been
sent out from the Executive Bureau in Manila to the effect that the voting should be closed at 6 in accordance with the
provisions of law and this order was communicated by Governor Buendia to the election officials in Malolos. It is
possible that among those disfranchised by the early closing of the polls persons of democratic affiliation may have
predominated; but it is shown that many voters of other parties were disfranchised in the same manner. It results that
the trial judge did not err in adhering to the original returns in the seventh precinct of Malolos and in there alloting to
Carlos 133 votes and to Valenzuela 88.

Paombong; precincts 1, 2, and 3.The appellant seeks to suppress the returns from the three precincts of Paombong on
the ground that, during the hours appointed for the election, voters known to be of democratic affiliation were kept
from voting. The plan by which this is supposed to have been accomplished was similar to that alleged to have been
used in the seventh precinct of Malolos, namely, that the voters belonging to the Nationalist party proper were kept in
line at a certain place near the polls, and the voters of. the League were similarly lined up on another side. From these
two lines only voters were admitted to the polling place, either alternately or by taking an equal number from each line
to obtain the quota necessary to fill the booths at any time. The ward leaders charged with the duty of maintaining
these lines are alleged to have excluded voters of democratic affiliation, with a natural desire to get their own voters
through with as little delay as possible.

Upon examining the proof bearing upon this feature of the election, we are convinced that the democratic voters were
here discriminated against in the matter of admission to the polls, and that this was done with the connivance of the
election officials, with the result that when the hour fixed by law for closing the polls arrived comparatively few of the
voters of this persuasion had been able to vote. Nevertheless, this irregularity cannot be held to have vitiated the
election; for the reason that in each of these precincts, the election officials kept the polls open until every eligible voter
present had voted. This was done at the urgent insistence of the democratic leaders themselves for the express purpose
of securing an opportunity for their followers to vote. In one of these precincts the voting appears to have continued
practically throughout the entire night, and in all three precincts the voting continued until all registered voters who
presented themselves for this purpose had voted. A comparison of the registration lists with the number who actually
voted in these three precincts shows that very few eligible voters, if any, could have failed to vote on account of being
excluded from the polls during the regular voting hours of election day. In this connection we note that the average
number of registered voters who failed to vote for any cause in these three precincts was below twenty; and where so
many hundred were enrolled it is evident that the number thus actually deprived of the right to vote, if any, must have
been inconsiderable.

The legality of the election in the first precinct of Paombong is also attacked by the appellant on the ground that some
persons were here assisted as illiterates who are alleged to have been competent to make out their own ballots. It
appears, however, that such persons gave assurances that they were unable to write and apparently took the oath
prescribed for illiterates. Some of these persons who were thus assisted as illiterates exhibited bandaged hands as
evidence of their temporary incapacity to write. The incident does not impress us as one that would justify the
annulment of an election; and it is partly explainable by reference to the fact that not a few persons qualify as electors
on the ground of being able to read and write who nevertheless are very deficient in their command of the pen. As
might be expected when election day comes and these persons are confronted with the duty of preparing their ballots
they are seized by lack of confidence, and naturally many seeks assistance on the ground that they are unable to prepare
their votes. If such assistance is sought in good faith, and there is nothing in the case before us to indicate the contrary,
the irregularity, if such it be, is unimportant.

It must be held that his Honor, the trial judge, did not err in adhering to the official returns in the three precincts of
Paombong, thereby awarding to Carlos 607 votes and to Valenzuela 79.

San Rafael; precinct 1.The contest over the vote in this precinct presents the concrete question whether the official
returns, as made out and certified by the election officers, were falsified in respect to the office of provincial governor by
showing a vote of 329 to 29, instead of 111 to 154, as between Carlos and Valenzuela.

The counting of the votes in this precinct consumed the entire night of June 3, and was finished early in the morning of
June 4, 1919. Upon the conclusion of the count, the few watchers and spectators who had had the patience and
curiosity to stay to the end, dispersed; and the election officials say that they then proceeded to make out the returns in
quadruplicate.

Two copies of this return are in evidence and the only difference observable is that, in the copy Exhibit G, the words
stating the number of votes cast for two candidates for representative (Norberto Manikis and Cirilo B. Santos) are
written over erasures, showing that the votes first placed opposite these names had been changed. This incident is
explained by the inspectors, who concur in saying that in setting down these figures an error had been made in placing
the vote of Manikis opposite the name of Santos and the vote of Santos opposite the name of Manikis. The same error
appears to have been made in each of the four copies, and was not noticed until the time came for the inspectors to
sign. Upon discovery of the mistake, two entirely new copies of the returns were made out upon the only two remaining
forms which were available; and for the other two it was necessary to erase the original figures and substitute the
correct figures. Upon a careful examination of the proof bearing upon this alteration, we are satisfied that the alteration
was made in the manner and for the reason stated, but, as we shall presently show, there is no certainty that the returns
now before us and containing the changes above referred to are the precise returns that were made up before the
inspectors dispersed.

The work of holding the election having been thus accomplished, the ballot boxes were placed upon a cart and
dispatched in the direction of the municipal building. The president of the board of inspectors, one Nazario Valero,
accompanied the carretela, and the municipal secretary, who had been in attendance at the polling place, also started
along. Now, it so happened that Valero's residence is near the municipal building, and as all who had participated in the
election work were exceedingly tired, it was agreed between Valero and the municipal secretary that the former should
keep the boxes in his house and under his care until they could be delivered to the secretary later. Accordingly the
boxes, upon reaching their destination, were transferred to the home of Valero, just opposite the municipal building,
where they remained until late Friday afternoon of June 6, when they were brought over to the municipal building upon
the occasion of a meeting of the council.

The evidence shows that the copy of the certified official returns from this precinct which should have been promptly
forwarded to the provincial treasurer at Malolos was not forwarded for two days, and as a result the provincial treasurer
came to San Rafael on the evening of the 5th, inquiring why those returns had not been sent in. In reply he was
informed that the municipal secretary had then forwarded the document.

The unofficial returns fro this precinct, however, reached Malolos on the morning of the 4th, showing, as we have stated
in the beginning of this opinion, that Carlos had here received 111 votes and Valenzuela 154; and these returns had
been then duly published on the bulletin board at the provincial building. Just how this information was sent to Malolos
is a matter of dispute. The evidence submitted on this point by the contestant tends to show that when the conclusion
of the count was reached, it appeared that the vote was 111 to 154 as between Carlos and Valenzuela, and that the
results of the election for this office, as well as others, was communicated over the telephone between 9 and 10 a. m.,
on the 4th, by the municipal treasurer, one Servillano de Jesus, to the office of the provincial treasurer at Malolos. The
fitness Vicente Valimento says that at the time the communication just mentioned was transmitted over the telephone
by the municipal treasurer he (the witness) was present and saw in the hands of the treasurer a copy of the returns
showing the results of the election for the various offices, among which were the figures for governor indicated by him,
namely, 111 to 154. The person in charge of the telephone in Malolos, Aniceto Cruz, says that he faithfully received and
recorded the returns and that the figures placed on the board were those actually received by him.

On the other hand, the municipal treasurer denies having sent any such message, and the testimony of witnesses at the
other end of the line (Malolos) tends to show in an unconvincing way that Aniceto Cruz may have deliberately
introduced changes into the figures received by him.

A careful perusal of the testimony relating to this incident leaves one with the impression that something is wrong and
that the version of the matter given by the municipal treasurer is lacking in candor. We believe that his testimony is
animated by a desire to shield somebody and that for this purpose he has feigned not to have participated in sending in
the first returns. Yet those returns went through his office, and he could scarcely have been ignorant of the fact of that
communication, even if he did not send it.

We now return to the incident of the counting of the votes. The same Vicente Valimento mentioned above testified that
he was present where the count was conducted during the whole night of the 3d, and sufficiently near to hear the votes
called out; that he kept tally on a cardboard of every vote for certain offices, including that of governor, and he exhibited
in court the board on which these votes had been recorded. He says that he truly recorded the vote and that the
number actually received by the two respective candidates were as stated, to wit, 111 to 154. He was corroborated
substantially, as to the result thus stated, by two witnesses, Generoso Inducil and Getulio Gonzales, who were watchers
for the Nationalist party. 'The first of these witnesses says that Valenzuela got more votes in the count than Carlos,
without giving figures, while the latter says that Carlos got 111 votes to Valenzuela's 154.

We are unable to treat the testimony of this trio as lightly as did the trial judge, and we are of the opinion that, taken
together, and in combination with other facts, it is sufficient to engender belief that the official returns are false. The
inference thus deduced in our opinion becomes a certainty when a fact is considered to which attention will now be
directed.

It is well-known that where the electorate is largely illiterate and voters are required to write into the ballot the names
of the persons voted for, there is a tendency to vote most heavily for the offices at the head of the ballot, except where
great public interest may have been aroused over some particular office lower down on the ballot. Thus, taking at
random the official returns from precinct 4 of Pulilan, where 590 persons voted, we note that 540 voted at the top for
senator, while only 497 voted for governor, the third office on the ballot, and 436 for municipal president. Now, by the
official returns of the first precinct of San Rafael, it appears that in all 419 persons voted. Of these 381 voted for senator
and 339 for representative, while for the office of governor, next below on the ballot, the total vote recorded is 406. This
vote for the office of governor is within 3 per cent of the total number of persons voting and it is reasonably certain that
this number could not have voted for that office.

We have examined the averages in a number of precincts taken at random, and we find that the number of votes cast
for the office of governor runs on the average from 15 to 20 per cent below the total number voting. In other words, the
fraud in the first precinct of San Rafael is proved by the excessive and unreasonable total of votes attributed to the three
candidates, and especially to Carlos. On the other hand, the vote for governor as revealed in the unofficial returns is
about 25 per cent below the total number voting, and though this disparity is large, the percentage is not markedly out
of line with the vote cast for this office in some other places.

Our conclusion is that, by a preponderance of the evidence, the returns showing 329 votes for Carlos and only 29 votes
for Valenzuela in the first precinct of San Rafael are evidently falsified; and in our opinion the true vote in this precinct,
as between the candidates mentioned, is 111 for Carlos and 154 for Valenzuela.

Sera Rafael; precinct 2.The contestant asked for a recount of the votes in the second precinct of San Rafael, and when
the boxes were opened the result was found to be more favorable to Carlos by a few votes than the official returns had
shown. The contestant's attorneys thereupon asked the court to adhere to the official returns. The reason assigned for
this is that the box is now supposed to have been violated. This, we think, is refuted by the proof; and although this box
had been taken to Manila upon the occasion of the contest over the election for representative, it does not appear to
have been officially opened in that contest, and we are fairly well satisfied that it had not been tampered with. It result
that the trial judge committed no error in assigning to Carlos 178 votes and to Valenzuela 7 in this precinct, Which is the
result of the recount, there being no assignment of error by the contestant upon details.

San Rafael; precinct 3.In order to exhibit the facts relative to the contest in the third precinct of San Rafael, it is
necessary to relate an incident connected with the election in precinct 1, which is this: When the counting of the votes
in that precinct had been concluded, Nazario Valero took with him from the voting place, as was proper, the official
returns and the unused ballots, from one to two hundred in number, pertaining to this precinct. These he turned over
on the morning of June 5 to the municipal secretary. What became of this package of unused ballots is not absolutely
known. The municipal secretary says that they disappeared. But when the box of used ballots pertaining to the third
precinct of San Rafael was opened in this contest there were found therein 114 ballots pertaining to the first precinct,
showing that this box at least had been violated, and that the perpetrator of the crime had substituted ballots of the first
precinct for the genuine ballots of the third precinct which he must have taken therefrom. Of said 114 ballots, 17 were
so fixed as to purport to be votes for Carlos, 50 for Valenzuela, 15 for Silvino Lopez, and 32 without any name for
governor. As between Carlos and Valenzuela this is precisely the vote shown by the unofficial returns; and if these votes
were accepted as genuine the contents of this box would strongly corroborate the contention of the contestant to the
effect that the original returns were as published immediately after the election.
But the fatal circumstance here is that the ballots substituted for the genuine ballots are not ballots of this precinct but
of precinct lf and the proof shows that ballots bearing the proper mark for this precinct were used in voting here. Why
did the violator of this box substitute ballots from precinct 1 in a box pertaining to precinct 3? The answer is doubtless
found in the fact that precinct 3 had been lately formed from precinct 1, and the ballots especially designed for use in
precinct 3 were requisitioned and obtained after the votes for the other precincts had been obtained. ''The man who
performed the substitution, knowing that precinct 3 had just been detached from precinct 1, probably thoughtif the
matter occurred to him at allthat tickets from precinct 1 might pass without question, and he possibly did not notice that
the tickets taken by him from this box bore the distinguishing number of this precinct. At any rate the fraud is manifest.

When it was thus revealed in court by the inspection of this box that the votes cast had been substituted by illegal
ballots pertaining to another precinct, the contestee Carlos was permitted to introduce 33 witnesses, all of whom
waived their privilege of secrecy and, with the exception of one, testified that they had voted for the contestee. The
single witness referred to said that he voted for Valenzuela. The latter introduced no witnesses to ratify the remaining
votes that had been credited to him in the official returns in his favor.

Upon this state of the proof the trial judge gave Carlos 32 votes and Valenzuela 1, thereby depriving Valenzuela of 34
out of the 35 votes with which he had been credited iji the official returns from this precinct. Upon this it is alleged in
error that the trial judge, upon discovering that the contents of the box had been changed, should have adhered to the
official returns.

Whether his Honor should have done so, in our opinion depends upon whether Valenzuela can be, fairly said to have
been responsible for the violation of this box; and upon this we are constrained to hold that such responsibility is not
proved. It is true that, superficially considered, the changes effected in the contents of this box might seem to have been
made in his interest, since, if these spurious substituted ballots had been accredited by the court, the result in this
precinct would have corroborated, in a vital way, the contention of the contestant to the effect that the returns as
posted on the bulletin board at Malolos were correct and that the official returns had been changed after the count was
over. Nevertheless, we are confident that the contestant acted in good faith in asking that this box be opened and that
personally he probably had no knowledge of the act of violation. We therefore concede to him the benefit of the doubt
and hold that the official returns must be here accepted as to both candidates, which show 32 votes for Carlos and 35
for Valenzuela.

Having concluded our survey of the results in those precincts where the contestant seeks the entire suppression of the
returns, we shall proceed to consider those precincts the returns from which have been brought into discussion under
the counter-protest; and in this connection we observe that the trial court, at the instance of the counter-protestant,
Carlos, totally suppressed the returns in the first and third precincts of Polo, the five precincts of Meycauayan, the two
precincts of San Ildefonso, and the third precinct of Angat. To these therefore in turn our attention will presently be
directed.

But before so doing it is necessary to dispose of the assignment of error (No. 1) directed to the action of the court in
permitting the contestee, Carlos, to amend his motion of counter-contest on the date of September 16,1919. In this
connection it appears that the original protest was filed by the contestant on June 23, 1919, and the original answer and
counter-protest was filed by the contestee on July 7, 1919. After this the cause was finally called for hearing, after a
single adjournment, on September 16, 1919, upon which date the amended counter-protest was submitted by the
contestee. Upon this date no proof had as yet been submitted by the contestant; and we are of the opinion that it was
clearly within the discretion of the court to admit at that juncture the amended counter-protest. Certainly it would be
difficult to discover the possibility of any legal prejudice resulting from that act to the contestant, no proof having as yet
been taken by either party. When in addition to this it is remembered that the taking of proof in this case was continued
over a period of more than one year, and that a considerable period of time intervened between the filing of the
counter-protest and the taking of any evidence whatever by the contestee in support of the allegations of his counter-
protest, it is quite evident the trial judge cannot now be put in error in having allowed the contestee to amend.

Polo; precinct 1.The appellant calls in question the action of the trial judge in having allowed the ballot boxes of this
precinct to be opened, it being insisted that the proper conservation of the same had not been sufficiently proved. We
are unable to agree with the appellant on this point; and we accept the testimony of Francisco Mendiola, who was
acting secretary of the municipality at the time of the election, in relation with that of his successor, Eugenio Agustinis,
as sufficient to show prima facie that the boxes were kept inviolate until they came under the care of the detachment of
the Constabulary that was sent to guard them, after which the boxes went into the custody of the clerk of the court.

The data upon which the trial judge mainly relied as his basis for the annulment of the election in this precinct consist of
certain facts which were revealed when the ballot boxes were opened, namely, first, that the list of illiterate voters and
incapacitated persons who required assistance was not found in the box where the inspectors said it had been placed;
secondly, the number of used ballots (435) found in the appropriate box was 7 less than the number of persons (442)
who appeared to have voted, while on the other hand the number of spoiled ballots (51) and unused ballots (114) was
sufficient, when added to the number of ballots actually used, to complete the exact number of ballots (600) delivered
for election purposes to the inspectors of this precinct. From this circumstance the trial judge inferred that 7 ballots had
been used outside the polls during the election for the fraudulent purpose of having the ballots prepared outside and
delivered to the intending voter, who in turn was required to bring back from the polling booth the clean ballot
delivered to him by the election officers. In this practice, the ballots thus illegitimately used serve the function of a
shuttle; and by means of even a single ballot, the votes of many may be controlled. In the view of the trial judge the 7
ballots thus illegally used in the first precinct of Polo must have been surreptitiously introduced after the election into
the box of spoiled and unused ballots through a slot which may have been left uncovered.

In addition to the circumstance above noted it was found upon examining the ballots cast in this precinct that more than
70 had been written with lead pencil, and this, notwithstanding the fact that indelible pencils had been supplied to the
election inspectors in sufficient number to supply all the booths. The inspectors testified that between 10 and 11 o'clock
on the morning of the election it was discovered that there were no pencils in three of the booths. The necessary
inference to be drawn from these facts is either that the indelible pencils had been surreptitiously taken from these
booths after the voting began or that such pencils had not been placed in the booths at all. At any rate the absence of
the indelible pencils from the voting booths during a part, or the whole of the day, must be taken as probably explaining
the appearance of the 92 ballots written with lead pencil.

All of the circumstances above referred to, taken together, and others of leas moment mentioned by the trial judge, are
not in our opinion sufficient to justify the annulment of the election in this precinct. It is not to be denied that there is
ground for a suspicion that one or more ballots may have been used in exactly the manner suggested, and it is
conceivable that ballots may have been thus illegally introduced into the boxes during the election. But taken together,
all this is matter of pure conjecture, and the circumstances mentioned do not in our opinion furnish any secure basis for
annulling the returns from the entire precinct.

As a consequence of the view we take of the facts relating to this precinct, all of the legal votes found in this box must be
counted. This means that we here concede to Carlos 17 votes and to Valenzuela 371, admitting certain ballots
challenged by the commissioners, as will appear hereafter.

Polo; precinct 3.Upon examining the ballots cast in this precinct there was found to be a discrepancy of one between the
number of persons who actually voted and the number of ballots found in the box of used ballots, while the total
number of used and unused ballots, plus the spoiled ballots, fell short by two of the total number of ballots delivered to
the election officers prior to the election for use in this precinct. In addition to this, the number of ballots which the
inspectors said they were able to identify as having been made out by themselves fell somewhat short of the number
which they should apparently have been able to identify as written in their script, having regard to the number of
illiterates who were shown by the registration lists to have sought assistance. Moreover, a number of voters in this
precinct who had personally prepared their own ballots stated, after looking through the ballots found in the box, that
the ballots prepared by them were not there.

In regard to the discrepancy of one between the number apparently voting and the number of used ballots, as well as
the shortage of two in the number of ballots necessary to complete the number of those originally here placed in the
hands of the election officers, the same must be said as was said of a similar discrepancy in the first precinct of Polo,
namely, that though these facts may excite suspicion they do not prove fraud in the sense necessary to nullify the
election. Nor in our opinion is a sufficient case made for the annulment of the election on the additional ground that
some 12 or 13 ballots which the inspectors apparently should have filled out for illiterate persons were not identified; or
that some voters who voted for Carlos said they did not find their ballots among those actually cast. Such proof we
consider of doubtful value, and the too ready acceptance of the inference drawn from it would in our opinion be
exceedingly dangerous to the security of election results. In this connection it should be borne in mind that when an
election is over, persons on the losing side whose position has not been publicly known may readily feign, as a matter of
vanity or policy, to have voted for the successful candidate, and if confronted with the proposition of identifying their
ballots, they naturally would hesitate to admit as theirs a ballot which possibly would contradict their pretensions in
respect to some one or another of the persons voted for. Moreover, election inspectors themselves might not
infrequently have good personal reasons for not at once recognizing the work of their hands. On the whole we are
inclined to minimize the weight of proof of this character; and at any rate the circumstances referred to, even if true, are
not in our opinion sufficient to justify the disfranchisement of the entire electorate in this precinct, as would result from
the annulment of the election.

The official returns from the third precinct of Polo must be therefore adhered to; and in this connection it will be noted
that no addition can be here allowed in favor of Carlos by reason of the statement of a number of voters who claim to
have voted for him but who said that their ballots were not to be found among the used ballots. The admission of these
votes would indeed amount to the holding of a second election by the court. Carlos can in consequence be credited only
with the 13 votes attributed to him in the official returns, while Valenzuela receives 244.

Meycauayan.The protestee submitted the testimony of numerous witnesses tending to show irregularities in the
conduct of the election in the various precincts of Meycauayan. The external irregularities thus charged, with respect to
the conduct of the election in the several precincts, as summed up in the appellee's brief, are substantially as follows:

In the first and second precincts the voters, so it is claimed, were permitted to crowd into the polling places without due
regard to the accommodations, with the result that two electors were sometimes found to be installed in a single
compartment at the same time; and in said precincts Hermogenes Lim, Moises Buning, and Alipio Pedro were permitted
to engage in improper activities as watchers, mingling among the voters, urging them to vote for certain candidates, and
unlawfully assisting some in the preparation of their ballots. By this means, it is contended, the secrecy of the election
was fatally impaired.

In the third precinct the voters are said not to have been duly identified; and an inspector, one Jose Padilla, a partisan of
Pio Valenzuela, is said to have paced to and fro during a great part of election day in front of the voting booths,
observing the voters and placing model ballots (plantillas) in their hands. As preparatory to the recount of the ballots in
this precinct, those cast for Arsenio Francia, one of the candidates for municipal president, were placed in a pile
separate from the pile containing the votes of his two opponents Hermogenes Lim and Pablo Noriega; and it is said that
the count was suspended while there yet remained in the box other ballots which were not examined.
It is also claimed that after the voting was finished in this precinct the registration list was augmented by adding the
names of persons not previously registered in order to adjust the list to the number voting.

In precinct 4 the voting was interrupted at one time during the day for a few minutessome of the witnesses say as long
as half an hourby the sudden appearance of a shrieking woman who, being pursued by a man armed with a bolo, sought
refuge in the polling place. This incident caused many of the people who were collected around the place to enter its
precincts; and as a result of the disorder the election inspectors jumped up, scattering over the floor the unused ballots
and other papers connected with the election.

Upon examining the proof in support of the irregularities mentioned above, it is quite apparent that such of these
irregularities as are actually proved do not have the significance that the attorneys for the appellee would have us
attribute to them, and they certainly could not be taken to justify the annulment of the election returns from these
precincts. Indeed, the attorneys for the appellee rely upon these irregularities not so much for the purpose of thereby
nullifying the returns from these precincts as for the purpose of showing the existence of irregularities and fraud
sufficient to justify the opening of the boxes and the examination of the ballots found therein.

The facts upon which the trial judge relied for the suppression of these returns were deduced by him chiefly from the
internal evidence of fraud, supplied by the contents of the boxes themselves. Upon these features of the case we shall
presently make some comment, but it must first-be stated that in our opinion by a clear preponderance of evidence
both internal and external, the ballot boxes in the several precincts of Meycauayan had been tampered with before their
contents were the subject of inspection in this case. It results that the facts revealed upon opening said boxes cannot
serve as a basis for setting the official returns aside. It is well settled as a legal proposition that where the evidence
shows that the ballot boxes have been ^violated and their contents changed, the original count must prevail; and it has
been held that the fact that some of the ballots in a box have been tampered with impeaches the integrity of all in that
box on a recount. (20 C. C. J., 255.) Before the ballots found in a box can be used to set aside the returns, the court must
be sure that it has before it the identical ballots deposited by the voters. (Rhode vs. Steinmetz, 25 Colo., 308; Cobb vs.
Berry, 168 Pac, 46.) Upon the point of the due conservation of these boxes, it appears that, prior to the trial in this case,
a contest over the municipal offices in this municipality had been instituted; and the contents of these boxes were
examined in that contest. It results that the seals have been broken, and the external appearance of the boxes at the
time of the trial afforded no proof either one way or the other upon the question whether they have been violated. But
wholly apart from this, the evidence of violation is conclusive.

A witness named Genoveva Pengson, school mistress, introduced by the contestant, testified that a short while after the
election she and others filled out the forms of about 150 official ballots, of which she herself fixed 30. This was done, so
she says, in the interest of the contest of one of the candidates for municipal president, the idea being that the ballots
thus fixed were to be surreptitiously introduced into the ballot boxes for the purpose of giving plausibility to his claims.
For other offices than that of municipal president the names of various candidates were inserted, as suited the whims or
preferences of the person writing the ballot.

We have no doubt that ballots were thus fabricated by Genoveva Pengson, and the proof of the statement is found in
the fact that she undoubtedly recognized and identified 18 of these ballots in the boxes of the third precinct. The only
doubt which we have entertained with reference to the testimony of this witness is whether or not those spurious
ballots might not have been fixed on or before the election and fraudulently intromitted on that day into the ballot box.
If a conspiracy to effect this had been made effective, this would doubtless have justified the annulment of the election
in this precinct; but taking the proof all together this court is unable to say that such fact is proved.

In connection with the testimony of Genoveva Pengson, and as corroborative of the inferences deducible therefrom,
may be mentioned the testimony of one Benigno Roque, sanitary inspector, who says that on or about Sunday morning
of June 22, 1919, he had occasion to go to the municipal building in Meycauayan upon an errand relative to the issuance
of a burial certificate, and that upon this occasion he passed into the office of the municipal secretary and saw the
municipal president, Liberato Exaltation, confronting some open ballot boxes and with numerous ballots on the table
before him, among which was a handful of mutilated ballots.

When it is borne in mind that Genoveva Pengson is corroborated by two witnesses as to the fact that ballots were filled
out by her,though said witnesses fix the time as the day of the election; and when it is further borne in mind that
Genoveva Pengson afterwards recognized her own handiwork in 18 of the ballots found in the boxes of the third
precinct, and that 59 mutilated ballots were found in the ballot box of the fourth precinct, which undoubtedly came
from some other box, the fact of the violation of the boxes must be considered conclusively established.

It is suggested in the opinion of the trial judge that the circumstance that 59 mutilated ballots were found in the box of
precinct 4 might be interpreted as showing that there was collusion among the inspectors of the election; but it is
impossible to see how this transfer of ballots from the box of one precinct to another could have been effected upon the
day of election before the official returns were made up. Nor is any reason discernible why such feat should have been
then undertaken.

In stating the conclusion that the violation of the boxes in these precincts is proved, we have not overlooked the proof
submitted by the contestee tending to show that said boxes were properly conserved, under the care of the appropriate
officials, from the time the election was held. This proof, we admit, was prima facie sufficient to justify the opening of
the boxes in this contest; but it is not conclusive and cannot prevail against the combination of facts showing that
violation occurred.

Bearing in mind, then, our assumption that some and perhaps all of the ballot boxes pertaining to the various precincts
of Meycauayan had been violated, we now direct our attention to the facts revealed upon the actual examination of said
boxes. In this connection it may be stated that upon opening the boxes in precinct 1, 4 used ballots were found to be
missing, and there was an excess of 7 among the spoiled ballots. Again, the inspectors recognized only 5 ballots as
having been prepared by them for illiterate persons, while 17 appeared to have sought assistance. Furthermore, one
Juan Bello, a voter in this precinct declared that he was unable to find his ballot among those contained in the box of
used ballots. From the facts above-mentioned his Honor inferred that 7 ballots had been illegitimately used outside of
the polling place for the purpose of shuttling prepared ballots into the election boxes, and that some of the votes of
illiterates, as well as that of Juan Bello, had been fraudulently substituted by other ballots. His Honor furthermore
suspected that 59 ballots found in the box of the fourth precinct with tops torn off, so that the precinct to which they
originally pertained could not be known, had been taken from the box of precinct 1. Whether this conjecture be true or
not cannot be known. But it is evident that, in conformity with our ruling upon the first and third precincts of Polo, the
official returns must here prevail.

In the second precinct, the two ballot boxes which should have contained respectively the used ballots and the spoiled
ballots were both found, upon being opened, to contain ballots which appeared to be in all respects legitimate ballots.
Of such ballots the first box contained 393 ballots and the other 95, which, being added together, make a total of 488, or
an excess of 88 over the whole number who voted. This indicates that something is wrong here, but what is the nature
of the trouble and whom does it affect? Perhaps it could be said that the boxes had simply been violated and these
excess ballots introduced after the election. But the trial judge entertained the view that many persons had voted more
than once in this precinct, resulting in an excess of ballots. This may have been the case, as there is some evidence
tending to show that on election day the voters were admitted to the polling place in this precinct without identification.
If so, the inspectors, at the beginning of the count, would have been confronted with the fact that they had decidedly
more ballots on hand than would be accounted for by the number who had voted. In view of this, it is a plausible
conjecture that the inspectors may have discarded excess ballots sufficient to reduce the number of used ballots to
about the number who ought to have voted. We may add that authority for such procedure to reduce an excess of
ballots is found in the Election Law ( Adm. Code, sec. 462).

Now it is evident that the official returns from this precinct were made up from the contents of the box containing 393
ballots, since by the official returns Carlos is here credited with 38 votes, and Valenzuela with 289, and in the box
referred to there were found 38 votes for Carlos and 288 for Valenzuela. The 95 ballots found in the other box therefore
probably represent discarded excess ballots; and upon inspection of these, it is found that only two bear the name of
Carlos while fifty bear the name of Valenzuela, and the remainder have no name in the space for the office of governor.
From this it is evident that if any of Valenzuela's followers voted a second or third time, this candidate could have gained
nothing by the process, since practically all of the discarded votes for governor bear his name. On the other hand, Carlos
benefited by the discarding of these votes since the proportion of votes thus discarded which bear his name was not by
any means equal to the ratio of his vote to that of Valenzuela in the box whose contents were counted. In this view of
the case, the irregularity supposed to have occurred was not prejudicial to Carlos; and therefore the election in this
precinct cannot be annulled at his instance on the ground of this irregularity.

In the third precinct, both boxes, upon being opened, were found to contain ballots which, to all appearance, might have
been legitimately voted; but as the number of electors actually voting was 175 it is evident that the official returns were
based upon the count of the box which contained exactly 175 ballots. Of these 105 were votes for Valenzuela and 32 for
Carlos. The other box contained 221 ballots in all and showed a decidedly higher percentage of votes for Carlos than the
box first mentioned (Valenzuela 78; Carlos 53). Of course this shows that something is wrong here also. The question is,
In what did the fraud or irregularity consist?

The trial judge in his decision notes the fact that the oath does not appear to have been here administered to the
illiterate voters, and that there was a failure to identify the voters prior to admitting them to vote. From this he
apparently inferred that repetition of votes occurred, with a consequent necessity on the part of the inspectors to
isolate and put into a separate box the large excess of ballots over the number of actual voters. Possibly this may to
some extent have been the case as in the second precinct, but the enormous excess of the votes that should have been
discarded (221) under this theory, suggests that some other factor was at work. We believe that these ballot boxes had
simply been stuffed after the election; and it was here, as will be remembered, that Genoveva Pengson found the ballots
that had been prepared by herself. When the two boxes of the fourth precinct were examined, there were found
altogether ballots used, unused, and mutilated, to the number of 659, or 59 in excess of the total number which had
been here delivered to the officers for election purposes; and in the first of these boxes there was a package of exactly
59 ballots with the tops torn off, apparently for the purpose of destroying evidence of the precinct to which these ballots
had been destined. The circumstance that 53 of them bear the name of Carlos raises a suspicionnothing morethat this
number of votes may somehow have been stolen from him; but all that we can say with certainty is that the ballot boxes
of these precincts had been violated: Their contents therefore cannot be used to subvert the official returns.

Upon opening the boxes of the fifth precinct of Meycauayan, 1 ballot of the 600 here delivered to the election officials
for purposes of the election appeared to be wanting, while the number of ballots found in the box of used ballots was 4
less than the number of persons voting. In addition to this 3 ballots prepared by one of the inspectors, Buenaventura
Desiderio, was found in the box of spoiled ballots,whether for Carlos or Valenzuela is not stated. In conformity with our
ruling upon the effect of similar irregularities in other precincts, it is necessary to hold that this election cannot be
annulled on account of the facts here stated.

But another circumstance is relied upon by the contestee to annul the election in this precinct, namely, that the boxes
were returned without any official count of the vote having been made at the place where the election was held. In this
connection it appears that the fifth precinct of Meycauayan is in a rural district, probably several kilometers distant from
the poblacion; and it is claimed by the contestant that immediately after the polls were closed, between 5 and 6 p. m.,
on election day, the inspectors opened the boxes and set out for the poblacion, carrying the boxes with them. Having
arrived at about 8 p. m., at the municipal building, or office of chief of police immediately adjacent thereto, they are
supposed to Have there opened the boxes and made up the returns. This incident is denied by persons concerned; but it
is conceivable that the inspectors may have done this thing, either from ignorance or some necessity arising from lack of
facilities for making the count at the polling place during the nighttime. Into these conjectures we shall not enter,
inasmuch as we are of the opinion that the election in this precinct should not be annulled by reason of said irregularity,
there being nothing to show that the official returns as made out are fictitious.

The result of the discussion relative to the contest in Meycauayan leads to the conclusion that the official returns must
be here adhered to, not only because the boxes have evidently been tampered with, thus destroying the probative value
of the ballots found in the boxes, but because the irregularities proved to have occurred in the several precincts are not
such as in our opinion would justify the annulment of the election. We therefore concede to Carlos in the five precincts
of this municipality 137 votes, and to Valenzuela 958.

San Ildefonso; precincts 1 and 2.His Honor wholly suppressed the returns from both precincts of the municipality of San
Ildefonso on account of certain irregularities in the conduct of the election; and although these precincts have many
voters, the vote was so nearly equally divided between Carlos and Valenzuela that the action taken affects the result to
the extent of only 4 votes in the first precinct and 13 in the second. The proof indicates in our opinion that during the
greater part of the day average conditions as regards order and decorum prevailed at the polling places in this
municipality; but as the day wore on and it became apparent that the voting facilities were inadequate to accommodate
the persons desiring to vote within the lawful hours of voting, the persons waiting to vote became impatient, and with
the connivance or consent of the election officers began to press into the polling places faster than they could vote. This
condition was more pronounced in the first precinct than elsewhere; and there is evidence tending to show that some of
the voters prepared their ballots outside of the voting booths, availing themselves for this purpose of school desks or
resting the ballots on the splays of the window. Moreover, it was observed that not infrequently the incoming voter
entered a booth before it had been vacated by his predecessor.

That some disorder of this kind occurred may be admitted, but we can feel no assurance as to its extent or duration; and
we think we would be attributing undue importance to it, if we should permit the ejection to be set aside in these
precincts on that account. We note in this connection that in the original counter-protest, the vote in San Ildefonso was
attacked by the contestee on the sole ground that ballots containing the name of Carlos had been erroneously misread
for Valenzuela, and it was only in the amended counter-protest of September 16, 1919, that charges appeared with
respect to the violation of the secrecy of the voting. It may therefore be inferred that the disorder above alluded to was
not of a character to have attracted general attention on election day, and hence it was probably not such as to have
vitally affected the expression of the voters' will. Certain other irregularities are mentioned in connection with the
election in these precincts, such as failure to identify the voters who presented themselves to vote, and the
circumstance that the number of illiterates in fact assisted by the inspectors was less than the number indicated in the
registration list as having asked for assistance. We consider the evidence in support of these irregularities insufficient to
merit serious attention.

We have looked with greater suspicion upon the activities of the president of the board of inspectors of the first
precinct, one Quintino Villacorte, who is said to have paced to and fro in the polling place, obtruding himself unduly
upon the attention of the voters, and exerting pressure upon them to vote for certain candidates. It is further claimed
that, upon receiving the ballots from voters, instead of inserting them at once into the ballot box, he did not hesitate to
open them on the pretext that they were improperly folded. Notwithstanding all this, we are persuaded that if there had
been any systematic fraud perpetrated here in the interest of Valenzuela, the result would probably have been more
conspicuous in the returns. Instead therefore of annulling the election in this municipality, we here adhere to the
election returns and concede to Carlos 311 votes and to Valenzuela 327.
Angat; precinct 3.The election in the third precinct of Angat may be said to have reproduced on a minor scale some of
the features of disorder that characterized the election in the first precinct of San Ildefonso during certain hours of the
afternoon; and it is perhaps sufficient to say that the case made for the annulment of the election here is decidedly
weaker than in the election in San Ildefonso. According to the testimony of Teodorico Santos, the voters came into the
polling place in good order and in proper succession until in the afternoon, when they began to crowd the place, with
the consequence that the election officials no longer checked off the voters as they entered; but after the election was
over, so this witness says, names were checked off in the registration list to correspond approximately with the number
who had voted. According to another witness, officious offers were made by inspectors here to write out the ballots of
persons who knew how to write. Our conclusion upon examining the proof is that irregularities of the character
mentioned have not been proved to the extent that would justify a court in annulling the returns. It results that in the
third precinct of Angat Carlos must be credited with 76 votes and Valenzuela with 151.

We now take up the discussion of the disputed ballots which are supposed to represent votes for the appellant
Valenzuela but which were rejected by the trial judge. In approaching this feature of the case, in order to abridge
discussion and avoid the constant repetition of rudimentary propositions, a word will be said as to the attitude of this
court in passing on the validity of ballots in general. The first and principal thing to be here stated is that voters should
be encouraged to write their own ballots so far as possible, and it is the bounden duty of every person ducting an
election to assist in the attainment of the freest possible expression of the will of the electorate through the voters
themselves. Consistently with this, the utmost liberality must be observed in reading the ballots, with a view to giving
effect to the intention of the voters. Where many are illiterate, the minor blemishes found on the ballots may be
expected to exhibit great variety, including errors of spelling, the casual making of blurs and erasures, to which may be
added unnecessary touches and flourishes with the pencil. None of these blemishes can be considered as affecting the
validity of the ballot, where an honest intention on the part of the voter to vote for certain persons is discernible in the
ballot. With respect to errors of spelling, or lack of finish in the written name, it may be said that no honest mistake, due
to ignorance or illiteracy, should be permitted to defeat the intention of the voter, if that intention is discoverable; and
in this connection the utmost liberality of construction must prevail.

We have held in this decision that if a surname is written as the name of a person voted for and this name is clearly a
different surname from that of the candidate, such vote cannot be counted for the candidate, even though the two
surnames in some respects resemble each other. For this reason, we have after some hesitation sustained the trial judge
in discarding several ballots, claimed by Valenzuela in which the surname Valencia is written. Subject to exceptions of
this character, the general rule for the guidance of the election inspectors and of lower courts must be to give effect to
the intention of the voter, whenever that intention is fairly discernible.

We may add that in order for a ballot to be considered marked, in the sense necessary to invalidate it, it must appear
that the voter has designedly placed some superfluous sign or mark on the ballot which might serve to Identify the ballot
thereafter. Genuine illustrations of such ballots, actually so marked by the voter, are of rare occurrence; and
considerations of public policy as well as of justice require that no ballots should be discarded as a marked ballot unless
its character as such is unmistakable.

Another point which has been several times ruled in this case is that a vote in favor of a candidate for a certain office is
not to be discarded merely because the name of the same person appears voted in connection with some other
different office, unless, of course, as would scarcely ever be the case, the court can infer that the voter deliberately
adopted this device as a means of identifying his ballot. To justify this inference there should be something more before
the court than the bare fact that the name is written under more than one office. Of course this ruling will not be
understood as permitting a single person to be voted for more than once for the same office, as for instance, if the voter
should repeat the name of the same candidate in voting for an office like that of councillor, where several are to be
voted for.
Polo; precinct 1.The trial judge threw out the returns from this precinct, as already stated, and among the irregularities
noted by him is the fact that many used ballots here found in the box appeared to have been written with a lead pencil
instead of the indelible pencil supposed to have been delivered to the inspectors for use in the election booths. In view
of the fact that we have reversed the trial judge in throwing out these returns, it becomes necessary to pass incidentally
on the validity of such of these ballots as are fairly open to question; and we do not hesitate to hold, in conformity with
the doctrine of Manalo vs. Sevilla (24 Phil., 609), that the mere circumstance that a ballot is written with a lead pencil,
instead of with an indelible pencil, does not invalidate the vote. True it is, this circumstance might in some cases be
relevant, in connection with other evidence, as tending to show that fraud was perpetrated, as for instance where
ballots are prepared away from the polls and fraudulently introduced into the ballot box during the course of the
election. But in the case before us, we do not consider the evidence sufficient to warrant the conclusion that any such
fraud was practiced. So far then as concerns being written with a lead pencil, none of these votes can be discarded.

Some 20 other ballots brought up to this court as Exhibits AAAA-73 to AAAA-92 of the appellant were not actually ruled
out by the trial judge, because of the fact that, for other reasons, he threw out all the votes of this precinct. But they
were challenged before the commissioners, and we have looked them over. In some there are manifest errors in spelling
the name Valenzuela, but in all the intention to vote for him is sufficiently manifest to warrant the admission of the vote.
In one, the word "gobernador" is added after the name Pio Valenzuela (AAAA75) ; in another, nine instead of eight
councillors are voted for, and the name of the last is below the bottom line enclosing the space for names of the
councillors (AAAA77); in another, a comma is inserted between Pio and Valenzuela (AAAA-81) ; in another, commas or
period are inserted between the Christian name and surname of the persons voted for as councillors (AAAA-82); in
another, the voter, evidently a very poor scribe, after vainly attempting to write the names of the persons for whom he
intended to vote as councillors, gave up the effort and covered the remaining space with illegible scrawls (AAAA-89).
These and other similar defects noted in these ballots we consider too trivial to require extended comment.

Polo; precinct 2.Of the 23 ballots (Exhibit 25-A to 25-U, inclusive) here rejected by the trial court all, with the exception
of one, in our opinion represent good and legal votes for Valenzuela and should be counted for him. Among defects
observable among these ballots, which the trial judge considered vital, but which in our opinion do not affect the validity
of the vote are these: Certain circular flourishes of the pencil over the space appropriate for votes for municipal
councillors, evidently made by the voter to indicate that he did not wish to vote for any person for that office (25-A); the
placing of the title "Dr." before the name of Pio Valenzuela and the making of an oblique mark over the space for
municipal councillors, after the name of the single person voted for in that space, the purpose evidently being to show
that the voter did not wish to vote for more (Exhibit B); the spelling "Poi" for "Pio," and the placing of a mark like the
initial stroke of the letter A in the space for municipal president, where the voter evidently started to write a name but
for some cause failed to finish (Exhibit C). In the same ballot there appear some superfluous scrawls in connection with
the initial letters of the names of two persons voted for as municipal councillors. These merely show that the voter, who
was evidently unversed in the art of penmanship, had difficulty in starting out to spell these names. In another ballot, a
triangular fragment, about the size of the print of one's thumb, has been torn out of the side of the ballot (Exhibit D), a
circumstance which to our mind could have no possible significance, regardless as to how and when this fragment was
torn off.

Exhibit 25-E was held to be a marked ballot by the trial judge for the reason that the voter in voting for members of the
provincial board first erroneously wrote the word Fortuto for Fortunato, the Christian name of one of the candidates for
this office. Observing his mistake, he cancelled the word Fortuto and wrote out the full name of the candidate correctly
in the next line below. It is evident that the ballot should not be considered a marked ballot by reason of the correction
of the error here first made by the voter. In the ballot 25-G, the voter first erroneously wrote the name of Pio Valenzuela
in the place for representative, but perceiving his mistake, he erased the name in that place, so far as he could, leaving a
blur, and wrote the name again in the place for the name of provincial governor. The vote for governor cannot be
rejected either because of the erasure or because the same name has been written twice in connection with two
different offices. The ballot 25-H should not be rejected for the error in the spelling of the name of the candidate voted
for, which is here written "Puo Balenzula;" nor is it vitiated by the further fact that nine persons are voted for as
municipal councillors instead of eighty one of the names being written below the line which marks the space for this
office. This irregularity can affect the ballot only as regards the office of councillors. The vote for Pio Valenzuela in ballot
Exhibit 25-1 is not rendered invalid by the circumstance that the voter first wrote the name of Leandro Cabral in the
space for municipal president but afterwards struck this out and wrote the name of Arcadio Constantino for the same
office. The ballot 25-J is not rendered invalid by reason of the illegible scrawls with which the space for municipal
councillors is covered, it being evident that the voter merely intended to indicate that he could not or did not wish to
vote for councillors. Nor is the same ballot vitiated by the fact that the words "Por tonto" are written in the space where
the voter might have placed the name of candidates for members of the provincial board. It is probable that he may at
first have intended to write the name of Fortunato Rivera in this space, but gave up the attempt. The ballot 25-K cannot
be rejected as marked for the mere reason that the word "Pare" (compadre) is prefixed to the name of one of the
persons voted for as municipal councillor. The ballot 25-L is not vitiated by the fact that the voter first wrote the name of
Leandro Constantino for municipal president, but perhaps thinking better of the matter, struck the name out. The ballot
25-LL is not rendered invalid by the circumstance that the name of Valenzuela is incorrectly spelled "Baranzuela," nor by
the further fact that the voter first wrote the name of a certain person for representative but later struck the name out
with repeated strokes of the pencil. The ballot 25-T is not vitiated by the circumstance that the word "Senador" is
prefixed to the name of Teodorico Sandiko, candidate for senator. The ballot 25-V should not be rejected because
among the names of the persons voted for as councillors there appear two names which it may be supposed are entirely
fictitious, namely, Agustin Bolsevik and Melecio Kaiser. The remaining ballots in this lot, for the most part, contain
repetitions of the errors above indicated, and which in our opinion do not justify the annulment of the ballot.

In the case of the ballot 25-T only, do we think it clear that the ballot must be rejected as a vote for Pio Valenzuela, for
all that is written in the space for the name of provincial governor are the words "Piu Gobernadur," which is not the
name of the candidate.

The 5 ballots 27-A to 27-E of course cannot be counted for Pio Valenzuela, as governor, since in this ballot he is voted for
only as candidate for representative.

The result of our review of these ballots is that Pio Valenzuela is entitled to 22 more votes in the second precinct of Polo
than the court allowed him, that is to say, we here concede to Carlos 19 votes and to Valenzuela 296.

Bustos; precinct 3.Of the 7 ballots claimed by Valenzuela and discarded by the trial judge in the third precinct of Bustos,
all are in our opinion good ballots and must be counted for him. The only defect from which 2 of these are supposed to
suffer is that of being written in lead pencila circumstance which, as we have repeatedly held, does not affect their
validity. In both of these the voters began writing the first name with an indelible pencil but as the paper did not take
the coloring matter freely, they discarded the indelible pencil and had recourse to a lead pencil. The ballot 13-C should
not have been considered a marked ballot even assuming, as the trial judge supposed, that the name written for vice-
president was Juanito Lopez. As a matter of fact the name there written is Jacinto Lopez. The ballot 13-H is good though
voter made more than one superfluous touch with the pencil in starting to write the names of persons voted for, and he
also voted for nine councillors, instead of eight, the name of one being outside of the proper space. In ballot Exhibit I the
voter made a horizontal stroke, 1 inch in length, immediately over the name of one of the persons voted for, and he
gave further variety to the ballot by placing periods between the Christian name and surname of many of the persons
voted for. Neither of these details in anywise affect the validity of the ballot. The ballot 13-K is supposed to be marked
by reason of the fact that a woman (Maria Desiderio) is voted for as member of the council, but this cannot affect the
validity of the vote for governor. We believe at least two more of the ballots of this series discarded by the trial judge
were good, but as no question has been made as to them by the appellant, they are here ignored.

Baliuag; precinct l.Of the 18 ballots of the series of Exhibits U which the trial judge discarded in this precinct, all are in
our opinion good except 2. No. 8 of this series cannot be counted for the contestant because the surname of the person
voted for is written Valencia, which is a well-known and different surname from Valenzuela. No. 15 of the same series
was rejected by the trial judge as a marked ballot. We acquiesce in this action as the figures, or letter, written near the
bottom of the ballot may have been designedly placed there by the voter with a view to the possible future
identification of the ballot, and there are no indicia connected with the mark which would enable us to reverse the
finding of the trial judge. No. 17 of this series is not rendered invalid by the circumstance that the voter prefixed a series
of numerals (1-8) before the names of the persons voted for as municipal councillors. These numerals were evidently
placed merely to enable the voter to keep account of the exact number of names which he proposed to write. Other
defects noted in ballots of the same series are in our opinion trivial, such as accidental blurs, erasures, casual check
marks, superfluous touches or flourishes with the pencil, and the placing of dashes in spaces which are designedly left
vacant. None of these defects in the ballots before us are sufficient in our opinion to invalidate them.

As a consequence of this revision Carlos is to be credited in this precinct with 151 votes and Valenzuela with 50.

Baliuag; precinct 2.Of the 9 disputed ballots of the series of Exhibits V, rejected by the trial judge in this precinct, all but
3 are in our opinion good ballots. No. 6 of this series may be considered marked by reason of having a printed slip
pasted in this place for representative and bearing the name Ricardo Gonzalez. No. 9 was rejected as a marked ballot by
the trial judge by reason of the fact that the letter 0 has been placed in the upper right hand corner of the space for
provincial governor. This mark was evidently written with the same sort of pencil as that used by the voter, and
conceivably it may have been designedly there placed by him with a view to the future identification of the ballot. ,At
any rate there are no indicia connected with the mark that would justify us in reversing the judge's action, for which
reason we acquiesce in the rejection of this ballot. No. 10 cannot be counted for the appellant for governor since his
name is written in the space for representative. Other defects noted in these ballots are a mere repetition of features
repeatedly mentioned by us on passing over other ballots, and the ballots are not vitiated thereby.

As a result of this revision Valenzuela is entitled to 6 votes in addition to those conceded in this precinct by the trial
judge, with the result that Carlos is here to be credited with 168 votes and Valenzuela with 204.

Baliuag; precinct 3.Of the 2 disputed ballots coming from this precinct we concede to Valenzuela the first, which is
merely written with a lead pencil and exhibits no other defect. The second cannot be counted for him since the surname
written in the space for governor is not the name Valenzuela.

As a result of this revision Carlos receives 164 votes in this precinct and Valenzuela 126.

Baliuag; precinct 4.Of the 30 disputed ballots of the series of Exhibits T coming from this precinct all without exception
are in our opinion good votes for Valenzuela. No. 1 is not rendered invalid as a vote for Valenzuela for the office of
governor by reason of the fact that his name also appears as one of the two individuals named for members of the
provincial board. Nos. 9 and 11 were rejected as marked by the trial judge by reason of the fact that in the extreme
upper left hand corner of these ballots appears a mark somewhat like the arithmetical radical sign used to indicate the
extraction of a root. The same mark appears in a number of other ballots of the same series, and as these ballots are all
apparently written in the same hand it may be supposed that they were the work of some inspector who assisted
illiterate voters. Certainly the voter cannot be held responsible for this caprice, and the ballots must be considered good.
Other defects supposed by the trial judge to vitiate certain ballots of this series constitute merely a repetition of
blemishes which we hold to be immaterial, in conformity with our ruling upon other ballots. There is, however, one
feature noticed in connection with some of these ballots to which attention should be directed. It is that on the back of
some there appears certain pencil strokes which have evidently been placed thereon by some person other than the
voters, doubtless with the intention of annulling these ballots. So palpable a fraud cannot be permitted to defeat the will
of the voter.
As a consequence of this revision we concede to Carlos in the fourth precinct of Baliuag 167 votes and to Valenzuela
917.

Baliuag; precinct 6.The action of the trial judge in discarding 3 ballots claimed by the contestant in this precinct must be
sustained. Of these one cannot be counted for Valenzuela because the name of the person voted for is written Pedro
Valenzuela. The other two must be considered marked ballots by reason of the fact that a printed slip bearing the name
of Ricardo Gonzalez is pasted in the space where the name should have been written of the person voted for.

As a consequence, the vote for the two candidates in this precinct must stand as declared by the trial judge, or 93 votes
for Carlos and 165 for Valenzuela.

Pulilan; precinct 1.The 2 ballots (PPP-1 and PPP-2) of which the contestant was deprived in this precinct are clearly good.
In one the pencil used by the voter was repeatedly dampened with the result that the coloring matter shows a
disposition to spread. These blurs cannot affect the validity of the vote. The other ballot has evidently come in contact
with a drop of ink as a result of which there is an ink stain on the back of the ballot. For this the voter cannot be held
responsible.

As a consequence of this revision Carlos receives 42 votes in this precinct and Valenzuela 98.

Pulilan; precinct 2.Of the 12 ballots of the series of Exhibits ÑÑÑ, here discarded by the trial judge, the following 9 we
declare to be valid: No. 1, a ballot marked with a cross (+) in the space intended for one of the two to be voted for as
members of the provincial board, the evident intention of the voter being merely to indicate thereby that he did not
intend to vote for more than one for this office; No. 4, a ballot evidently written by a very ignorant and illiterate voter in
which the initial letter of Teodorico Sandico, for senator, was at first incorrectly written, whereupon the voter left this
letter alone and made a second and more successful attempt. In the same ballot the name of Pio Valenzuela is written
Pio Talenzuela, it being evident that the voter simply did not know how to make a V. No. 5, a ballot containing a light
curved stroke with the pencil below the name of the sole person named for councillor, erroneously supposed by his
Honor to have been designed as a mark, is good. Nos. 6 and 7, two ballots wherein the name of Pio Valenzuela is badly
written, but the intent to write his name is manifest, are also good, as in Not 8, a ballot in which the voter, after writing
by mistake the name of Fortunato Rivera in the place for governor, erased that name and wrote over it that of Pio
Valenzuela, the person for whom he intended to vote. No. 9, in which the voter in writing the names of the candidates
for councillor indulged the pleasantry of prefixing the title "Emperador" before the name of one and "Consejo de
guerra" before that of another, is not invalidated as to the vote for governor by this fact. No. 16, in which the name first
written for municipal vice-president was struck out and blurred over with pencil marks, we also hold to be a good ballot.

On the other hand, we approve of the action of the trial court in rejecting a ballot which contains an impertinent
expression in Tagalog in the space wherle the names of persons voted for as councillors should have been placed (No. 2),
and one in which the name of the person voted for is truly illegible (No. 3). No. 13 of the same series was also properly
rejected as a vote for Pio Valenzuela, inasmuch as the name there appearing is merely "Pio Valen." The voter here may
have decided that he did not wish to vote for Pio Valenzuela at all, and for this reason may have left the name
unfinished.

As a consequence of this revision Carlos is to be credited in this precinct with 28 votes and Valenzuela with 171.
Pulilan; precinct 3.Of the 4 votes discarded by the trial judge in this precinct, 2 are good votes for Pio Valenzuela,
notwithstanding the fact that the scribes were so illiterate that the name as written is almost, though not completely,
illegible. The other 2 cannot be counted for Pio Valenzuela, for governor, since the name is written in the space for
representative.

As a consequence of this revision Carlos received 81 votes in this precinct and Valenzuela 294.

Pulilan; precinct 4.Of the 21 disputed ballots from this precinct of the series LLL, we concede to Valenzuela the
following: No. 5, which is without a blemish; No. 6, in which the name first written by the voter for municipal president
has had another name written over it in some other hand, an irregularity which cannot affect the vote for governor; No.
7, where one of the two names originally written for members of the provincial board was erased by the voter; No. 8,
where the name of Valenzuela is poorly written, but legible; Nos. 10, 13, 14, 15, 16, 17, 18, and 24, for the same reason;
No. 21, where the first part of the name of Teodorico Sandiko was repeated by the voter, but erased, in the space above
where the name should have been written; Nos. 26 and 27 are good notwithstanding the blurs made by the illiterate
voter in attempting to improve the results of his penmanship. On the other hand, Nos. 1, 2, 3, 4, and 29 are bad because
the name of Valenzuela is here placed in the space for representative; while No. 20 is bad because illegible.

Eighteen other ballots of the series of Exhibits MMM cannot, in our opinion, be counted for Valenzuela though formally
good, since these votes were found in the box of spoiled ballots, and all except 2 are indorsed "inutilizada." Our surmise
is that these are "excess" ballots which may possibly have been separated by the inspectors from the other used ballots
pursuant to the provisions of section 462 of the Administrative Code (1917). Even after discarding these votes, the
number of used ballots which where counted are said by the attorney for the appellant to be six in excess of the number
of persons reported to have voted. Whatever the irregularity here may have been, it cannot now be cured.

As a consequence of this revision Carlos is entitled to be here credited with 76 votes in the fourth precinct of Pulilan, and
Valenzuela 264.

Bocaue; precinct 1.The ballot here discarded as a marked ballot, bearing the letters "Por su na" in the space for
members of the provincial board, is a good ballot. The voter probably intended to write Portunato Rivera here, but did
not command the requisite skill in writing (QQQ). The 8 ballots of the series of Exhibits RRR, which were discarded by the
trial judge, affirming the action of the inspectors of election, are all good votes for Valenzuela. The defects from which
they are supposed to suffer, such as slight blurs and insignificant erasures, in no wise affect their validity.

As a result of this revision Carlos receives 83 votes in this precinct and Valenzuela 141.

Bocaue; precinct 2.The three ballots here eroneously rejected by the trial judge on the ground that they are written with
a lead pencil must be credited to the contestant. With this correction the vote of Carlos in this precinct is 144 to 163 for
Valenzuela.

Bocaue; precinct 3.The three ballots of the series of Exhibits VVV, of which the appellant was here deprived on the
ground that nine persons were voted for as councillors, one name being written outside of the space for such office,
must be restored to him, as this irregularity in the ballot with respect to councillor could not affect the legality of the
vote for governor. Of the seventeen ballots of the series of Exhibits UUU, which were rejected by the inspectors and by
the trial judge as defective ballots, the following are good votes for Valenzuela, namely, Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 11,
12, and 13, since the defects from which they are supposed to suffer are not sufficient to render them invalid. These
ballots merely reproduce in one way or another various trivial defects which we have repeatedly held to be of no
moment. On the other hand, Nos. 10, 14, 15, 16, and 17 of the same series are rejected because the name of Pio
Valenzuela is written in the space reserved for the office of representative.

By reason of this revision the vote in this precinct stands 123 for Carlos and 167 for Valenzuela.

Malolos; precinct 2.Of the nine disputed ballots coming from this precinct of the series of Exhibits 14-A to 14-1 only the
second ballot can be pronounced invalid as a vote for Valenzuela as governor. His name is here written in the place
where the representative should be voted for. The name of Valenzuela, for governor, is badly spelled in some of these
ballots; and in at least one the name is almost, but not entirely, illegible.

As a result of the revision in this precinct Valenzuela is entitled to receive eight more votes than are conceded to him by
the trial judge, with the result that in this precinct Carlos should be credited with 220 and Valenzuela with 164 votes.

Malolos; precincts 1, 5, 7.In the revision effected by the trial judge the votes of the rival candidates in these three
precincts have been combined; and error has been assigned by the appellant with respect to only two ballots from the
fifth precinct, which were discarded by the trial judge. The first of these is not rendered void by reason of the fact that
the voter evidently by error voted for a certain person as member of the provincial board but perceiving his error
crossed that name out and placed the same name in the space for municipal president. As regards the other the trial
judge states that the ballot is written in two different hands. In our opinion the whole ballot was written out by a single
person and must be counted.

As a result of this revision Valenzuela is entitled to two additional votes in the fifth precinct, with the result that the total
vote for the two candidates in the first, fifth, and seventh precincts of Malolos should stand as 423 for Carlos and 285 for
Valenzuela.

Malolos; precinct 6.The four disputed votes coming from this precinct of the series 17-C to 17-F which were discarded by
the trial judge for one reason or another, in some cases more fanciful than real, should in our opinion be counted for
Valenzuela. The name of Pio Valenzuela as written in the ballot 17-F is in some respect incomplete, but the scribe was
evidently very illiterate and his efforts at expressing the name of the person voted for must be interpreted in the sense
most favorable to giving effect to the vote.

As a result of this revision Carlos is entitled to be credited in this precinct with 81 votes and Valenzuela with 176.

Bigaa; precinct 1.The 3 ballots AA, AA-1 to AA-2 of which the contestant was deprived in this precinct on the ground that
two are written in pencil and one in ink, instead of being written with an indelible pencil, must be restored to him in
conformity with our repeated ruling upon this point.

As a consequence of the revision in this precinct Carlos received 244 votes and Valenzuela 103.

Guiguinto; precinct 1.Of the ten disputed ballots of the series of Exhibits GG, discarded by the trial judge, all except one
represent good votes for Valenzuela and must be counted for him. No. 1 of this series cannot be counted for him
because the surname written by the voter is Valencia, which is a well-known and different surname from that of the
contestant. The defects from which the other ballots are supposed to suffer are such as we have repeatedly declared to
be immaterial and repetition of details is unnecessary.

As a consequence of this revision the appellant is entitled to be credited with nine more votes than were conceded to
him by the trial judge, with the result that Carlos here received 107 votes and Valenzuela 113.

Guiguinto; precinct 2.Of the ten disputed ballots of the series of Exhibits HH, which were discarded by the trial judge in
this precinct, all without exception represent good votes for Pio Valenzuela and must be counted for him. Two of these
ballots are written with lead pencil, and the defects imputed to others consist of trivial blemishes requiring no comment.

As a result of this revision the appellant is entitled to six more votes than were conceded to him by the trial judge in this
precinct, with the result that Carlos here receives 86 votes and Valenzuela 95.

Santa Maria; precinct 2.Of the sixteen disputed ballots of the series FF from this precinct, which were discarded by the
trial judge, all in our opinion contain valid votes for Valenzuela and must be counted for him. No. 1 of this series is not
rendered invalid as a vote for Valenzuela by reason of the fact that the voter after writing the name of one person for
municipal councillor, with evident intention of abbreviating his labors, added "todos los concejales."

As a consequence of this revision Valenzuela is here entitled to receive sixteen more votes than were conceded to him
by the trial judge, with the result that Carlos should be here credited with 193 votes and Valenzuela with 83.

Marilao; precinct 1.The ballot ZZZ-1 here discarded by the trial judge on the ground that it is a blurred or marked ballot
is practically without blemish, though written by a person who was not a skillful writer. The blurs on the ballot ZZZ-2 in
no wise affect its validity. Both must be counted for the contestant.

Of ten of the disputed ballots of the series YYY, discarded by the trial judge, all except two are in our opinion free from
any defect that would invalidate the ballot. No. 3 of this series should be counted for governor although he is also voted
for another office. Nos. 1 and 2 cannot be counted for Valenzuela because the name written for the office of governor is
Valencia, a well-known surname which though in some respects similar to Valenzuela is materially different therefrom.

As a result of this revision Valenzuela is entitled to ten more votes in this precinct than were conceded to him by the trial
judge, with the result that Carlos is here entitled to be credited with 64 votes and Valenzuela with 182.

Having completed our revision of the questions presented upon this appeal, whether relating to the annulment of the
returns from certain municipalities and precincts en toto or to the rejection of particular ballots, it remains to
consolidate the results. This is effected in the subjoined table, which contains a complete statement of all returns, as
revised, which have been the subject of attack either in the contest or in the counter-contest. It will be remembered,
however, that both parties abstained from submitting proof in regard to some of the precincts originally questioned by
them, and as to these the trial judge simply followed the official returns. These returns are of course also adopted by us.
As to the votes in other precincts both parties have acquiesced in the conclusions of the trial judge, with the
consequence that his estimate of the votes in such precincts remains unchanged. For the rest, the figures appearing in
this table are such as are adopted by this court as showing the true results of the election in the several municipalities
concerned, in conformity with the preceding opinion.
(Valenzuela vs. Carlos G. R. No. 17565 December 07, 1921)

This decision, and more, can be found at https://www.digest.ph/decisions/valenzuela-vs-carlos

To the foregoing totals there remain to be added the votes that have never been questioned at any time. These embrace
the returns from the municipalities of Calumpit, Hagonoy, San Jose, San Miguel, and the first precinct of Angat. The
official returns here show a total of 2,667 for Carlos and 1,364 for Valenzuela; and in this connection we note that in the
summary of these returns contained in the opinion of the trial judge, the vote for Valenzuela in the second district of San
Miguel is made to appear as 53 when in fact it was only 33. Clerical errors of this kind are of course corrected by this
court without regard to whom they may affect.

Combining this corrected total with the revised returns shown in the table, we have for the final and definitive result,
the following:

For Valenzuela............................................... 10,282

For Carlos..................................................... 9,852

Plurality of Valenzuela........................

In the light of the foregoing revision of the returns, it becomes our duty to reverse the judgment of the trial court and to
declare, as we hereby do declare, that in the general election of June 3, 1919, Pio Valenzuela was duly elected to the
office of governor of the Province of Bulacan, having received 10,282 votes, as against 9,852 for Juan B. Carlos, and
7,187 for Silvino Lopez. Judgment will accordingly be entered to this effect, and, a certified copy of the result as
determined by this court will be forwarded to the provincial board of the Province of Bulacan in its capacity as provincial
board of canvassers, with directions to amend its count and certify the result accordingly. Costs of both instances will be
paid by the appellee. So ordered.

Araullo, C. J. Malcolm, Avancena, Villamor, Ostrand, Johns, and Romualdez, JJ., concur.

G.R. No. L-4017             August 30, 1951

THE PEOPLE OF THE PHILIPPINES, ET AL., petitioners-appellants,

vs.
JOSE C. ZULUETA, respondent-appellee.

Office of the Solicitor General Felix Bautista Angelo and Special Counsel Pedro Quinto for petitioners and appellants.
Manuel C. Briones and Mariano A. Albert for respondent and appellee.

BENGZON, J.:

Review of decision of the Court of Appeals that annulled the order of Hon. Juan R. Liwag, Judge admitting the amended
information filed in Criminal Case No. 11232 of Manila.

There is no question about these facts:

1. On October 15, 1949 an information was filed in said criminal case charging Jose C. Zulueta with the crime of
malversation of public property. Copy of the information is appended hereto (App. A.). The substance of the accusation
is that the accused, as Acting Chairman of the Surplus Property Commission, wilfully or thru abandonment permitted
Beatriz Poblete to take and convert 3,000 kegs of nails of the aforesaid Commission. It is alleged that he secured the
approval of sale to her of said nails at very low prices by "astutely" prevailing upon Commissioner Angel Llanes to
approve it on the pretext of urgency to expedite the liquidation of surplus properties. As an alternative charge the
information states that at least through abandonment the accused permitted Beatriz Poblete to carry the hardware
away.

2. Arraigned on November 24, 1949, the accused pleaded "not guilty."

3. On January 14, 1950, the prosecution submitted an amended information (App. B), which practically reproducing the
original accusation, contained the additional assertion — among others — that in permitting the misappropriation the
accused Jose C. Zulueta  acted in conspiracy  with Commissioner Llanes, who had subsequently been booked for
malversation of the identical public property (nails) in Criminal Case no. 11727 of the same court.

4. The accused objected to the admission of the amended information contending that it introduced allegations about
acts and omission constituting another offense, and that the amendments were substantial and prejudicial to his right.

5. The court admitted amended information by its order dated February 28, 1950.

6. Having failed a in a motion to reconsider, the accused started proceedings on certiorari in the Court of Appeals to
annul the last mentioned order of admission.

7. The appellate court upheld his contentions. Hence, the People presented this petition for review, which was given due
course.

The issue require application of the principles that after the defendant has pleaded, the information may be amended as
to all matters of form, in the discretion of the court, when the same can be done without prejudice to the rights of the
defendant. (Sec. 13, Rule 106). At that stage, no  substantial  amendment may be permitted.

The question for decision is: Was the amendment purely a matter of form? Or did it touch upon matters of substance?

The amended pleading, with its deletions, transportation and rephrasing, practically added a full page to the original
seven-page information. Seeing the prosecution's insistence in its admission, to the extent of appealing to this Court
even at the risk of delaying the proceedings, one would naturally suppose that its moves are dictated by the necessities
— neither formal nor unsubstantial — of the case for the People.

Indeed, contrasting the two informations one will perceive that whereas in the first the accused is charged with
misappropriation, of public property because: (1) he deceived Angel Llanes into approving the bargain sale of nails to
Beatriz Poblete or (2) at least, by his abandonment he permitted that woman to obtain information a third ground
responsibility is inserted, namely, that he connived and conspired with Angel Llanes to consummate the give-away
transaction.

Again it will be observed that the third ground of action in effect contradicts the original theory of the information: if the
accused  conspired  with Llanes, he did not  deceive  the latter, and did not by mere  negligence  permit the sale.

Now therefore, an amended information stating forth a different manner of committing the felony, — a totally new
proposition-does it merely introduce a formal amendment?

We do not think so. Even in civil cases — wherein the rules are more liberal as to amendments — its not generally
permissible to alter plaintiff's theory of the case, alteration being substantial. 1

In this connection it must be recalled that under the rules of criminal procedure there is further limitation to formal
amendments, namely, that the amendment "can be done without prejudice to the rights of the defendant." Surely the
preparation made by herein accused to face to meet the new situation. For undoubtedly the allegations of conspiracy
enables the prosecution to attribute and ascribe to the accused Zulueta all the facts, knowledge, admission and even
omissions2 of his co-conspirator Angel Llanes in furtherance of the conspiracy. The amendments thereby widens the
battlefront to allow the use by the prosecution of newly discovered weapons, to the evident discomfiture of the
opposite camp. Thus it would seem inequitable to sanction the tactical movement at this stage of the controversy,
bearing in mind that the accused is only guaranteed two-days' preparation for trial. Needless to emphasize, as in
criminal cases the liberty, even the life, of the accused is the at stake, it is always wise and proper that he be fully
apprised of the charges, to avoid any possible surprise that may lead to injustice. The prosecution has too many facilities
to covet the added advantage of meeting unprepared adversaries.

Some passages from "Regala  contra  El Juez de Juzgado de Primera Instancia de Bataan" 3 are quoted by petitioners.
Therein the accused pleaded not guilty to an formation for murder, and later the fiscal amended the indictment by
including two other persons charged with the same offense and alleging conspiracy between the three. Five justices held
that the amendment was not substantial. But that situation differs from the one at bar. The amendment there did not
modify the basic theory of the prosecution that the accused had killed the deceased by a voluntary act and deed. Here
there is an innovation, or the introduction of another alternative imputation, which, to Make matters worse, is
inconsistent with the original allegations. In view of the above, we believe it unnecessary to discuss the defendant's
proposition that the original information did not actually describe the crime, of malversation (but only of theft), which
the amended information sets forth. Neither is it unnecessary to pass on the other minor amendments objected to.

One other point remains to be threshed out. The petitioners insist that  certiorari is improper, because the accused has
an adequate remedy by appeal. Of course these special civil actions may not generally be entertained if the party has an
adequate remedy by appeal. However there have been exceptions. (Cf. Moran 3rd Ed. Vol. II, p. 148). For instance, in Yu
Cong Eng  vs.  Trinidad 47 Phil. 385 this Court took cognizance of a petition for certiorari and prohibition notwithstanding
the accused could have appealed in due time. The Court's action was premised on the public welfare and the
advancement of public policy, in view of the many merchants interested in the Chinese Bookkeeping Law.

In  Dimayuga vs. Fajardo  (43 Phil., 304) this Court admitted a petition to enjoin the prosecution of certain chiropractors.
Although these could have appealed if convicted, the petition was given due course for the orderly administration of
justice to avoid possible oppression by the strong arm of the law.

And  Arevalo vs. Nepomuceno  (63 Phil. 627), was a petition for certiorari to challenge the trial judge's action permitting
an amended information. This Court passed on the petition, despite the availability of appeal at the proper time.

Now, inasmuch as the surplus properly cases have attracted nationwide attention, making it essential to proceed with
dispatch in the consideration thereof, and inasmuch as the Court of Appeals delving into the legal question has reached
a conclusion which we do not reckon to be erroneous, it would not be in furtherance of justice presently to dismiss the
whole proceedings on the technical ground that the accused has a remedy by appeal at the proper time.

Wherefore the judgment under review will be affirmed. No costs.

Paras, C.J., Feria, Pablo, Padilla, Tuason and Reyes, JJ., concur.

APPENDIX "A"
REPUBLIC OF THE PHILIPPINES
IN THE COURT OF FIRST INSTANCE OF MANILA
SIXTH JUDICIAL DISTRICT

——————

[Criminal Case No. 112323 for Malversation; of Public Property]

THE PEOPLE OF THE PHILIPPINES,

Plaintiff,

VERSUS

JOSE C. ZULUETA, Accused.

——————

INFORMATION

NOW COMES the undersigned Special Attorney, Division Special Attorneys of the Office of the Solicitor General, and
appointed by the Secretary of Justice as Special Counsel under Article 1686 of the Revised Administrative Code and
accuses JOSE C. ZULUETA Of a violation of Article 217 of the Revised Penal Code committed as follows:

That on or about the period from January 10, 1949 to April 6, 1949, and for sometime prior and subsequent thereto, in
the Cities of Manila and Rizal, Philippines, the herein accused Jose C. Zulueta after having been duly appointed to the
Office of Acting Chairman of the Surplus Property Commission, qualified and discharged and Performed the functions
and duties pertaining to his aforementioned public office; that as such Acting Chairman of the Surplus Property
Commission the herein accused was entrusted and charged with proper "administration, care, custody protect
disposition and sale" and "under such terms and conditions  as may be deemed advantageous" to the Government, of
the surplus properties acquired under the Agreement between the United States of America and the Republic of the
Philippines as approved by the Congress of the Philippines under of the Republic Act No. 33, which by virtue thereof
have become public properties for which the said accused Jose C. Zulueta was and is accountable by reason of his said
position; that during the period from January 10, 1949 to April 6 and 1949, for sometime prior and subsequent thereto,
in the City of Manila, Philippines where the offices of the Surplus Property Commission were located and in the City of
Rizal where the said accused as Acting Chairman established subsidiary office without the consent of the commission
and over and above the objection of the Auditor, the said as Acting Chairman of the Surplus Property Commission, did
then and there wilfully, unlawfully, feloniously and fraudulently consent or at least, through abandonment permit one
Beatriz Poblete to take and misappropriate, as she did take and misappropriate Depot No. 14 of the Surplus Property
Commission 3,000 kegs of surplus nails in the following manner; That on January 10, 1949 Mrs. Constantina Reyes filed
with the Surplus Commission an offer to purchase nails at Depot No. 14 at seventy per cent (70%) of procurement cost
and immediately thereafter the accused assumed almost absolute control over the processing, offers to purchase and
invoices for nails; that thereafter appeared offers to purchase and invoices in the name of Beatriz Poblete, Jose del
Rosario, Ruben Adriano and Eugenia Adriano purportedly dated and filed "January 17, 1949", but in fact not officially
filed on that day but sometime between January 18 and January 26, 1949, for the purchase of nails in Depot No. 14
at  twenty-five per cent (25%) of procurement at as follows:

Kegs (SALVAGED) at 25 per cent of

Procurement cost

Beatriz Poblete 3,000

Jose del Rosario 3,000

Ruben Adriano 1,500

Eugenia Adriano 4,020

that on January 18, 1949, Depot No. 14 was frozen allegedly preparatory to public bidding, which was not carried out,
but in fact was to prevent the filing of other offers at a higher percentage; that on February 5, 1949, Depot No. 14 was
declared open for negotiated sale; that on February 7, 1949, the following offers to purchase nails, SALVAGED at Depot
No. 14 at one hundred per cent (100%) of procurement cost, were duly filed:

Eastern Commercial Corporation by:

Kegs (SALVAGED) at 100 per cent of

Procurement cost

Constantina Reyes 2,225

Lourdes Angeles David 1,500

Fortunata Estanislao 2,010

Grato Ranara     750

Jacinto Baldeo       12

Clarito Baldeo       12

that on or about 16, or 18, 1949, the set of invoices of Eastern Commercial Corporation filed by Constantina Reyes,
Lourdes Angeles David, Fortunate Estanislao, Grato Ranara, Jacinto Baldeo, and Clarito Baldeo, all at 100 per cent of
procurement cost, were unanimously, recommended by then Technical Review Committee of five (5) members, and by
the Sales Manager, for approval of Surplus Property Commission, while the act invoices of Beatriz Poblete Jose del
Rosario, Eugenia Adriano and Ruben Adriano, all at 25 per cent only of procurement cost were "conditionally"
recommended by only two of the five members of the said Technical Review Committee; that on February 23, 1949 the
set of invoices of Eastern Commercial Corporation by Constantina Reyes, and others, at 100 per cent of procurement
cost was submitted to the Acting Chairman, the accused Jose C. Zulueta and to Commissioner Romero Llanes; that
Commissioners Romero and Llanes upheld the opinion of the Auditor that "nails" were "critical" materials and must be
bidded in accordance with Presidential directive on the matter; [that] the, (said accused, Acting Chair-man Jose C.
Zulueta [did not oppose this opinion and] the set of invoices were returned to the Sales Manager, but, upon a petition
for reconsideration filed by the parties concerned, the same set of invoices were again submitted to the Commission for
further consideration; that on March 2, 1949, the Surplus Property Commission received the letter of the Procurement
Office dated February 25, 1949, advising that said Office is ready to acquire all the "stock of 4-inch to 6-inch long nails
available at the time in  Engineering Depot No. 14"; that the Acting Chairman, the accused herein, in order to subserve
his ulterior interested purposes, did not indorse to Commissioner Romero and Llanes the said letter of the procurement
Office, although he well knew that Government Offices had preferential right over (needed) surplus articles: that on
March 3, 1949, Commissioner Romero formally made of record his "comment" on "nails" as follows:

The Auditor . . . certified that common nails are a critical item and must be bidded in accordance with the Presidential
directive, . . .. If the Control Committee, however, should waive the bidding requirement . . . and authorized the sale at
100 per cent of Procurement Costs, the undersigned will concur therein. . . ..;

that on March 7, 1949, the Acting Chairman, the accused herein, indorsed to the Government Enterprises Council, the
aforesaid intent" of Commissioner Romero at the same time  recommending that the requirement of public bidding for
common nails as critical items be waived provided the sale be  at 100 per cent of Procurement cost" and forwarded to
Government Enterprises Council his indorsement together with the invoices of Eastern Commercial Corporation by
Constantina Reyes, Lourdes Angeles David, Fortunata Estanislao Grata Ranara, Jacinto Baldeo and Clarito Baldeo and the
aforestated letter of the Procurement Office that invoices of Beatriz Poblete Jose del Rosario, Ruben Adriano and
Eugenia Adriano were kept by the accused and did not submit them to Commissioners Romero (and Llanes) for
consideration on February (22,23,) 1949, and craftily did not endorse them to the Government Enterprises Council
[together the Acting Chairman] the accused herein, knowing or at least having reason to believe, that [the original and]
the renovated invoices of [Beatriz Poblete and its sister invoices] were not properly acted upon by the Technical Review
Committee and were not recommended by the Sales Manager and knowing,, or at least having motives to suspect that
the original and /or the renovated invoices of Beatriz Poblete and Jose del Rosario were not signed by them personally,
[the acting Chairman readily signed and approved said invoices at twenty five per cent (25%) only of procurement cost]
notwithstanding his knowledge that there were other pending invoices at one hundred per cent (100%) of procurement
cost; that pursuant to his interest in having them approved by at least the majority, the said accused, as Acting
Chairman, exerted all efforts to convinced Commissioner Llanes to approve the said invoice of Beatriz Poblete and its
sister invoices, [but the Commissioner Llanes twice disapproved them on the ground that] the price offered was very
low, nails being critical item that should be bidded and the invoices were not recommended for approval by the Sales
Manager;] [that the Acting Chairman, the accused herein, submitted for the third time said invoices to Commissioner
Llanes and statutely prevailed upon him to approved the same on the pretext of "urgent need to speed up liquidation"
of surplus properties, and commissioner Llanes for that alleged reason and because of the strong recommendation of
the herein accused, finally consented to approve them provided that the accused secure first, the recommendation of
the Sales Manager; [that before and after the approval of said invoices by Commissioner Llanes, the accused withheld
said invoices from the consideration of and action of Commissioner Romero, in view of the latter's comments on the
subject which, the accused himself had previously favorable Government Enterprises Council;] that on or about March
21), 1949, [the herein accused] received from the Purchasing Agent of the Procurement Office a letter advising him that
they were definitely buying and wanted to take delivery of seventy-seven (77 ) tons of surplus nails from Depot No. 14
and enclosed with said letter the needed certification of the availability of funds for the purchase, but the herein
accused, fearing that said purchase would defeat his ultimate interested purpose. did not submit said letter to, the
Commissioner Romero and Llanes for their consideration and action: that on April 1, 1949, the Acting Chairman issued
on order. "for immediate and strict compliance", for the delivery of the 3,000 kegs of nails covered by the invoices of
Beatriz Poblete, which was not carried out due to the opposition of the Auditor's representative; that on April 2, 1949,
the accused had learned of the advise of Atty. Gregorio S. Licaros. Executive Secretary of the Government Enterprises
Council, that deliveries on invoices for nails be suspended that the anticipating that the formal decision by the
Government Enterprise Council was imminently forthcoming and would adversely affect the invoice of Beatriz Poblete,
as in fact said decision of the Government Enterprises Council was rendered and forwarded to the Commission on April
4, 1949, declaring that "Under no circumstances should sale of nails of any type, classification or quantity be made at
less than 100% of procurement cost, any such sale pending delivery to be cancelled, and that the quantity of nails
requisitioned by the  Procurement Office should be reserved, the [herein accused, as] Acting Chairman, in order to
consummate the sale in favor of Beatriz Poblete in which they (be) had become [greatly] interested, issued a second
order to different officer of (the Superintendent, Officer-in- Charge, and Security Officer of Depot No. 14 and to other
subordinate officers in] the Surplus Property Commission urging complete delivery of the nails covered by the invoice of
Beatriz Poblete,  regardless of tag numbers; that as a direct and necessary consequence of all the afore-stated
actuations, (machinations and omissions) of the herein accused, (all) committed, incurred, and/or carried out in the
Cities of Manila, Rizal and Quezon the said accused capacity as Acting Commissioner (Chairman) of the Surplus Property
Commission and as an accountable Public officer did there and or about March 24, then on April 4, and 5, 1949 wilfully,
unlawfully, feloniously and fraudulently, or at least, through abandonment, constraint and permit Beatriz Poblete,
through her representative Ngo Teck, to appropriate and carry away, as she did in fact appropriate and take three
thousand (3,000) kegs of nails form Engineer Depot No. 14 them with a market value of P81,000, for which public
property the said accused as such accountable, to the damage and prejudice of the Surplus Property Commission. an
agency of the Republic of the Philippines, in the total amount of twenty-five thousand two hundred pesos (25,200)
including compensating tax, representing 100 per cent of original procurement cost, minus six thousand three (P6,300)
which was paid to the Surplus Property Commission under the fraudulent guise of purchase price of the said three
thousand (P3,000) kegs of nails.

Contrary to Law.

Contrary to Law City of Manila, Philippines, this 15th day of October, 1949.

(Sgd.) PEDRO C. QUINTO

Special Attorney
Office of the Solicitor General
and Special Counsel
appointed by the Secretary of Justice
under section 1686 of the
Revised Administrative Code

—————

In this copy of the original information, the words or phrases inclosed by brackets refer to deletions, transpositions,
rephrasing made in the amended information.

PEDRO C. QUINTO
Special Attorney
Office of the Solicitor General
and Special Counsel appointed
by the Secretary of Justice

APPENDIX "B"
REPUBLIC OF THE PHILIPPINES
IN THE COURT OF FIRST INSTANCE MANILA
SIXTH JUDICIAL DISTRICT
BRANCH IX

—————

[Criminal Case No. 11232 for Malversation of Public Property]

THE PEOPLE OF THE PHILIPPINES,

Plaintiff,

VERSUS

JOSE C. ZULUETA, accused.

————

AMENDED INFORMATION
NOW COMES the undersigned Special Attorney, Division of Special Attorneys of the Office of the Solicitor General, and
appointed by the Secretary of Justice as Special Counsel under Articles 1686 of the Revised Administrative Code and,
with the leave of Court amends the information as to matter of form, by accusing Jose C. Zulueta, of a violation of Article
217 of the Revised Penal Code committed as follows:

That on or about the period from January 10, 1949, to April 6, 1949, and for something prior and subsequent thereto, in
the Cities of Manila and Rizal, Philippines, the herein accused Jose C. Zulueta, after having been duly appointed to the
Office of Acting Chairman performed the functions and duties pertaining to his aforementioned public office; that as
such Acting Chairman of the Surplus Property Commission the herein accused was entrusted and charged with the
proper 'administrative, care, custody, protection, disposition and /or sale" and "under such terms and conditions  as may
be deemed  most advantageous" to the Government of the Surplus properties acquired under the Agreement between
the United States of America and the Republic of the Philippines, as approved by the Congress of the Philippines under
Republic Act No. 33, which by virtue thereof have become public properties for which the said accused Jose C. Zulueta
was and is accountable by reason of his said position; that during the period from January 10, 1949 to April 6, 1949, and
for some time prior and subsequent thereto, in the City of Manila, Philippines, where the offices of the Surplus Property
Commission were located and in the City of Rizal where the said accused as Acting Chairman established subsidiary
office without the consent of the Commission and over and above the objection of the Auditor, the said accused, as
Acting Chairman of the Surplus Property Commission, did then and there wilfully, unlawfully, feloniously and fraudulent
consent or at least, through abandonment permit one Beatriz Poblete to take and misappropriate, as she did take and
misappropriate from Depot No. 14 of the Surplus Property Commission 3,000 kegs of surplus nails in the following
manner: that on January 10, 1949, Mrs. Constantina Reyes filed with the surplus Property Commission an offer to
purchase nails at Depot No. 14 at seventy per cent  (70%) of procurement cots and immediately control over the
processing of offers to purchase and invoices in the name of Beatriz Poblete, Jose del Rosario, Ruben Adriano and
Eugenia Adriano purportedly dated and filed "January 17, 1949", but in fact not officially filed on that day but sometime
between January 18 and January 28, 1949, for the purchase of nails in Depot No. 14 at  twenty-five  per cent (25%) of
procurement cost as follows:

Kegs (SALVAGED) at 25 per cent of

Procurement cost

Beatriz Poblete 3,000

Jose del Rosario 3,000

Ruben Adriano 1,500

Eugenia Adriano 4,020

That on January 18 1949, Depot No. 14 was frozen allegedly preparatory to public bidding, which was not but in fact was
to prevent the filing of other offers at a higher percentage; that on February 5, 1949, Depot No. 14 negotiated sale; that
on February 7. 1949, the following officers to purchase nails, SALVAGED at Depot  one hundred per cent  (100%) of
procurement costs, were duly filed.

Eastern Commercial Corporation by

Kegs (SALVAGED) at 100 per cent of

Procurement cost

Constantina Reyes 2,225

Lourdes Angeles David 1,500

Fortunata Estanislao 2,010

Grato Ranara     750

Jacinto Baldeo       12

Clarito Baldeo       12
that on or about February 16, 0r 18, the act of invoices of Eastern Commercial Corporation filed by Constantina Reyes,
Lourdes Angeles David, Fortunata Estanislao, Grate Ranara, Jacinto Baldeo and Clarito Baldeo, all at 100 per cent of
procurement cost, were unanimously recommended by then Technical Review Committee of five (5) members, and by
the Sales Manager, for approval of the Surplus Property Commission, while the set of invoices of Beatriz at 25 per cent
only of procurement cost, irregularly filed and processed, were conditionally recommended for personal use or
rehabilitation purposes only by two of the five members of the said Technical Review Committee; that on February 23,
1949, the set of invoices of Eastern Commercial Corporation by Constantina Reyes, and others, at least 100 per cent of
procurement cost was submitted to the Acting Chairman the accused, Jose C. Zulueta, and to Commissioners Romero
and Llanes; that Commissioners Romero and Llanes upheld in writing the opinion of the Auditor that "nails" were critical
materials and must be bidded in accordance with Presidential directive on the matter, and with the acquiescence of
invoices were returned to the Sales Manager, but, upon a petition for reconsideration filed by the parties concerned, the
same set of invoices were again submitted to the Commission on February 26, 1949, for further consideration; that on
March 2, 1949 the Surplus Property Commission received the letter-officer of the Procurement Office dated February 25,
1949, advising that said Office was ready to acquire all the "stock of 4-inch to 6-inch long nails available at the time
in Engineering Depot No. 14; that the Acting Chairman, the accused herein, in order to subverse his ulterior interested
purposes, did not indorse to Commissioners Romero and Llanes the said letter of the Procurement Office, although he
well knew that Government Offices had preferential right over PRIVATE PARTIES to acquire surplus articles; that on
March 3, 1949, Commissioner Romero formally made of record his "comment" on "nails" as follows:

The Auditor . . . certified that common nails are critical item and must be bidden in accordance with the Presidential
directive, . . . If the control Committee, however, should waive the bidding requirement ..and authorize will concur
therein . . .., ;

that on March 7, 1949, the accused herein, as Acting Chairman, indorsed to the Government Enterprises Council, the
aforesaid "comment" of Commissioner Romero at the same time  recommending that the requirement of public bidding
for common nails as critical items be waived provided the sale be at 100 per cent of procurement cost"  and forwarded to
the Government Enterprises Council his indorsement together with the invoices of Eastern Commercial Corporation by
Constantina Reyes, Lourdes Angeles David, Fortunata Estanislao, Grata Ranara, Jacinto Baldeo, and Clarito Baldeo, the
AFOREMENTIONED LETTER OF EASTERN COMMERCIAL CORPORATION ASKING FOR RECONSIDERATION, the aforestated
letter of the Procurement Office, AND OTHER PERTINENT PAPERS; that the invoices of Beatriz Poblete, Jose del Rosario,
Ruben Adriano and Eugenia Adriano AT 25 PER CENT PROCUREMENT COST were purposely retained by the herein
accused and did not submit them to, Commissioner Romero for consideration on February 23, 1949, and crafty did not
indorse them to the Government Enterprises Council; and the accused herein, knowingly, or at least having reason to
believe, that the said renovated invoices AT 25 PER CENT OF PROCUREMENT COST were not properly acted upon by the
Technical Review Committee, ONE OF WHOSE MEMBERS HAVING RECOMMENDED THEM FOR PERSONAL USE ONLY
AND NOT FOR RESALE, and were not recommended by the Sales Manager, knowing, or at least having motives to
suspect that the original and/or the renovated invoices of Beatriz Poblete and Jose del Rosario were not signed by them
personally, notwithstading his knowledge that there were other pending invoices at one hundred per cent(100%) of
procurement cost, AND IT WAS PENDING DECISION HIS INDORSEMENT AND RECOMMENDATION ABOVE-MENTIONED
and pursuant to his interest in having them approved the said accused as Acting Chairman, exerted all efforts to
convince Acting Commissioner Llanes to approve the said invoices of Beatriz Poblete and its sister invoices, TAKING
ADVANTAGE OF THE FACT THAT ADOLFO Q. LLANES, BROTHER OF ACTING COMMISSIONER LLANES, HAD A PENDING
OFFER TO PURCHASE ALSO 2,000 KEGS OF NAILS AT DEPOT NO. 14 AT A LOW RECOVERY PRICE OR PERCENTAGE OF
PROCUREMENT COST, AND IN ORDER TO ACCOMPLISH HIS PURPOSE, THE HEREIN ACCUSED BEFORE OR ABOUT
FEBRUARY 23, 1949 SUBMITTED, THRU HIS REPRESENTATIVE, THE RENOVATED INVOICES OF BEATRIZ POBLETE. JOSE DEL
ROSARIO, EUGENIA ADRIANO, AND RUBEN ADRIANO PRICE OF 25 PER CENT ONLY OF PROCUREMENT AND OTHER
PERTINENT PAPERS TO ACTING COMMISSIONER ANGEL LLANES FOR HIS CONSIDERATION, WHO RETURNED AND
DISAPPROVED THEM ON THE GROUND THAT NAILS WERE OF GREAT DEMAND AND SHOULD BE SOLD ON A BID BASIS,
THE INVOICES WERE IMPROPERLY ACCOMPLISHED, AND WERE NOT RECOMMENDED BY THE SALES MANAGER; THAT ON
MARCH 18, 1949, OR THEREABOUTS, THE HEREIN ACCUSED RESUBMITTED TO ACTING COMMISSIONER ANGEL LLANES
THE AFOREMENTIONED INVOICES OF BEATRIZ POBLETE, JOSE DEL ROSARIO, EUGENIA ADRIANO, AND RUBEN ADRIANO,
ALREADY SIGNED BY THE SAID ACTING CHAIRMAN, AND ACTING COMMISSIONER LLANES ON MARCH 19, 1949
DISAPPROVED THEM FOR THE SECOND TIME IN VIEW OF THE DIRECTIVE OF THE PRESIDENT OF THE PHILIPPINES DATED
FEBRUARY 17,1947 AND ON THE GROUND THAT NAILS WERE CRITICAL CONSTRUCTION ITEMS WHICH SHOULD BE SOLD
TO MANY PEOPLE AS POSSIBLE ON A BID BASIS: THAT ON OR ABOUT MARCH 22, 1949 THE SET OF INVOICES OF BEATRIZ
POBLETE JOSE DEL ROSARIO, EUGENIA ADRIANO AND RUBEN ADRIANO WERE SUBMITTED FOR THE THIRD TIME BY THE
ACTING CHAIRMAN JOSE C. ZULUETA TO THE SAID ACTING COMMISSIONER LLANES FOR HIS FURTHER CONSIDERATION;
THAT ON THE OCCASION THE HEREIN ACCUSED AS ACTING CHAIRMAN. AND ANGEL LLANES, AS ACTING
COMMISSIONER, BOTH OF THE SURPLUS PROPERTY COMMISSION, CONSPIRED AND MUTUALLY COOPERATED BY ACTS
WITHOUT WHICH THEY COULD NOT HAVE ACCOMPLISHED THEIR, ILLEGAL PURPOSE, AND TO THIS EFFECT, ACTING
COMMISSIONER ANGEL LLANES VOLUNTARILY CONSENTED TO APPROVE ALSO SAID INVOICES AT 25 PER CENT OF
PROCUREMENT Cost provided the herein accused secure first the recommendation of the Sales Manager, AS HE DID
SECURE THE SAME, AFTER WHICH ON OR ABOUT MARCH 24, 1949, ACTING COMMISSIONER R. ANGEL LLANES
ACTUALLY APPROVED ALSO SAID INVOICES WITH HIS INITIALS; THAT IN FURTHERANCE OF SAID CONSPIRACY, THE
ACTING CHAIRMAN, WHO, OR ABOUT MARCH 29,1949, received ANOTHER LETTER from the Procurement Office
advising that they were definitely buying 77 tons of surplus nails, ACCOMPANYING said letter with the NECESSARY
certification of the availability of funds for the purchase; but fearing that said purchase would defeat their ultimate
interested purpose, did not submit said letter to the COMMISSION for consideration and action; that on April 1, 1949 the
Acting Chairman issued an order,  "for immediate and strict compliance  for the delivery of 3,000 kegs of nails covered by
the invoice No. 10248 of Beatriz Poblete, which was not carried out ON ACCOUNT OF the opposition of the AUDITOR,
AND DUE TO SAID OPPOSITION THE ACTING CHAIRMAN AND THE AUDITOR AGREED THAT NO ACTION ON THE MATTER
OF NAILS AND ON THE INVOICE OF BEATRIZ POBLETE SHALL BE TAKEN PENDING DECISION OF THE GOVERNMENT
ENTERPRISES COUNCIL; that on April 2, 1949, the Acting Chairman Jose C. Zulueta had learned of the advice of Atty.
Gregorio Licaros, Executive Secretary of the Government Enterprises Council, that deliveries on invoices for nails be
suspended; that anticipating that the formal decision by the government enterprises council was immediately
forthcoming and would adversely affect the invoice of Beatriz Poblete AND ITS SISTER INVOICES, as in fact said decision
of the Government Enterprises Council was rendered and forwarded to the Commission on April 4, 1949, declaring
that "under no circumstances should sale of nails of any type classification or quantity be made at less than 100% of
procurement cost, and such sale pending delivery to be cancelled."  and that quantity of nails requisitioned by the
Procurement Office should be reserved, the Acting Chairman, CONTRARY TO SAID AGREEMENT AND THE ADVICE OF THE
EXECUTIVE SECRETARY of the Government Enterprises Council and in order to consummate the sale IN FAVOR of Beatriz
Poblete IN WHICH HE AND ACTING COMMISSIONER ANGEL LLANES had become interested, ISSUED A PEREMPTORY
order, to DIFFERENT officers of the Surplus Property Commission urging complete delivery of the nails covered by the
invoice of Beatriz Poblete,  regardless of tag numbers;  that as direct and necessary consequence of all the aforestated
joint actuations of the herein accused Acting Chairman of the Surplus Property Commission, and of Commissioner Angel
Llanes, subsequently accused also for malversation of public property in criminal case No. 11727 of this court,
committed, incurred, and/or carried out in the Cities of Manila, Rizal and Quezon, the said accused Jose C. Zulueta, in his
capacity as Acting Chairman of the Surplus Property Commission, and as an accountable officer and in conspiracy with
the aforesaid Acting Commissioner Angel Llanes did then and there on or about February 23, 1949, March 24, 1949,
April 4, and 5, 1949, wilfully, unlawfully, feloniously and fraudulently or at least, through abandonment or negligence,
consent and permit Beatriz Poblete through her representative Ngo Teck, to appropriate and carry away, as she did in
fact appropriate and take, three thousand (3,000) kegs of nails from Engineer Depot No. 14, then with a market value of
P81,000, for which public property the herein accused and Acting Commissioner Angel Llanes, who as a public officers,
were then and are still accountable, to the damage and prejudice of the Surplus Property Commission, an agency of the
Republic off the Philippines, in the total amount of twenty-five thousand two hundred pesos (P25,200), including
compensating tax, representing 100% of original procurement cost, minus six thousand three hundred pesos (P6,300)
which was paid to the Surplus Property Commission under the fraudulent guise of purchase price of the said three
thousand (3,000) kegs of nails.

Contrary to Law.

City of Manila, Philippines, this 14th day of January, 1950.

(Sgd.) PEDRO C. QUINTO

Special Attorney
Office of the Solicitor General
and Special Counsel
appointed by the Secretary of Justice

[G.R. No. L-26762. August 31, 1970.]

PHILIPPINE LONG DISTANCE TELEPHONE COMPANY, Petitioner, v. THE PUBLIC SERVICE
COMMISSION, Respondent.

[G.R. No. L-26765. August 31, 1970.]

MANILA ELECTRIC COMPANY, ET AL., petitioners v. PUBLIC SERVICE

COMMISSION, Respondent.

[G.R. No. L-26779. August 31, 1970.]

PHILIPPINE STEAM NAVIGATION COMPANY, Petitioner-Appellant, v. THE PUBLIC SERVICE

COMMISSION, Respondent-Appellee.

[G.R. No. L-26799. August 31, 1970.]

GENERAL SHIPPING COMPANY INC., Petitioner, v. PUBLIC SERVICE

COMMISSION, Respondent.

Graciano C . Regala & Associates for petitioner Philippine Long Distance Telephone
Company.

San Juan, Africa, Gonzales & San Agustin for petitioner Manila Electric Company, Et. Al.

Lichauco, Picazo, & Agcaoili for petitioner Philippine Steam Navigation Company.

Ang, Atienza & Tabora Law Offices for petitioner General Shipping Company, Inc.

Generoso O. Almario and Paulino S. Gueco for respondent Public Service Commission.

DECISION

REYES, J.B.L., J.:

Petitions filed separately by the Philippine Long Distance Telephone Company, the Manila Electric Company, Bolinao
Broadcasting Corporation, the Philippine Steam Navigation Company, and the General Shipping Company, all domestic
corporations operators of public utilities, for review of the decision of the Public Service Commission, in its Case No. 65-
196, construing Section 40 (e) of the Public Service Act, as amended by Republic Act 3792, adversely against them. The
facts of these cases are not in dispute.

On various dates in September, 1964, the Public Service Commission assessed several public utilities for supposed
supervision and regulation fees for that year, as follows: Philippine Long Distance Telephone Company — P214,353.60;
Manila Electric Company — P727,526.00; Bolinao Electronics Corporation — P11,610.40 Philippine Steam Navigation
Company — P23,921.60; and General Shipping Company — P33,146.80, based upon the value of their respective
properties or equipment. The assessments were allegedly made pursuant to Section 40(e) of the Public Service Act, as
amended by Republic Act 3792. After paying under protest the demanded amounts, the above mentioned corporations
sent separate letters to the Commission, except the Philippine Steam Navigation Company which filed a formal petition
instead, 1 requesting for reconsideration of the assessments on the ground that under Section 40 (e) of the Public
Service Act, as amended, such assessments should be based not on the value of the properties but upon the subscribed
and paid up capital stocks of the corporations.

On 28 September 1966, the Public Service Commission rendered judgment on the petition of the Philippine Steam
Navigation Company, denying the request for reconsideration of the assessment, for the reason that under the
amended provision of the Public Service law the amount of supervision fee payable by a public utility shall be based on
its capital stock if a stock corporation on the capital invested, if a non-stock corporation; or on the property and
equipment of such stock or non-stock entities, whichever is higher. As said decision was declared applicable to other
operators of public services that similarly sought reconsideration of the action of the Commission, and which were
considered intervenors in the case, the petitioner Philippine Steam Navigation, the Philippine Long Distance Telephone
Company, Manila Electric Company, Bolinao Electronics Corporation, and General Shipping Company individually came
to this Court, raising the same question of the proper assessment-base to be used in imposing the prescribed
supervision and regulation fees on public utilities.

Prior to its amendment, Section 40, paragraph (e), of the Public Service Act (Commonwealth Act 1466), applicable in
these proceedings, provides:jgc:chanrobles.com.ph

"SEC. 40. The Commission is authorized and ordered to charge and collect from any public service the following
fees:chanrob1es virtual 1aw library

x              x              x

"(e) For reimbursement of the expenses incurred by the Commission in the supervision of other public services: ten
centavos for each one hundred pesos or fraction thereof, of the capital stock subscribed or paid, or if no shares have
been issued, of the capital invested." (As amended by Commonwealth Act 454.)

With the enactment of Republic Act 3792 on 22 June 1963, the said Section now reads as follows:jgc:chanrobles.com.ph

"SEC. 40. The Commission is authorized and ordered to charge and collect from any public service or applicant, as the
case may be, the following fees as reimbursement of its expenses in the authorization, supervision and/or regulation of
public services:chanrob1es virtual 1aw library

x              x              x

"(e) For annual reimbursement of the expenses incurred by the Commission in the supervision of other public services
and/or in the regulation or fixing of their rates, twenty centavos for each one hundred pesos or fraction thereof, of the
capital stock subscribed or paid, or if no shares have been issued, of the capital invested, or of the property or
equipment, whichever is higher."cralaw virtua1aw library

In denying petitioner’s prayer for reconsideration and upholding the correctness of the assessed fees, the Commission
reasons out that the clause "or of the property and equipment, whichever is higher" inserted or added to Section 40(e)
of the Public Service Act as an alternative base for supervision fees collectible thereunder applies to both stock and non-
stock corporations. The ruling is premised on the argument that the cost of property and equipment being usually higher
than both the subscribed and paid up stocks in stock corporations and the capital investment in non-stock entities, to
declare its use as assessment base only in case of public utilities not issuing stocks, to the exclusion of stock corporate
public services, would make the law discriminatory, unfair and unjust. It was further reasoned out that the appearance
of a comma after the words "capital subscribed or paid" and another after the words "Capital invested," immediately
preceding the clause "property and equipment, whichever is higher," indicates the intention of the legislature to
constitute the latter as an alternative of both the subscribed and invested capital. In short, the stand of the Commission
is this: if the legislature designed "property and equipment" to apply only to non-stock corporations, the amended
provision should have been drafted —

". . . twenty centavos for each one hundred pesos or fraction thereof, of the capital stock subscribed or paid, or if no
shares have been issued, of the capital invested or of the property or equipment, whichever is higher."cralaw virtua1aw
library

instead of placing a comma between the words invested and or of the property, etc., as it now stands; or better still, a
semicolon would have been inserted after the words "capital stock subscribed or paid."cralaw virtua1aw library
Petitioners assail the reasoning of the Commission that to use the value of property and equipment as an alternative
base for fixing the rates only in case of public services not issuing shares would result in unreasonable discrimination
against the latter. They urge that the law itself draws a distinction between public utilities issuing shares and those that
fail to do so; and reason out that as the capital invested is difficult ,to ascertain where no shares have been issued, it was
logical that the Legislature should provide as an alternative rate base for this class of operators only the value of their
property or equipment. We do not find this argument adequately cogent, since it is based on a hypothesis not backed by
evidence. There is no showing in the record that the Commission has met with difficulty in ascertaining the actual capital
investment of public service operators that do not issue shares of capital stock. Section 17 of the Public Service Act
authorizes the Commission to require public services to submit annual reports of finances and operations, and we can
not assume a priori that the reports submitted by operators that do not issue shares of capital stock are or will be
untruthful.

It is also argued that reliance on punctuation is too risky a method of statutory construction, citing authorities
(Sutherland on Statutory Construction) that often the punctuation becomes that of the printer rather than of the
legislature. But in the particular case at bar, a comparison of the text of Section 40(e) appearing in the official text of
Republic Act No. 3792 with that of its original, House Bill No. 4613, shows that the punctuation of the provision in
question has undergone no alteration at all. At any rate, the consideranda on punctuation made in the Commission’s
appealed resolution was merely employed to reinforce its main argument that nothing in the law justifies a
discriminatory application of the value of the property or equipment (as alternative rate base) solely to operators not
issuing shares of capital stock.

On the alleged disproportion of the total amount to be collected as supervisory fees when contracted with the possible
amount expendable in supervising public service, the very statute indicates that such fees as are therein fixed were
designed to raise revenue for the general expenses of the Commission, and were not limited to reimbursement of actual
expenditures in supervision. For the last paragraph of Section 40 of the Public Service Act, as amended, explicitly
prescribes that "any unexpanded balance of the fees collected by the Commission under this section shall be constituted
receipts automatically appropriated each year and . . . shall be disbursed . . . for additional needed personal services,
maintenance and operating expenses, acquisition of urgently needed vehicles, furniture and equipment," reference
library and buildings.

"Aside from the appropriations for the Commission under the annual general appropriations Act, any unexpanded
balance of the fees collected by the Commission under this section shall be constituted receipts automatically
appropriated each year, and together with any surplus in the standardizing meter laboratory revolving fund under
Commonwealth Act Numbered Three Hundred Forty-Nine, shall be disbursed by the Public Service Commissioner in
accordance with special budgets to be approved by the Department of Justice, the Budget Commission and the Office of
the President of the Philippines for additional needed personal services, maintenance and operating expenses
acquisition of urgently needed vehicles, furniture and equipment, maintenance of an adequate reference library,
acquisition of a lot and building for the Commission, and other expenses necessary for efficient administration and
effective supervision and regulating of public services."cralaw virtua1aw library

While the jurisprudence of this Court has maintained the distinction between taxes and regulatory fees, legislative intent
is clear that these fees collectible by the Public Service Commission were imposed to raise revenue. It is well to note, in
this connection, that under the amendatory Act (Section 40, paragraph 1), the Public Service Commission is not merely
authorized but ordered to collect the fees prescribed therein:jgc:chanrobles.com.ph

"The Commission is authorized and ordered to charge and collect from any public service or applicant as the case may
be. the following fees . . ." (Emphasis supplied)

Petitioners aver that regarded as taxes, the fees prescribed in Section 40, as amended, are confiscatory and violative of
substantive due process; they have not submitted, however, evidentiary data to substantiate this point. That the
amounts to be collected are large do not, per se alone, suffice to establish their confiscatory character.

Upon the other hand, we are in accord with petitioner operators that the Commission was in error in collecting the fees
in question on the basis of the original cost of their property and equipment without due allowance for depreciation.
Once said properties and equipment are in use, depreciation sets in, and renders the original cost a theoretical figure
that does not correspond to reality; and as a matter of fact, the computation of the reasonable profits that operators are
allowed to make, and the fixing of the rates that they can charge to the public, are based on actual value of their
properties and equipment in use, not the original cost thereof. In the absence of clear specification in the statute that
the fees imposed by Republic Act No. 3792 are to be determined on the basis of original costs of acquisition, justice and
equity demand that the fees be calculated on the present values 2 of the operator’s property and equipment at the time
the fees become payable. It is not to be overlooked that the fees in question are payable yearly, for an indefinite period;
and it would be unreasonable to assume that the Legislature intended the fees to be based, year after year, on a cost
that would become more and more distant from reality as the years pass by. At least, such intendment is not to be
assumed in the absence of clear expression to the effect in the law.

The Solicitor General avers that depreciation allowance would complicate the computation of the fees due from the
operators. We fail to see why it should do so, when under the Public Services Act (Commonwealth Act No. 136, as
amended) it is the Commission that sets and determines the "proper and adequate rates of depreciation of the property
of any public service" and "each public service shall conform its depreciation accounts to the rates so determined and
fixed" (section 16). In any event, the necessity of increased effort in the computation of a fee or tax is not acceptable
excuse for setting the rates thereof in disregard of justice to the parties, which in every case is the overriding
consideration.

Modified in the sense that the supervision fees payable under Republic Act No. 3792 should be computed upon present
values of property and equipment in use, as above stated, the appealed resolution of the Public Service Commission is
affirmed. No costs.

Concepcion, C.J., Dizon, Makalintal, Zaldivar, Castro, Fernando, Teehankee and Villamor, JJ., concur.

Barredo and Makasiar, JJ., did not take part.

[G.R. No. L-31376. July 28, 1972.]

IN THE MATTER OF PETITION OF TAN KIAN SY TO BE ADMITTED A CITIZEN OF THE

PHILIPPINES. TAN KIAN SY, Petitioner-Appellee, v. REPUBLIC OF THE
PHILIPPINES, Oppositor-Appellant.

Felix V. Barbers for Petitioner-Appellee.

Solicitor General Felix Q. Antonio, Acting Assistant Solicitor General Ricardo L. Pronove, Jr.
and Solicitor Tomas M. Dilig for Oppositor-Appellant.

SYLLABUS

1. POLITICAL LAW; NATURALIZATION; EXEMPTION FROM FILING OF DECLARATION OF INTENTION;

REQUIREMENTS NOT PROVED IN CASE AT BAR. — Petitioner, who was born in the Philippines and
who finished his 5th grade and 1st year high school in Surigao Chinese School, which has not been
sufficiently proved to be a school not limited to any race or nationality, since practically all students
therein were chinese, is not entitled to exemption from filing a declaration of intention to become a
citizen of the Philippines. Aside from proof of birth, petitioner-appellee should also have proved that
he received his primary and secondary education in public schools or those recognized by the
government not limited to any race or nationality.

2. ID.; ID.; ID.; EXEMPTION MUST BE ALLEGED IN PETITION. — Granting that petitioner was able to
prove the requirements for exemption from filing a declaration of intention, the petition is still fatally
defective for failure to allege said exemption. Exemption from filing the declaration of intention is an
"essential particular" and." . . failure . . . of the petitioner to make a statement in his petition about
his having filed, or his being exempt from filing, a declaration of intention constituted a fatal defect in
his petition and rendered the same void, for non-compliance with the provision of law relative to the
contents of and annexes to, the petition for naturalization." cralaw virtua1aw library

3. ID.; ID.; PETITION, FAILURE TO STATE THEREIN ALL NAMES BY WHICH PETITIONER IS KNOWN,
FATAL. — Where it is established that the name "Tan Tianchi", not Tan Kian Sy, appears as the name
of petitioner-appellee in his "Secondary Pupil’s Permanent Record", and that he was known for some
length of time by this other name, especially among his teachers and classmates, a full disclosure of
this fact should have been made by petitioner-appellee by making an allegation in his petition to that
effect. The non-disclosure of this other name could easily have misled the people who knew him by
that name, and prevented those who may have legitimate complaints to report to the authorities
their objections to the admission of petitioner-appellee as a Filipino citizen. This Court in a long line
of decisions has ruled that failure on the part of the petitioner to state in his petition for
naturalization all the names by which he is known constitutes a fatal defect of the petition and is
sufficient ground to deny the petition.

4. ID.; ID.; ID.; FAILURE TO INCLUDE THEREIN ALL PLACES OF RESIDENCE OF PETITIONER, FATAL.
— Where it is established that petitioner-appellee finished his 5th grade and 1st year high school in
Surigao Chinese School, Surigao, Surigao del Norte, his 2nd and 3rd year high school in Northeastern
Mindanao Colleges, also in Surigao, same province, and his Bachelor of Science in Commerce at the
University of San Carlos in Cebu City, but the subject petition merely states that petitioner-appellee’s
"present place of residence is Loreto . . .", mentioning no other places of residence in the past, such
petition violates ‘’the mandatory provision of section 7 of the Naturalization Law" requiring the
petition to set forth the applicant’s "present and former places of residence", and "is a fatal detect
that, not only warrants dismissal of the petition but, also affects the jurisdiction of the court to hear
and decide the case." cralaw virtua1aw library

5. ID.; ID.; QUALIFICATIONS; REQUIREMENT OF LUCRATIVE INCOME NOT SATISFIED IN INSTANT

CASE. — Petitioner-appellee’s earnings of P250.00 a month at the time of the filing of the petition on
6 September 1965, is not a lucrative income that will satisfy the requirements of the Naturalization
Law. If this Court in Tan v. Republic did not consider P300.00 as lucrative income in 1962 (the
financial capacity for naturalization purposes being determined as of the date the petition is filed),
with more reason should it not hold so the income for petitioner-appellee for 1965 when the cost of
living had increased, and petitioner’s monthly income is even less.

6. ID.: ID.; PETITION; FAILURE TO ALLEGE GOOD MORAL CHARACTER OF PETITIONER. — The
petition, having failed to allege the good moral character of the petitioner, should be dismissed,
following the decision of this Court in Cho Kuan v. Republic, L-21198, 22 January 1966; 16 SCRA 25.

DECISION

REYES, J.B.L., J.:

Appeal by the Government from a decision of the Court of First Instance of Surigao del Norte, 15th
Judicial District, in its Naturalization Case No. 43, declaring petitioner-appellee Tan Kian Sy entitled
to be admitted as a citizen of the Philippines.

Petitioner-appellee is single, and like his parents, is a citizen of Nationalist China. He was born on 28
April 1943 in Loreto, Surigao del Norte. Be is registered as an alien in the Bureau of Immigration and
he never left the country since birth. Except for the 5th grade which petitioner-appellee took in
Surigao Chinese School, Surigao del Norte, he completed his primary education in Loreto Central
Elementary School, Loreto, Surigao del Norte. For his secondary education, he attended the following
schools: 1st year, Surigao Chinese School, 2nd and 3rd year, Northeastern Mindanao Colleges, also
in Surigao, Surigao del Norte, and 4th year, Loreto Academy, Loreto. Petitioner-appellee received his
college degree (Bachelor of Science in Commerce, major in accounting) at the University of San
Carlos, Cebu City.

Petitioner-appellee is the sales manager of his father’s store in Loreto, and was earning P250.00 a
month at the filing of the petition on 6 September 1965.

The application for naturalization is supported by the affidavit of the mayor and vice-mayor of Loreto
which states, among other things, that the herein applicant "has all the qualifications necessary to
become a citizen of the Philippines and is not in any way disqualified under the provisions of
Commonwealth Act 473." 1

The Provincial Fiscal, representing the Solicitor General, opposed the above petition. However, after
reception of evidence, both oral and documentary, the court a quo decided in favor of petitioner-
appellee’s admission as Filipino citizen. The state appealed the decision, assigning 6 errors, as
follows: The lower court erred in —

1. Not finding that the petition is fatally defective for failure of the petitioner-appellee to allege his
having filed or his being exempt from filing a declaration of intention;
2. Not denying the petition for failure of petitioner-appellee to state therein that he was also known
by some other name;

3. Holding that the places where petitioner-appellee resided during his school days need not be
alleged in the petition;

4. Holding that petitioner-appellee has a lucrative income;

5. Not denying the petition for failure of petitioner-appellee to state therein that he is a person of
good moral character;

6. Holding that petitioner is a person of good moral character; and

7. Granting the petition for naturalization.

The herein appeal was submitted to this Court for decision on the basis of petitioner-appellee’s
Memorandum of 28 December 1967, and without his brief, his counsel having manifested that
petitioner-appellee had "no further . . . desire or intention to fight this case on appeal." 2

Regarding the first assigned error, it is not disputed that petitioner-appellee did not file any
declaration of intention. Neither is there an allegation in the petition that he filed any. The
explanation given is that petitioner-appellee is exempt from filing the same.

We find no clear evidence that petitioner-appellee is entitled to the exemption. It is true that he was
born in the Philippines, which fact is alleged in the petition. However, birth alone does not suffice to
comply with the mandatory requirements for exemption. Aside from proof of birth, petitioner-
appellee should also have proved that he received his primary and secondary education in public
schools or those recognized by the Government, and not limited to any race or nationality. 3 While
Surigao Chinese School where petitioner-appellee finished his 5th grade and 1st year high school
may have been recognized by the Government, there is no sufficient proof that said school is not
limited to any race or nationality. In fact, when asked on cross-examination if practically all of the
students therein were Chinese, petitioner-appellee answered in the affirmative.

In the case of Lim Cho Kuan v. Republic, 4 this Court already ruled that —

"The records . . . bear no evidence showing that the Philippine Chinese High School where Lim Cho
Kuan finished his elementary education is not limited to any race or nationality. Such point must be
proved by applicant and cannot be presumed from the fact that the school is recognized by the
Government. The deficiency is fatal to his claim." 5

But granting, nevertheless, that petitioner-appellee was able to prove the aforesaid requirements for
exemption, the petition is still fatally defective for failure to allege said exemption. Exemption from
filing the declaration of intention is an "essential particular" 6 and." . . failure . . . of the petitioner in
this case to make a statement in his petition about his having filed, or his being exempt from filing, a
declaration of intention constituted a fatal defect in his petition and rendered the same void, for non-
compliance with the provision of law relative to the contents of, and annexes to, the petition for
naturalization." 7

This ruling was reiterated in the more recent case of Tan v. Republic 8 when this Court said —

"As in the Ong Khan case, supra, the petitioner here did not make any allegation in his original
petition that he had complied with section 5 of the Revised Naturalization Law. No declaration of
intention was attached to the Petition. But there was no claim for exemption from filing such
declaration, and neither was there allegation of facts that would entitle petitioner to exemption.

It has been repeatedly held that in cases where the petitioner for naturalization is exempt from filing
a declaration of intention, a statement as to his exemption therefrom and the reasons therefor
should appear in the petition in order to apprise the public, especially these officers charged with
notice of the application, of the reasons advanced in support of the claim for exemption, so that they
may be prepared, if legally proper and necessary to contest or object to any evidence adduced in
that regard. The failure, therefore, of the petitioner to make a statement in his original petition about
his having filed, or his being exempt from that requirement, constitutes a fatal defect in his petition
and rendered the same void for non-compliance with the law." 9

With respect to the second error assigned, it is established that the name "Tan Tianchi", not Tan Kian
Sy, appears as the name of petitioner-appellee in his "Secondary Pupil’s Permanent Record." 10
Although this was sought to be explained as a mistake "first made by his teacher" when petitioner-
appellee enrolled in the Public Elementary School in Loreto, 11 it can not be denied that petitioner-
appellee was likewise known for some length of time by this other name, especially among his
teachers and classmates, the correction of the name having been sought only after enrollment in
college at the University of San Carlos. 12 The non-disclosure of this other name could easily have
misled the people who knew him by that name, thus preventing those who may have legitimate
complaints to report to the authorities regarding the admission of petitioner-appellee as a Filipino
citizen.

This Court in a long line of decision has ruled that failure on the part of the petitioner to state in his
petition for naturalization all the names by which he is known constitutes a fatal defect of the petition
and is sufficient ground to deny the petition. 13 It has likewise been held in the case of Saw Cen v.
Republic, 14 further cited in the Lim Uy case, supra, that —

"The non-inclusion of the other name of petitioner in the publication of the petition has resulted fatal,
for it has deprived any person knowing him by that name, to come forward and inform the
authorities of any matter which might affect his application for naturalization. In other words, the
publication was incomplete and insufficient thereby affecting the jurisdiction of the court to take
cognizance of this petition . . ." 15

Having been also known as Tan Tianchi, petitioner-appellee should have made full disclosure of said
fact, by making an allegation in his petition to that effect.

It is contended in the third assignment of error that the petition is also defective in view of the fact
that the places where petitioner-appellee resided when he was a student were not alleged in the
petition.

It is established that petitioner-appellee finished his 5th grade and 1st year high school in Surigao
Chinese School, Surigao, Surigao del Norte, his 2nd and 3rd year high school in Northeastern
Mindanao Colleges, also in Surigao, same province, and his Bachelor of Science in Commerce at the
University of San Carlos in Cebu City.

Section 7 of the Revised Naturalization Law requires the petition to set forth the applicant’s "present
and former places of residence." The subject petition merely states that petitioner-appellee’s" present
place of residence is Loreto . . .", but mentions no other places of residence in the past.

In resolving a similar issue, this Court held in Uy v. Republic, 16 reiterated in Qua v. Republic, 17 as
follows:jgc:chanrobles.com.ph

"Petitioner argues . . . that his residence in Manila was only temporary so that his legal residence or
domicile remained to be Legaspi City. Section 7 of the Revised Naturalization Law speaks of present
and former places of residence. Its purpose, as stated, is to give the public and the investigating
agencies of the government an opportunity to gather information and to express objection relative to
the petition. Precisely for this reason it is important that petitioner’s actual, physical residence be
likewise set forth and published, since information regarding petitioner and objection to his
application are apt to be provided by people in his actual, physical surrounding.

Section 7 . . . requires disclosure of ‘present and former places of residence ‘as a precaution against
suppression of information regarding any possible misbehaviour on the part of applicant in any
community where he may have lived at one time or another. To ignore this purpose would be to
disregard obvious legislative intent as well as to forego the high degree of prudence and care
required by Us in naturalization proceedings." 18

The fact that the residence in Surigao and Cebu was merely temporary and that petitioner-appellee
intended to permanently reside in Loreto will not justify or cure the non-allegation of such other
places of actual physical residence, pursuant to Section 7 of the Naturalization Law. In Qua v.
Republic, ante, this Court ruled —

"Appellee mentions Republic v. Tan, L-12409, April 1, 1959, wherein this Court held that residence
means legal residence. However, it was to Section 8 of the law on where to file the petition, that said
decision referred. Considering the different purpose intended for Section 7, the residence mentioned
therein does not exclude actual residence even though temporary. Neither can applicant contend that
the omission in his petition was cured during the trial. In Lo v. Republic, supra, * We held that non-
compliance with Section 7 cannot be cured by the evidence." 19

The purpose of the law in requiring setting forth in the petition also of "former places of residence" is
further amplified in Keng Giok v. Republic, 20 reiterated in Go Bon The v. Republic, 21 wherein this
Court stated that —
". . . The reason for such a requirement is, as pointed out by the Solicitor General, to facilitate
checking up on the different activities of the petitioner bearing on his petition for naturalization
(especially as to his qualifications and moral character) whether by private individuals or government
agencies, by indicating to them the localities or places in which to make appropriate inquiries or
investigations thereon. Needless to say, by such omission, appellant, in effect, falsified the truth,
indicating lack of good moral character on his part, which disqualified him from admission to
Philippine citizenship (Sec. 2, Rev. Nat. Law) . . ."cralaw virtua1aw library

Thus, failure of petitioner to allege in his petition all his former places of residence "in violation of the
mandatory provision of Section 7 of the Naturalization Law is a fatal defect that, not only warrants
dismissal of the petition but, also, affects the jurisdiction of the court to hear and decide the case."
22

It is argued in the next assigned error that the petition should have been denied because petitioner
was unable to prove lucrative income.

In Lim v. Republic 23 it was held by this Court that ‘lucrative’ implies gainful employment or tangible
receipts. This concept was expanded in Tan v. Republic 24 where it was held that —

"Lucrative employment means a gainful employment. It is not only that the person having the
employment gets enough for his ordinary necessities in life. It must be shown that the employment
gives one an income such that there is an appreciable margin of his income over his expenses as to
be able to provide for an adequate support in the event of unemployment, sickness, or disability to
work and thus avoid one’s becoming the object of charity or a public charge." cralaw virtua1aw library

In Tan v. Republic25 , the petitioner was also single and earned P300.00 a month, plus an annual
bonus at the time the petition was filed on 3 January 1962. This Court concluded that "petitioner has
not substantially established possession of lucrative income, as required by law." cralaw virtua1aw library

It follows that if this Court did not consider P300.00 as lucrative income in 1962 (the financial
capacity for naturalization purposes being determined as of the date the petition is filed), 26 with
more reason should it not hold so in 1965 for petitioner-appellee, when the cost of living had
increased, and petitioner’s monthly income is even less. The error assigned is therefore sustained.

It is also the contention of the appellee that since the applicant failed to allege good moral character
in his petition, the dismissal thereof is warranted.

A close examination of the petition bears out appellee’s said contention. In the case of Lim Cho Kuan
v. Republic 27 wherein one of the issues raised was the effect of failure to allege the applicant’s good
moral character, this Court resolved said issue by stating that —

"The above-quoted provision 28 contains two parts: (1) that the applicant must be of good moral
character and believe in the principles underlying the Philippine Constitution; and (2) he must have
conducted ,himself in a proper and irreproachable manner during the entire period of his residence in
the Philippines in his relation with the constituted government as well as with the community in
which he is living. The first part speaks of the personal quality and belief of the applicant; whereas,
the second part speaks of his public and social conduct. Stated otherwise, a person’s conduct in
relation to the constituted government and the community at large may be irreproachable but his
private life or dealings with a particular individual may be such as to render his moral character
objectionable. For this reason, the law mentions the aforesaid requisites separately and even puts a
comma between them. It follows that good moral character and proper and irreproachable conduct
should be alleged and proved separately. Otherwise, the Legislature would have omitted the phrase
‘he must be of good moral character . . ., if the same is necessarily included in the phrase ‘must have
conducted himself in a proper and irreproachable manner during his entire period of his residence in
the Philippines in his relations with the constituted government as well as with the community in
which he is living.’" 29

Having failed to allege good moral character in his petition, the court a quo should have dismissed
the same.

FOR THE FOREGOING REASONS, the decision appealed from admitting Tan Kian Sy to Philippine
citizen, ship is reversed, and the petition is ordered dismissed. No special pronouncement as to costs.

Concepcion, C.J., Makalintal, Zaldivar, Castro, Fernando, Barredo and Makasiar, JJ., concur.

 [G.R. No. L-21198. January 22, 1966.]

IN THE MATTER OF THE PETITION OF LIM CHO KUAN KNOWN ALSO MARIANO LIM, TO BE
ADMITTED A CITIZEN OF THE PHILIPPINES. LIM CHO KUAN alias MARIANO, Petitioner-
Appellee, v. REPUBLIC OF THE PHILIPPINES, Oppositor-Appellant.

Solicitor General for the oppositor and Appellant.

J. A. Uy for the petitioner and appellee.

SYLLABUS

1. NATURALIZATION; EXEMPTION FROM FILING OF DECLARATION OF INTENTION TO BECOME A

FILIPINO CITIZEN; REQUISITES. — For an applicant born in the Philippines to be exempt from filing a
declaration of intention, he should have received his primary and secondary education in public
schools or those recognized by the Government and not limited to any race or nationality (Sec. 6,
Revised Naturalization Law). That the school where applicant finished his elementary education is not
limited to any race or nationality must be proved by him and cannot be presumed from the fact that
the school is recognized by the Government. The deficiency is fatal to his claim for exemption.

2. ID.; FILING OF DECLARATION OF INTENTION MANDATORY. — The filing of a declaration of

intention is mandatory and can only be dispensed with if the applicant is exempt therefrom. (Tan v.
Republic 89 Phil. 624). This requirement not haying been complied with, the petition for
naturalization has to be denied.

3. ID.; GOOD MORAL CHARACTER AND PROPER AND IRREPROACHABLE CONDUCT MUST BE PROVED
SEPARATELY. — Section 2 of the Revised Naturalization Law requires (1) that the applicant must be
of good moral character and believe in the principles underlying the Philippine Constitution; and (2)
he must have conducted himself in a proper and irreproachable manner during the entire period of
his residence in the Philippines in his relations with the constituted government as well as with the
community in which he is living. The first part speaks of the personal quality and belief of the
applicant; whereas, the second part speaks of his public and social conduct. Stated otherwise, a
person’s conduct in relation to the constituted government and the community at large may be
irreproachable but his private life or dealings with a particular individual may be such as to render his
moral character objectionable. For this reason, the law mentions the aforesaid requisites separately.
It follows that good moral character and proper and irreproachable conduct should be alleged and
proved separately.

DECISION

BENGZON, J. P., J.:

Not satisfied with the judgment of the Court of First Instance of Manila, rendered February 8, 1962,
granting the petition for naturalization filed by Lim Cho Kuan alias Mariano Lim, the Solicitor General
has appealed.

Lim Cho Kuan was born in the Philippines on December 23, 1936 of Chinese parents. He completed
his elementary education in 1953 at the Philippine Chinese High School and secondary education in
1957 at the Lyceum of the Philippines.

On November 7, 1960 he filed a petition for naturalization claiming therein exemption from the filing
of a declaration of intention on the ground that he was born in the Philippines and completed his
elementary and secondary education in schools "duly recognized by the Republic of the Philippines."
The petition did not alleged that applicant is "of good moral character."

In the hearing of the petition for naturalization no evidence was presented to prove that the
Philippine Chinese High School is not limited to any race or nationality.

The Solicitor General, therefore, raises the following issues: chanrob1es virtual 1aw library

(1) Is Lim Cho Kuan exempted from filing a declaration of intention?

(2) Is failure to allege in the petition for naturalization that applicant is of good moral character fatal?

Applicant did not file the declaration of intention required in Section 5 of the Revised Naturalization
Law on the ground, as stated, that he is exempt from filing the same. For an applicant born in the
Philippines to be exempt from filing a declaration of intention, he should have received his primary
and secondary education in public schools or those recognized by the Government and not limited to
any race or nationality (Sec. 6, Revised Naturalization Law).

The records of this case bear no evidence showing that the Philippine Chinese High School where Lim
Cho Kuan finished his elementary education is not limited to any race or nationality. Such point must
be proved by applicant and cannot be presumed from the fact that the school is recognized by the
Government. The deficiency is fatal to his claim for exemption.

The filing of a declaration of intention is mandatory and can only be dispensed with if the applicant is
exempt therefrom. 1 This requirement not having been complied with, the petition for naturalization
has to be denied.

Appellant further contends that the petition for naturalization should not have been granted on the
ground that it did not allege that Lim Cho Kuan is a person of good moral character. On the other
hand, applicant argues that the same is necessarily included in the following allegation in paragraph
12 of his Petition. "I have conducted myself in a proper and irreproachable manner during the entire
period of my residence in the Philippines in my relations with the constituted authorities as well as
with the community in which I am living." cralaw virtua1aw library

Section 2 of the Revised Naturalization Law provides: jgc:chanrobles.com.ph

"SEC. 2. Qualifications. — Subject to section four of this Act, any person having the following
qualifications may become a citizen of the Philippines by naturalization: chanrob1es virtual 1aw library

x          x           x

"Third. He must be of good moral character and believe in the principles underlying the Philippine
Constitution, and must have conducted himself in a proper and irreproachable manner during the
entire period of his residence in the Philippines in his relation with the constituted government as well
as with the community in which he is living." cralaw virtua1aw library

The above-quoted provision contains two part: (1) That the applicant must be of good moral
character and believe in the principles underlying the Philippine Constitution; and (2) he must have
conducted himself in a proper and irreproachable manner during the entire period of his residence in
the Philippines in his relations with the constituted government as well as with the community in
which he is living. The first part speaks of the personal quality and belief of the applicant; whereas,
the second part speaks of his public and social conduct. Stated otherwise, a person’s conduct in
relation to the constituted government and the community at large may be irreproachable but his
private life or dealings with a particular individual may be such as to render his moral character
objectionable. For this reason, the Law mentions the aforesaid requisites separately and even puts a
comma between them. It follows that good moral character and proper and irreproachable conduct
should be alleged and proved separately. Otherwise, the Legislature would have omitted the phrases
"he must be of good moral character . . ." if the same is necessarily included in the phrase "must
have conducted himself in a proper and irreproachable manner during the entire period of his
residence in the Philippines in his relation with the constituted government as well as the community
in which he is living."cralaw virtua1aw library

Provisions of the Revised Naturalization Law are strictly construed and non-compliance therewith, as
in this case calls for denial of the application for naturalization. 2

Wherefore, the decision appealed from is hereby reversed. Petition for naturalization denied, with
costs against petitioner. So ordered.

Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Regala and Zaldivar, JJ., concur.

Dizon and Makalintal, JJ., took no part.

G.R. No. L-21734 September 5, 1975

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ABELARDO SUBlDO, defendant-appellant.

Office of the Solicitor General Edilberto Barot and Solicitor Ceferino Padua for plaintiff-appellee. Estanislao A. Fernandez
for defendant-appellant.

MARTIN, J.:

Appeal on questions of law from the Orders of the Court of First Instance of Manila in Criminal Case No. 23041, entitled
People of the Philippines versus Abelardo Subido, denying defendant-appellant's motion for the cancellation of his
appeal bond and declaring him to suffer subsidiary imprisonment in case of failure to pay the fine and indemnity.

From an adverse decision in said case, the dispositive portion of which reads:

From the facts above stated the Court finds the accused guilty of libel and he is hereby sentenced to three (3) months
of arresto mayor with the accessory penalties of the law, to pay a fine of five hundred (P500.00) pesos, to indemnify the
offended party, Mayor Arsenio Lacson in the sum of ten thousand (P10,000.00) pesos, with subsidiary imprisonment in
case of insolvency, and to pay the costs.

defendant-appellant Abelardo Subido has taken an appeal to the Court of Appeals, which modified the said judgment in
the following tenor:

However, in the application of the penalty provided for the violation of the libel law, the courts are given discretion of
whether or not both fine and imprisonment are to be imposed upon the offender. In the instant case, we believe,
considering the attendant circumstances of the case that the imposition of the corresponding penalty should be
tempered with judicial discretion. For this reason, we impose upon accused-appellant a fine of P500.00.

Similarly, the amount of the indemnity to be paid by appellant to the offended party is reduced to P5,000.00.

WHEREFORE, with the modifications above indicated, the appealed judgment is hereby affirmed at appellant's costs.

In due time the case was remanded to the trial court for execution of the judgment.

On September 27, 1958, the accused-appellant filed a motion with the trial court praying that (1) the court enter of
record that the judgment of the Court of Appeals has been promulgated and (2) that his appeal bond be cancelled.
Accused-appellant argued that although he could not pay the fine and the indemnity prescribed in the judgment of the
Court of Appeals, he could not be required to serve the amount of fine and indemnity in the form of subsidiary
imprisonment because said judgment did not expressly and specifically provide that he should serve the fine and
indemnity in form of subsidiary imprisonment in case of insolvency.

On December 20, 1958, upon motion of the offended party the lower court issued a writ of execution of its judgment.
However, the writ was returned unsatisfied.

On February 25, 1959, the Sheriff of the City of Manila, armed with an alias writ of execution, attached "whatever rights,
interests, or participation, if any, defendant Abelardo Subido may have" in a two-storey building situated at No. 2313
Suter, Sta. Ana, Manila, covered by Transfer Certificate of Title No. 54170 of the Register of Deeds of Manila. However, it
turned out that the property levied upon be the sheriff was registered in the name of Agapito Subido who, upon learning
of the levy, immediately filed a Third party claim with the sheriff's office and instituted an action in the lower court (Civil
Case No. 41731) to enjoin the Sheriff of Manila from proceeding with the sale of his property. In the meantime the lower
court issued a writ of preliminary injunction enjoining the sale of property levied upon by the sheriff.

On December 10, 1959, the offended party registered its opposition to accused-appellant's motion for cancellation of
appeal bond and asked the lower court to require accused-appellant to pay the fine of P500.00 and the indemnity of
P5,000.00 with subsidiary imprisonment in case of insolvency.

On December 19, 1959, the lower court issued an order denying the accused-appellant's motion and declared that in
accordance with the terms of the judgment of the Court of Appeals the accused-appellant has to suffer subsidiary
imprisonment in case he could not pay the fine and indemnity prescribed in the decision. Accused-appellant moved for
reconsideration, but the same was denied on December 26, 1959.

Hence this appeal from the lower court's orders of December 19 and 26.

In his appeal, accused-appellant presses that the lower court erred

IN HOLDING THAT UNDER THE TERMS OF THE DECISION OF THE COURT OF APPEALS ACCUSED-APPELLANT IS LIABLE TO
SUBSIDIARY IMPRISONMENT IN CASE OF INSOLVENCY.

II

IN NOT HOLDING THAT THE CIVIL LIABILITY OF ACCUSED-APPELLANT HAS BEEN SATISFIED WITH THE ATTACHMENT
SECURED BY THE OFFENDED PARTY.1

The threshold issue in this appeal is whether or not the accused-appellant can be required to serve the fine and
indemnity prescribed in the judgment of the Court of Appeals in form of subsidiary imprisonment in case of insolvency.
Under Article 355 of the Revised Penal Code "a libel committed by means of writing, printing, litography, engraving,
radio, phonograph, paintings, theatrical exhibition, cinematographic exhibition or any similar means, shall be punished
by  prision correccional in its minimum and medium period or a fine ranging from 200 to 6000 pesos or both, in addition
to the civil action which may be brought by the offended party". It is evident from the foregoing provision that the court
is given the discretion to impose the penalty of imprisonment or fine or both for the crime of libel. It will be noted that
the lower court chose to impose upon the accused: three months of arresto mayor; a fine of P500.00; indemnification of
the offended party in the sum of P10,000.00; subsidiary imprisonment in case of insolvency; and the payment of the
costs. On the other hand, the Court of Appeals in the exercise of its discretion decided to eliminate the penalty of three
(3) months arresto mayor and to reduce the indemnity of P10,000.00 to P5,000.00.

Thus the Court of Appeals resolved:

However, in the application of the penalty provided for in the violation of the libel law, the courts are given discretion of
whether or not both fine and imprisonment are to be imposed upon the offender. In the instant case, we believe,
considering the attendant circumstances of the same, that the imposition of the corresponding penalty should be
tempered with judicial discretion. For this reason we impose the accused a fine of P500.00.

Similarly, the amount of the indemnity to be paid by appellant to the offended party is reduced to P5,000.00.

WHEREUPON, with the modifications above indicated, the appealed judgment is hereby affirmed at appellant's cost.

To Us it is clear that when the Court of Appeals provided in the concluding portion of its decision:

WHEREUPON, with the modifications above indicated, the appealed judgment is hereby affirmed at appellant's costs

the alluded modifications could mean no less than the elimination of the three months of arresto mayor and the
reduction of the indemnity to the offended party, Mayor Arsenio Lacson, from P10,000.00 to P5,000.00. All the rest of
the punishment remains including the subsidiary imprisonment in case of insolvency. Had the Court wanted to do away
with the subsidiary imprisonment in case of insolvency of accused-appellant to pay the fine and the indemnity it would
have so expressly provided.

A careful scrutiny of the decision of the trial court reveals that the clause "with subsidiary imprisonment in case of
insolvency" is separated by a comma (,) from the preceding clause" is hereby sentenced to three months of arresto
mayor with the accessory penalties of the law, to pay a fine of five hundred (P500.00) pesos, to indemnify the offended
party, Mayor Arsenio Lacson, in the sum of Ten Thousand Pesos (P10,000.00) pesos." The use of a comma (,) in the part
of the sentence is to make "the subsidiary imprisonment in case of insolvency" refer not only to non-payment of the
indemnity, but also to non-payment of the fine.

If the lower court intended to make the phrase "with subsidiary imprisonment in case of insolvency" refer to non-
payment of indemnity only and not to the non-payment of the fine, it would have omitted the comma (,), after the
phrase "to indemnify the offended party, Mayor Arsenio Lacson in the amount of P10,000.00 pesos," so that the
decision of the lower court would read:
From the facts above stated the Court finds the accused guilty of libel and he is hereby sentenced to three (3) months
of arresto mayor, to pay a fine of five hundred (P500.00) pesos, to indemnify the offended party, Mayor Arsenio Lacson,
in the sum of ten thousand (P10,000.00) pesos with subsidiary imprisonment in case of insolvency, and to pay the costs.

As thus worded and punctuated there would be no doubt that the lower court would want to make accused-appellant
serve the subsidiary imprisonment in case of non-payment of the indemnity only.

Besides, We see no plausible reason why the lower court would want accused-appellant to suffer subsidiary
imprisonment in case of insolvency to pay the indemnity only and not to suffer subsidiary imprisonment in case of non-
payment of the fine. Accordingly if according to the lower court's decision, the accused-appellant should suffer
subsidiary imprisonment in case of insolvency to pay the fine and the indemnity and the only modifications made by the
Court of Appeals are to eliminate the three (3) months of arresto mayor and to reduce the indemnity to the offended
party, Mayor Arsenio Lacson, from P10,000.00 to P5,000.00, then by force of logic and reason, the fine of P5000.00, the
reduced indemnity of P5,000.00 and the subsidiary imprisonment in case of insolvency should stand.

Fortunately, however, accused-appellant is favored by the retroactive force of Article 39 of the Revised Penal Code, as
amended by Republic Act No. 5465 which exempts an accused person from subsidiary imprisonment in case of
insolvency to pay his civil liability.2

It is a well known rule of legal hermeneutics that penal statutes are to be strictly construed against the government and
liberally in favor of the accused.3 In the interpretation of a penal statute, the tendency is to give it careful scrutiny, and
to construe it with such strictness as to safeguard the rights of the defendant. 4 Considering that Article 39 of the Revised
Penal Code, as amended, is favorable to the accused-appellant, the same should be made applicable to him. It is so
provided in Article 22 of the Revised Penal Code that:

Penal laws shall have a retroactive effect in so far as they favor the person guilty of a felony, who is not a habitual
criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at the time of the publication of such laws a
final sentence has been pronounced and the convict is serving sentence.

Thus applying Article 39 of the Revised Penal Code, as amended, to the accused-appellant, he cannot also be required to
serve his civil liability to the offended party in form of subsidiary imprisonment in case of insolvency because this is no
longer required by the aforesaid article.

Accused-appellant contends that he cannot be made to suffer subsidiary imprisonment because his civil liability has
been satisfied with the attachment secured by the offended party on the property of Agapito Subido, wherein he is
supposed to have an interest. He therefore argues that until the final determinations of Civil Case No. 71731 which
Agapito Subido filed to enjoin the Sheriff of Manila from proceeding with the sale of his property, accused-appellant's
liability for subsidiary imprisonment cannot attach as the determination of whether the accused is solvent or not is a
prejudicial question which must first be determined before subsidiary imprisonment may be imposed.

We cannot agree. Attachment does not operate as a satisfaction of the judgment on civil liability and the accused must
suffer subsidiary imprisonment in case of non-payment thereof. Subsidiary imprisonment applies when the offender is
insolvent as shown in the present case. There is nothing in the law that before subsidiary imprisonment may attach,
there must be prior determination of the question of solvency of the accused. The moment he cannot pay the fine, that
means he is insolvent and he must serve the same in form of subsidiary imprisonment. So accused-appellant has to
choose to pay the fine or serve in jail.

IN VIEW OF THE FOREGOING except with the modification that accused-appellant may no longer be required to suffer
subsidiary imprisonment in case of insolvency to pay the indemnity provided for in the judgment below, the Orders of
the lower court dated December 19 and 26, 1959 denying defendant-appellant's motion for cancellation of appeal bond
and sentencing him to suffer the subsidiary imprisonment in case of insolvency to pay the fine imposed by said
judgment, are hereby affirmed.

SO ORDERED.

Castro, (Chairman), Teehankee, Makasiar, Esguerra and Muñoz Palma, JJ., concur.

Footnotes
1 As the errors assigned involved purely questions of law, the honorable court of Appeals certified the case to Us,
pursuant to Section 17, par. 16, in relation to Section 31 of the Judiciary Act of 1948.

2 Art. 39. Subsidiary penalty.-If the convict has no property with which to meet the fine mentioned in paragraph 3 of the
next preceding article, he shall be subject to a subsidiary personal liability at the rate of one day for each eight pesos,
subject to the following rules:

1. If the principal penalty imposed be  prision correccional or arresto and fine, he shall remain under confinement until
his fine referred in the preceding paragraph is satisfied, but his subsidiary imprisonment shall not exceed one-third of
the term of the sentence, and in no case shall it continue for more than one year, and no fraction or part of a day shall
be counted against the prisoner.

2. When the principal penalty imposed be only a fine, the subsidiary imprisonment shall not exceed six months, if the
culprit shall have been prosecuted for a grave or less grave felony, and shall not exceed fifteen days, if for a light felony.

3. When the principal penalty imposed is higher than  prision correccional no subsidiary imprisonment shall be imposed
upon the culprit.

4. If the principal penalty imposed is not to be executed by confinement in a penal institution, but such penalty is of
fixed duration, the convict, during the period of time established in the preceding rules, shall continue to suffer the same
deprivations as those of which the principal penalty consists.

5. The subsidiary personal liability which the convict may have suffered by reason of his insolvency shall not relieve him
from the fine in case his financial circumstances should improve.

G.R. No. L-28021 December 15, 1977

JULIAN SANTULAN substituted by his children named PATROCINIO, ADORACION, ARTURO, CONSTANCIA, and PEPITA,
all surnamed SANTULAN and minor grandchildren, JOCELYN, ROSAURO and ROBERTO, all surnamed SANTULAN
assisted by their guardian ad litem,  PATROCINIO SANTULAN petitioners-appellants,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF AGRICULTURE AND NATURAL RESOURCES, THE DIRECTOR OF LANDS,
and ANTONIO LUSIN, substituted by his Heirs named TEODOSIA BALANZA (widow) and Children LEOPOLDO,
ARMANDO. ALFONSO, EMILIANO, MAGDALENA, ERLINDA and ESTRELLA (ESTER), all surnamed LUSIN, and Heirs of
CAROLINA LUSIN-LUCERO named MANOLITO LUCERO and MARIO LUCERO, respondents-appellees.

Isidoro Crisostomo for appellants Heirs of Julian Santulan.

Romulo C. Felizmeña for appellees Heirs of Antonio Lusin.

Solicitor General Arturo A. Alafriz Assistant Solicitor General Esmeraldo Umali and Solicitor Conrado T. Limcaoco for The
Executive Secretary, etc.

AQUINO, J.

This case is about the lease of a parcel of foreshore land of the public domain with an area of about four and one-half
hectares located at Barrio Kaingin, Kawit, Cavite abutting on Bacoor Bay and the Ankaw Creek.

It is protracted controversy that has been pending for more than thirty years between the rival claimants Julian Santulan
plan and Antonio Lusin, who have been succeeded by their heirs.

Santulan claimed that foreshore land was an extension of his land, Lot No. 986 of the Kawit cadastre, with an area of
17,301 square meters, registered in his name in 1937 under Original Certificate of Title No. 6 which was issued by virtue
of a free patent. The northern boundary of Lot No. 986 is Bacoor (Manila) Bay (Exh. A). The said foreshore land was
allegedly formed by soil deposits accumulated by the alluvial action of the sea.

On December 5, 1942 Santulan caused the said land to be surveyed. The survey plan was approved by the Director of
Lands in 1944 (Exh. B). On December 29, 1942 Santulan, pursuant to Lands Administrative Order No. 7-1, filed an
application, F.L.A. No. V 562, to lease for five years for agricultural purposes an area of 36,120 square meters of the said
foreshore land (Exh. F).
On that same date, December 29, 1942, Santulan, pursuant to Act No. 3077 and Lands Administrative Order No. 8-3,
filed with the Bureau of Lands an application for a revocable permit to occupy the said land. He indicated therein that he
would use the land for 11 capiz beds and oyster beds, the planting of bakawan and pagatpat and later to be developed
into a fishpond" (Exh. G).

Seven years later, or on December 22, 1949, Santulan filed with the Bureau of Fisheries an application for an ordinary
fishpond permit or lease of the said foreshore land (Special Use Permit, pp. A. No. 5114, Exh. H).

At the instance of the Director of Fisheries, the Director of Forestry investigated the condition of the said foreshore land.
The latter in his first indorsement dated June 19, 1950 found that it was swampy "and not an improved fishpond as
alleged by Antonio Lusin" and that it is within the disposable areas for agricultural purposes under the jurisdiction of the
Bureau of Lands (Exh. L-1).

The chief of the division of commercial fisheries sent a letter to Lusin dated April 28, 1950 apprising him that he was
reported to have illegally entered the area covered by Santulan's fishpond permit application and directing him to
refrain from introducing improvements, with the warning that court proceedings would be taken against him (Exh. J).

On January 12, 1951 an attorney, acting for the Director of Lands wrote the following letter to Lusin advising him to
vacate the disputed land and maintain the status quo:

Mr. Antonio Lusin

Caiñgin, Kawit, Cavite

S i r:

We have been informed that the area which is presently controverted by and between you and Julian Santulan, under
the applications noted above, was recently entered by you and some companion and that you are destroying the dikes
and other improvements previously constructed thereon by said Julian Santulan.

If this information is true, and inasmuch as you are aware that the controversy is still pending final adjudgment in this
Office, is desired that you take proper advice and leave the area and its existing improvements in status quo in order to
avoid possible confusion of rights which ma delay the final disposition of the area in question.

You are advised further that the acts imputed to you may make you liable to prosecution and punishment under the law;
and that whatever improvements you may make for yourself in the premises will not legally accrue to your benefit, nor
will they serve as basis for a claim to preferential rights. (Paragraphing supplied, Exh, J-1).

Santulan declared the said foreshore land in his name for tax purposes. Tax Declaration No. 2923, which took effect in
1948 and which cancelled Tax Declaration No. 13816 also in Santulan's name, shows that the land was assessed at P460.
He paid the realty taxes due on the said land for the years 1945-46, 1948-55 and 195760 (Exh. C, D and E, el seq.).

On the other hand, Antonio Lusin in 1942 and 1945 (he died in 1962) filed with the Bureau of Lands applications for a
revocable-permit and lease of a foreshore land, respectively, for the purpose of producing salt on the said land. He
claimed that he had been in the continuous and exclusive possession of the land since 1920, when it was still under
water, and that he had used it as a site of his fish corrals.

He allegedly converted two hectares of the said land into a fishpond. The entire area was enclosed with mud dikes and
provided with a concrete sluice gate and another sluice gate made of wood On the northern part of the land bordering
the bay were bamboo stakes placed at close intervals to serve as water breakers to protect the mud dikes from being
washed away by the action of the sea. Lusin introduced the alleged improvements from 1951 to 1953.

The 1942 foreshore lease applications of Santulan and Lusin gave rise to Bureau of Lands Conflict No. 8 (N). The Director
of Lands in his decision in that case dated February 1, 1951 found that the disputed land is foreshore land covered and
uncovered by the flow and ebb of the ordinary tides that it is an extension of Santulan's Lot No. 986 and it was formerly
a part of the sea; that Santulan was the first to enter the land and to make dikes thereon, and that Lusin entered the
land later and made dikes also (Exh. K made a part hereof for reference as Annex A).

The Director ruled that the disputed foreshore land was subject "to reparian rights which may he invoked by Santulan as
owner of the upland in accordance with section 32 of Lands Administrative Order No. 7-1" (Exh. K). Hence the Director
rejected Lusin's application for a foreshore lease and for a revocable permit and gave due course to Santulan's foreshore
lease application.

Lusin filed a motion for reconsideration. The Director in his order of October 19, 1951 denied that motion. lie found that
Lusin was a possessor in bad faith: that it is not true that Lusin had improved and possessed the said foreshore land for
twenty years, that the disputed area is covered by water, two to three feet deep during ordinary tides and is exposed
land after the ebb of the tides, and that Lusin's alleged possession and improvements could not nullify Santulan's
preferential right to lease the land by reason of his riparian rights. The Director ordered Lusin to vacate the land within
sixty days from notice (Exh. L made a part hereof for reference as Annex B).

Lusin appealed to the Acting Secretary of Agriculture and Natural Resources who in his decision of October 13, 1952
dismissed the appeal and affirmed the Director's 1951 decision (Exh. M made a part hereof for reference as Annex C).
Lusin's motion for reconsideration was denied in the Secretary's order of February 28, 1953 (Exh. N made a part hereof
for reference as Annex D).

Lusin asked for a reinvestigation of the case. His request was granted. The Department ordered a reinvestigation on May
12, 1953.

After receipt of the report of reinvestigation, the Undersecretary of Agriculture and Natural Resources, by authority of
the Secretary, in his order of December 14, 1954, reaffirmed the rejection of Lusin's revocable permit and foreshore
lease applications but ordered Santulan to reimburse to Lusin the appraised value of his improvements (Exh. O made a
part hereof for reference as Annex E).

Lusin appealed to the President of the Philippines after his motion for reconsideration was denied in the
Undersecretary's order of May 19, 1955 (Exh. OO made a part hereof for reference as Annex F).

Executive Secretary Juan C. Pajo, by authority of the President, held in his decision of April 10, 1958 that section 32 of
Lands Administrative Order No. 7-1 (promulgated by the Secretary of Agriculture and Natural Resources on April 30,
1936 pursuant to Acts Nos. 2874 and 3038) was "rendered obsolete" by section 67 of the Public Land Law which took
effect on December 1, 1936 (Exh. P made a part hereof for reference as Annex G).

On the basis of the foregoing ruling and since the record is silent as to whether or not the land in question has been
declared by the President as not necessary for the public service and as open to disposition (Sec. 61, Public Land Law),
the Executive Secretary sustained Lusin's appeal and reversed the orders of the Director of Lands and the Secretary of
Agriculture and Natural Resources in favor of Santulan. Secretary Pajo decided the case in the alternative as follows:

On the assumption that the land in question has been declared open for disposition and is not necessary for the public
service, this Office directs that an oral bidding for the leasing thereof to interested parties pursuant to the provisions of
Section 67 of Commonwealth Act .No. 141 be conducted and the contract of lease awarded to the highest bidder
whoever shall be the highest bidder, if other than the appellant, shall be required to pay to the appellant the appraised
value of the improvements introduced by him on the land to be determined by that Department.

If the land in question has not been so declared, this Office directs that a revocable permit under Section 68 of
Commonwealth Act No. 141 be Id to the appellant requiring him to pay permit fees since the year 1951.

Accordingly, the orders and decisions of that Department and the Bureau of Lands are hereby revoked.

Santulan's case was distinguished from that of Gonzalo Monzon whose Lot No. 987 adjoins Santulan's Lot No. 986.
Executive Secretary Fred Ruiz Castro (now Chief Justice) in his decision of May 10, 1954 upheld the preferential right of
Monzon to lease the foreshore land north of his lot, which foreshore land is adjacent to the foreshore land now in
dispute in this case (Exh. Q made a part hereof for reference as Annex H).

Santulan's motion for reconsideration was denied in the letter of the Acting Executive Secretary dated August 20, 1959
(Exh. W).

On October 22, 1959 Santulan filed in the Court of First Instance of Cavite a petition for certiorari wherein he alleged
that the Executive Secretary committed a grave abuse of discretion in misinterpreting certain provisions of Act No. 2874,
Commonwealth Act No. 141, and Lands Administrative Order No. 7-1.
In the lower court the parties agreed that the case Involves only a question of law. On August 18. 1961 the lower court
dismissed the petition and affirmed the Executive Secretary's decision. Santulan appealed to the Court of Appeals which
in its resolution of July 21, 1967 elevated the record to this Court on the ground that Santulan in his brief raised only the
legal questions of whether the Public Land Law repealed section 32 of Lands Administrative Order No. 7 1 and whether
the Executive Secretary's decision is "legally sound and correct" (CA-G. R. No. 30708-R).

It should be emphasized that. as found by tile investigators of the Bureau of Lands, Santulan was the prior possessor of
the foreshore land in question. lie had it surveyed in 1942. The survey plan Psu-115357) was approved by the Director of
Lands in 1944. Santulan paid the realty taxes on that land .

It should further be underscored that the regulations pie him a preferential right to lease the land as a riparian owner.
Lands Administrative Order No. 7-1 dated April 30. 1936. which was issued by the Secretary of Agriculture and Natural
Resources upon the recommendation of the Director of Lands for the disposition of alienable lands of the public domain,
provides:

32. Preference of the Reparian Owner — The owner of the property adjoining foreshore lands, marshy lands or lands
covered with water bordering upon shores or banks of navigable lakes or rivers, shall be given preference to apply for
such lands adjoining his property as may not be needed for the public service, subject to the laws and regulations
governing lands of this nature, provided that he applies therefor within sixty (60) days from the date he receives a
communication from the Director of Lands advising him of his preferential right.

Paragraph 32 quoted above is a substantial copy of paragraph 4 of Lands Administrative Order No. 8-3 dated April 20,
1936, which was promulgated by the Secretary of Agriculture and Natural Resources upon the recommendation of the
Director of Lands for issuance of temporary permits of occupation and use of agricultural lands of the public domain.

The word "riparian" in paragraphs 32 and 4 of the departmental regulations is used in a broad sense as referring to any
property having a water frontage (Shepard's Point Land Co. vs. Atlantic Hotel, 44 S. E. 39, 45, 132 N. C. 517, 65 C. J. S.
143, note 84). Strictly speaking, "riparian" refers to rivers. A riparian owner is a person who owns land situated on the
bank of a river.

But in paragraphs 32 and 4, the term "riparian owner" embraces not only the owners of lands on the banks of rivers but
also the littoral owners, meaning the owners of lands bordering the shore of the sea or lake or other tidal waters. The
littoral is the coastal region including both the land along the coast and the water near the coast or the shore zone
between the high and low watermarks.

Therefore, on the basis of paragraphs 32 and 4 of the said administrative regulations, Santulan or his heirs Should be
allowed to leased or occupy the said foreshore land.

But the Executive Secretary ruled that paragraph 32 was rendered obsolete by Commonwealth Act No. 141 or, as held
by the trial court, Lands Administrative Order No. 7-1 was repealed by the Public Land Law. Is that conclusion correct?
We hold that it is wrong.

It is true that Lands Administrative Orders Nos. 7-1 and 8-3 were issued when the 1919 Public Land Act was in force or
before the present Public Land Law took effect on December 1, 1936. But that circumstance would not necessarily mean
that the said departmental regulations are not good under the 1936 Public Land Law.

In rationalizing the alleged repeal of paragraph 32, the Executive Secretary cited the following provisions of Act No.
2874, the 1919 Public Land Act (15 Public Land laws 24):

SEC. 64. The lease or sale shall be adjudicated to the highest bidder; and if there is no bidder besides the applicant, it
shall be adjudicated to him. The provisions of section twenty-seven of this Act shall be applied wherever applicable. If all
or part of the lots remain unleased or unsold the Director of Lands Shall from time to time announce in the Offcial
Gazette or otherwise the lease or sale of those lots if necessary . (Section 27 refers to sealed bidding).

The Executive Secretary held that the above-quoted section 64 was by the for provisions of on wealth Act No. 141 which
took effect on December 1, 1936:

SEC. 67. The lease or sale shall be made through oral bidding-, and ajudication shall be made to the highest bidder.
However, where m applicant has made improvements on the land by virtue of a permit issued to him by competent
authority, the sale or lease shall be made by sealed bidding as prescribed in section twenty-six of this Act, the provisions
of which shall be applied wherever applicable. If all or Dart of the lots remain unleased or unsold. the Director of Lands
shall from time to time announce in the Official Gazzate, or in any other newspapers of general circulation, the lease or
sale of those lots, if necessary. (Section 26, like section 27 of Act No. 2874, refers to sealed bidding).

The Executive Secretary noted that under section 64 of Act No. 2874 sealed bidding was the general rule of procedure in
an award of a lease of foreshore land and that the t is entitled to equal the bid of the highest bidder. On the other hand,
under 67, oral bidding is the general rule.

Hence, the Executive Secretary assumed that, while under section 64 of the 1919 old Public Land Act, the fact that the
applicant has a preferential right to lease foreshore land was a crucial factor it is thus under section 67 of the 1936
Public Land Law because in oral bidding the appellant is not entitled to equal the bid of the highest bidder.

The Executive Secretary concluded that, because the preferential right of the applicant to lease foreshore land was
immaterial under 67 of the present Public Land Law, paragraph 32 of Lands Administrative Order No. 7-1, which gives
such preference. had become "idle and useless".

That conclusion is wrong because it is based on the erroneous hypothesis that section 64 of the 1919 Public Land Act is
different from section 67 of the 1936 Public Land Law. They are not different. The truth is that section 64 was amended
by Act No. 3517 which took effect on February 4, 1919 (24 Public Laws 416). Section 64, as thus amended,
is substantially the same as section 67 of the 1936 Public Land Law.

That fact was overlooked by the Executive Secretary. Hence, his conclusion, that paragraph 32 of Lands Administrative
Order No. 71 was repealed or rendered obsolete by section 67 of the present Public Land Law, is wrong because its
premise is wrong.

In other words, paragraph 32 of Lands Administrative Order No. 7-1, issued on April 30, 1936, was promulgated under
section 64 of the old Public Land Law, as amended. And since the amended section 64 was substantially reproduced in
section 67 of the 1936 Public Land Law, it is glaringly incorrect to say that section 67 rendered obsolete the said
paragraph 32. Paragraph 32 is still in force and is good under the existing Public Land Law.

The foregoing discussion reveals that the Executive Summary's rationalization of the alleged repeal of paragraph 32 of
Lands Administrative Order No. 7-1 (identical to paragraph 4 of Lands Administrative Order No. 8-3) is not only deficient
in clarity and cogency but is predicated on the false assumption that section 64 of the 1919 Public Land Act is different
from section 67 of the present Public Land Law. Consequently, the aforementioned decision of Executive Secretary Juan
C. Pajo under review bas to be set aside.

This case is governed by the precedent established in the case of Gonzalo Monzon, which, as already noted, is similar to
this cm since the foreshore land involved in the Monzon case is adjacent to the foreshore land involved in this case.

In the Monzon case, the Office of the President, applying the oft-cited paragraph 32 of Lands Administrative Order No. 7-
1 held that Monzon, the littoral owner of the registered land abutting upon the foreshore land, has the preferential right
to lease the foreshore land,

The location of the lots of Santulan and Monzon and the foreshore lands abutting thereon is shown in the following
sketch bawd on the plan, Psu-115357 (Exh. B):

Manila Bay or Bacoor Bay

Disputed Area  

Psu-1 15357 Psu- 1 15358

Foreshore land Forshore land

claimed by leased to

Julian Santulan Gonzalo Monzon

and  

Antonio Lusin  

Lot No. 986 Lot no. 987

Belonging to Belonging to

Julian Santulan Gonzalo Monzon

Considering that the foreshore land abutting upon Santolan's lot is in the same situation as the foreshore land abutting
upon Monzon's lot, there is no reason why Santulan should not enjoy, with respect to the disputed foreshore land, the
rights given to Monzon over the foreshore land adjacent to his lot.

Now, then, is there any justification for giving to the littoral owner the preferential right to lease the foreshore land
abutting on his land?

That rule in paragraph 32 is in consonance with article 4 of the Spanish Law of Waters of 1866 which provides that, while
lands added to the shores by accretions and alluvial deposits caused by the action of the sea form part of the public
domain, such lands, "when they are no longer washed by the waters of the sea and are not necessary for purposes of
public utility, or for the establishment of special industries, or for the coast guard service", shall be declared by the
Government "to be the property of the owner of the estates adjacent thereto and as increment thereof" (cited in Ignacio
vs. Director of Lands, 108 Phil. 335, 338).

In other words, article 4 recognizes the preferential right of the littoral owner (riparian according to paragraph 32) to the
foreshore land formed by accretions or alluvial deposits due to the action of the sea (Ker & Co. vs. Cauden 6 Phil. 732,
736, 223 U.S. 268, 56 L. Ed. 432, 435; Jover vs. Insular Government, 10 Phil. 522, 40 Phil. 1094, 1100, 221 U.S. 623, 55 L.
Ed. 884).

The reason for that preferential right is the same as the justification for giving accretions to the riparian owner, which is
that accretion compensates the riparian owner for the diminutions which his land suffers by reason of the destructive
force of the waters (Cortes vs. City of Manila, 10 Phil. 567). So, in the case of littoral lands, he who loses by the
encroachments of the sea should gain by its recession (Banks vs. Ogden 2 Wall. 57, 67, 17 L. Ed. 818, 821).

That preferential right is recognized in American jurisprudence where the rule is that the owner of the land adjacent to
navigable waters has certain riparian or littoral rights of a proprietary nature not possessed by the general public which
rights are incident to the ownership of the banks or the uplands: riparian as respects the waters of a river and littoral as
to sea waters or the waters of a lake (65 C.J. S. 143-145).

It may be mentioned that the Director of Lands stated in his manifestation of October 26, 1977 that Lands
Administrative Orders Nos. 7-1 and 8-3 are still in force and have not been superseded by any later regulations and that
the directive of the President of the Philippines to the Director of Lands dated May 24, 1966, stopping the grant of
foreshore leases all along Manila Bay, towards Cavite and Bataan, has not rendered the instant case moot and academic
"because the foreshore lease application involved is pending award."

In view of the foregoing considerations, the trial court's decision and the decision of the Executive Secretary dated April
10, 1958 are reversed and set aside and the order of the Undersecretary of Agriculture and Natural Resources dated
December 14, 1954 and the orders of the Director of Lands dated February I and October 19, 1951 are affirmed.

The lease application of Julian Santulan mentioned in the order of February 1, 1951 should be recorded in the names of
his heirs and the obligation to make reimbursement mentioned in the dispositive part of the Undersecretary's order
should now devolve upon the heirs of Santolan. The reimbursement should be made to the heirs of the late Antonio
Lusin The obligation to vacate the disputed land, as required in the Director's order of October 19, 1951 devolves upon
the heirs of Lusin Costs in both instances against respondent heirs of Lusin (As amended by Resolution of February 17,
1977.

SO ORDERED.
Barredo (Actg. Chairman), Antonio, Concepcion Jr. and Guerrero, JJ., concur.

Guerrero, J., was designated to sit in the Second Division.

Fernando and Santos, JJ., are on leave.

Annexes to Opinion in L-28021, Julian Santolan

vs. Executive , et al.

F. L. A. No. V-562, R. P. A. (New). Julian Santolan, Applicant & Contestant vs. F. L. A. (New), R. P. A. (New), B. L. Conflict
No. 8 (N) Psu- 1 15357, Kawit, Cavite.

Julian Santolan, Applicant-Appellant vs. Antonio Lusin, Applicant-Appellant, D.A.N.R. Case No. 625, Psu- 1 15357, Kawit,
Cavite.

Annex A — Order of Director of Lands dated February 1, 1951.

Annex B — Order of Director of Lands dated October 19, 1951.

Annex C — Decision of Acting Secretary of Agriculture and Natural Resources dated October 13, 1952.

Annex D — Order of Secretary of Agriculture and Natural Resources dated February 28,1953.

Annex E — Order of Undersecretary of Agriculture and Natural Resource dated December 14, 1954.

Annex F — Order of Undersecretary of Agriculture and Natural Resources dated May 19, 1955.

Annex G — Decision of Executive Secretary Juan C. Pajo dated April 10, 1958.

Annex H — Decision of Executive Secretary Fred Ruiz Castro dated -May 10, 1954 in Emiliano del Rosario vs. Gonzalo
Monzon.

ANNEX A

ORDER

Julian Santolan, who owns Lot No. 986 of the Kawit Cadastre, under a free patent grant with Original Certificate of Title
No. 6 issued to him on June 9, 1937, claims preferential rights to all the areas extending seaward from the said lot. He
caused the said areas to be surveyed for him in 1942, and the survey plan thereof was approved in 1944, as may be seen
in the Survey Plan Psu-115357 of this Office which is reproduced in the sketch drawn. on the back of the last page
hereof. Except the portion marked "A" in the sketch, he made a foreshore lease application and a revocable permit
application for these areas in 1942 to devote the areas applied for to fishpond purposes. Presently, he now includes the
portion "A" in his applications herein mentioned to be devoted to the same purposes — in fact, he now intends to utilize
the entire area comprised in his Survey Psu-115357 for fishery purposes and has filed therefor with the Bureau of
Fisheries fishpond permit application No. 5114. Upon this claim he contests the revocable permit (new) application and
the foreshore lease (new) application for the portion O these mm marked "X" in the sketch which were filed by Antonio
Lusin in 1942 and 1945, respectively, for salt-producing purposes.

Lot No. 986 of the Kawit Cadastre, mentioned above as owned by Julian Santolan, a to be bounded on the north by the
Bacoor Bay. It is evident therefore that the areas now in Santolan's Survey Psu-115357, were formerly parts of the bay,
and that presently they exist as a result of the of the waters of the sea. Investigation disclosed that these areas are now
foreshore lands, — covered and uncovered by the flow and ebb of the tides. Santolan was found to have entered the
areas first and made dikes Lusin was found to have entered lately and made does also. None of them, however, has
obtained from this Office any permit of occupancy and use, and their applications are not yet approved.

On the basis alone of actual occupancy or introduction of improvements neither of the parties here may claim
preferential rights, for under the law and regulations, it is only such occupancy and introduction of improvements as are
made upon the authority of an official permit issued by this Office which could serve as a reason for holding a sealed
bidding in a public auction of the right to low at which the permittee is given the preferred right to equal the highest bid
that might be put by any other party. This is the rule prescribed by Section 67 of Commonwealth Act No. 141 (the Public
land Act)' It appears, however, that the areas — portions "A", "X" and the parts extending up to the Bar Bay now, as may
be seen in the sketch, — which are comprised by Santolan's Survey Plan -Psu-115357, are immediately adjoining Lot No.
986, which is his private property, and are extensions of the said lot to the sea. The areas, being foreshore lands, are
therefore subject to riparian fights which may be invoked by Santolan as owner of the upland in accordance With
Section 32 of lands Administrative Order No. 7-1 which provides the following:

Sec. 32. The owner of the property adjoining foreshore lands, marshy lands, or lands covered with water bordering upon
the shores or banks of navigable lakes or rivers, shall be given preference to apply for such lands adjoining his property
as may not be needed for the public service, subject to the laws and regulations governing lands of this nature, provided
that he applies therefor within 60 days from the date he receives a communication from the Director of Lands advising
him of his preferential right

As Julian Santolan is interested in utilizing the entire area covered by his Survey Psu- 1 15357 over which he is fully
entitled to exercise his riparian rights, the above-noted foreshore lease (new) application and revocable (new)
application of Antonio Lusin, both covering the portion marked "X" in the sketch, are hereby rejected. The lease
application of Santolan, shall be recorded as Foreshore Urn Application No. 562 and given due course for the whole area
(including portion "A) shown in the said sketch.

SO ORDERED.

Manila, Philippines, February 1, 1951.

JOSE P. DANS
Director of Lands

ANNEX B

ORDER

Counsel for respondent Antonio Lusin has filed in due time a motion for the reconsideration of our Order of February 1,
1951, which resolved this case in favor of contestant Julian Santolan, praying that the said order be set aside and the
case, reopened for purposes of a formal hearing for the submission of evidence. Substantially stated, respondent Lusin
claims that he is entitled to preference because he has been in possession of the premises for a period of over twenty
years, placing stakes and planting aquatic trees for the raising and cultivation of shell fish and sea shells, besides
constructing dikes for pending fish and making salt beds, — all these works undertaken by him being the cause for the
gradual filling of the area and its conversion into a productive state. He contends that the areas under question had
been formed thru "artificial accretion" caused by his own labor and, consequently, he has the right of pre-emption.

There is no question, however, that the areas under question are parts of the foreshore. Under Section 61 of
Commonwealth Act No. 141 (Public Land Act), they are disposable to private parties by k only and not otherwise; and
under Section 67 of the same Act, the lease shall be made thru oral bidding, the adjudication to be made to the highest
bidder.

There is no question also that the areas under question extend to the sea from lot No. 986 of the Kawit Cadastre, which
is actually owned by respondent Santolan under Original Certificate of Title No. 6 of the land records of Cavite.
Undoubtedly, respondent has riparian rights to the foreshore in question which he can invoke against contestant Lusin
under the provisions of Section 32 of Lands Administrative Order No. 7-1, quoted in toto in the order sought to be
reconsidered.

Records show that the areas under question are also involved in the Fishpond Application No. 5114 of Julian Santolan
with the Bureau of Fisheries which is also contested by Antonio. lt appears that upon request of the Director of Fisheries
to the Bureau of Forestry for certification as to the availability of the areas for fishery purposes, the latter made
investigation, inquiring at the same time into the claim of Antonio Lusin, made formally in writing, that he has improved
the areas into a fishpond and has been in occupation thereof for more than 20 years. The Bureau of Forestry made the
findings that those areas are within the disposable areas for agricultural purposes under the jurisdiction of the Bureau of
Lands; and that they are swampy lands, formerly under sea water of the Bacoor Bay, "and not an improved fishpond as
alleged by Antonio Lusin". These findings were transmitted to the Director of Fisheries under first indorsement dated
June 19, 1950.
Our own investigating officer, reporting on this case on January 25, 1951, stated the following: "On December 15, 1950,
when I conducted the first ocular inspection of the premises in the presence of both parties, the only visible
improvements found thereon are the newly-constructed dikes made thereon by Julian Santolan, a few bacauan and ape-
ape trees of about two to three years old, bamboo stakes placed thereon at intervals, and a small old hut located at
almost the middle of the land in question. All these improvements were claimed to have been introduced by Julian
Santolan. Antonio Lusin, however, claimed that those bamboo stakes found therein were his."

It is evident from the findings of both the inspecting officer of the Bureau of Forestry and our own investigating officer
that the areas under question are foreshore lands, and that they have not been really improved and possessed by
respondent Lusin for over twenty years as he alleged. The improvements found therein have been recently made, and
they are not of such nature and extent as would have changed the character of the areas as foreshore. In fact, according
to the investigating officer, the areas have been seen by him on different occasions, and he found that the same, as well
as the neighboring areas in the same belt, were covered by tidal waters of from 2 to 3 feet deep during ordinary rise of
the tides, and uncovered by the tides at ebb.

There is, therefore, no reason for changing our disposition in our order of February 1, 1951. It is not necessary to re-
open the case to receive evidence on respondent's allegation that he has been in possession of the premises for over 20
years and has gradually improved them because, aside from the fact that the allegation is belied by the physical
condition of the premises, whatever evidence may be gathered on that allegation could not change the nature of the
areas as foreshore, nor would it avoid the rights of contestant as riparian owner. The presence of the respondent in the
premises has not been authorize by competent authorities, and his introduction of improvements thereon was not done
with proper permit of temporary occupancy and -use such as is prescribed in our administrative practice. The
circumstances under which he made improvements cannot justify his claim for a preferred right under Section 67 of the
Public Land Act; on the contrary, he stands to forfeit the improvements to the Government for, as reported by our
investigating officer, he entered the Premises and commenced making the improvements after contestant Santolan
himself has already made improvements, and after he has been warned on December 15, 1950 by the investigating
officer not to continue working, which warning was confirmed by us in our letter to him of January 12, 1951. His bad
faith is quite evident, and he cannot avail of his presence in the premises now to demand the issuance to him of a
provisional or revocable permit of temporary occupancy and use under our rules and regulations in order to legal his
entry and give validity to his improvements. The right to demand issuance of such a permit is concomittant to the right
of contestant Santolan to be a preferred applicant by virtue of his riparian right recognized in Section 32 of Lands
Administrative Order No. 7-1 cited hereinabove.

IN VIEW HEREOF, the instant motion for reconsideration and reinvestigation of respondent Antonio Lusin is hereby
denied, and he shall vacate the premises within 60 days from receipt of notice hereof.

SO ORDERED.

Manila, Philippines, October 19, 1951.

JOSE P. DANS
Director of Lands

ANNEX C

DECISION

The order of the Director of Lands dated February 1, 1951, rejected Foreshore Lease Application (New) and Revocable
Permit Application (New) of Antonio Lusin and gave due course to the Foreshore Lease Application No. 562 of Julian
Santolan. Antonio Lusin claims that the order is against the fact and the law. He presented three (3) motions for
reconsideration: one on October 19, 1951; the other on December 12, 1951; and the last on April 9, 1952. Said motions
were all denied. Hence, the present appeal. The subject of contention is the strip of land having an area of 41/2 hectares
from Lot No. 986 of the Kawit Cadastre No. 203 to the waters of Bacoor Bay. Lot No. 986 is covered by I Certificate of
Title No. 6 issued to Julian Santolan on June 9, 1937. Santolan's titled property is bounded on the north by Bacoor Bay.
On December 5, 1942, Santolan filed his foreclosure km application for the entire tract entervening between his
property and Bacoor Bay. So he caused Psu- 115357 to be executed and same was approved in 1944 by the Director of
Lands.

On November 26, 1945, Antonio Lusin applied for permit for an area of 4.5 for salt bed purposes. The area for which
permit was asked is by his F.L.A. (New) filed on November 17, 1945, the boundaries of which are as follows:

NE — V. del Rosario and E. del Rosario

SE — Julian Santolan

SW — Ankaw River

NW — Bacoor Bay

The two applications of Santolan and Lusin cover the same area. Julian Santolan duly protested in 1946 against Lusin's
application. The question to be decided in this appeal is: Which of the two applicants, Julian Santolan or Antonio Lusin,
has right of preference to the land in controversy?

By virtue of the fact that he is a riparian owner, Julian Santolan has the right of preference pursuant to the provisions of
Section 32 Of Administrative Order No. 7-1, which reads as follows:

Sec. 32. The owner of the property adjoining foreshore lands, marshy lands, or hinds covered with water bordering upon
the shores or banks of navigable lakes or rivers, shall be given preference to apply for such lands adjoining his property
as may not be needed for the public service, subject in the laws and regulations governing lands of this nature, provided
that he applies therefor within sixty (60) days from the date he receives communication from the Director of Lands
advising him of his preferential right.

It is true that appellant Lusin introduced improvements on the in question, but that fact does not give him preferential
right , not only because he had not acquired any permit from the Bureau of Lands before doing so, but also because his
entry on the was duly protested by Santolan.

IN VIEW OF ALL THE FOREGOING, and finding that the order of the Director of lands on Feb. 1, 1951, is in accordance
with the facts of record and the provisions of the law on the matter, the herein appeal from said order should be, as
hereby it is, dismissed.

SO ORDERED.

Manila, Philippines, October 13, 1952.

JOSE S. CAMUS
Acting Secretary of Agriculture
and Natural Resources

ANNEX D

ORDER

This is a motion filed by Antonio Lusin, thru counsel, for the reconsideration of the decision of this Office dated October
13, 1952, dismissing his appeal from the decision of the Director of Lands under date of February 1, 1951.

In support of the said motion for reconsideration, Lusin substantially alleges that he has been improving the land in
question since 1920, spending for such improvements no more than P20,000.00, and for that reason, he should be given
the preferential right to acquire the said land. To reinforce his allegation, movant cites the case of Rosalia Vida Vda. de
Tirona vs. Magdaleno Tragico, CA G.R. No. 9050, decided by the Court of Appeals on June 30, 1943, wherein it was held
that because Tragico has constructed fishpond on a portion of the land in question by means of the improvements he
has introduced thereon and has possessed the land for sufficient time to acquire the land by right of prescription, he was
awarded the land in dispute.
We have found this allegation of movant to be far from the truth. lt is the finding of the investigating officer who made
an investigation of this case that it is Julian Santolan and not movant Lusin who has been actually occupying the land in
question and introducing improvements thereon. The pertinent portion of his M reads as follows:

On December 16, 1950,, when I conducted the first ocular inspection of the premises in the presence of both parties, the
only visible improvements found thereon were the newly constructed dikes made thereon by Julius Santolan, a few
bacauan and ape-ape trees of about two to three years old, bamboo stakes placed thereon at intervals and a small old
hut located at almost the middle of the land in question. All these improvements were claimed to have been introduced
thereon by Julian Santolan. Antonio Lusin, however, claimed that the bamboo stakes found thereon were his.

Moreover, according to the further finding of the said investigating officer, the WW in question fails under the category
of foreshore land. That portion of his report referring to this finding is hereby quoted as follows:

It may not be amiss to state in this connection that I have. or different occassions, the opportunity to inspect the land
subject hereof on both high and low tides. During ordinary low tide, the whole area. and further seaward, is entirely ex
to the surface while during ordinary high tide, it is wholly covered with tidal water with an approximate depth of two to
three feet. The land in question in its entirety is marshy covered and uncovered by the ebb and flow of tidal water.

As the land is a foreshore land, the same is susceptible to the riparian right of the owner of the adjoining land. According
to Section 32 of Lands Administrative Order No. 7-1, the owner of the property adjoining foreshore land, shall be given
preference to apply for such land adjoining his property as may not be needed for the public service. Inasmuch as the
land in question adjoins Lot No. 980, Kawit Cadastre, which is a private property of Julian Santolan, said Julian Santolan
shall have the preference right to apply therefor over and above any other applicant. It may be mentioned, in this
connection, that the said case of Rosalia Vida Vda. de Tirona vs. Magdaleno Tragico who had and improved the land
claimed by him, it is Santolan and riot movant Lusin who has been actually occupying and improving the land subject of
the present controversy.

WHEREFORE, the instant motion for reconsideration filed by Antonio Lusin, as well as his request for reinvestigation of
this case, should be, as hereby it is, denied.

SO ORDERED.

Manila, Philippines, February 28,1953.

FERNANDO LOPEZ
Secretary of Agriculture and
Natural Resources

ANNEX E

ORDER

On October 13, 1952, the Office a in connection with the above-case can, the dispositive portion of which reads as
follows:

In view of all the foregoing and that the order of the Director of Lands on February 1, 1961, is in with the facts of record
and the provisions of law on the matter the herein appeal from the said order should be, as hereby it is dismissed.

From the said decision Antonio Lusin filed a motion for reconsideration which was denied as per order of this Office
dated February 28, 1953. Still not satisfied with the aforementioned order, Lusin again filed a second notion for
reconsideration predicating his motion on the following grounds:

1. That he (Lusin) is in actual ion of the land in question since 1920;

2. That said area is an agricultural land actually devoted to fishpond and, therefore, is not a foreshore land;

3. That even granting without admitting that Santolan is a riparian owner, Santolan had lost his riparian right thereto in
view of the continuous ion by Lusin of the area since 1920; and
4. That in the investigation relied upon by the Director of Lands in his decision and confirmed by this Office, the movant
herein was not given opportunity to be heard because the said investigation was never completed, and as a result, the
conclusions of the investigator thereat were one sided

Adhering to its Policy of giving party litigants the outmost opportunity to present their respective sides of the case, this
Office ordered a reinvestigation of the case to determine whether or not the allegations of Antonio Lusin are true.

From the said reinvestigation, the facts of this case may be stated as follows:

The disputed area is a strip of land containing an approximate area of 4-1/2 hectares located at the Barrio of Kaingin,
Municipality of Kawit, Province of Cavite- lt is bounded on the North by Bacoor Bay, on the East by the property
occupied by Vicente del Rosario and E. del Rosario, on the South by Lot No. 896 of Kawit Cadastre No. 203; and on the
West by Ankaw River. Lot 986, mentioned above as the boundary of the area in question on the South, is owned and
possessed by Julian Santolan, his ownership thereof being evidenced by a free patent grant with Original Certificate of
Title No. 6 issued on June 9, 1937. The only issue to be resolved in this case is whether or not Julian Santolan, as riparian
owner, is entitled to the preference provided for in Section 32, Lands Administrative Order No. 7-1, which reads as
follows:

32. Preference of Riparian Owner.— The owner of the property adjoining foreshore lands, marshy lands, or lands
covered with water bordering upon the shores or banks of navigable lakes or rivers, shall be given preference to apply or
such lands adjoining his property as may not be needed for the public service, subject to the laws and regulations
governing Ian of this nature, provided that he applies therefor within sixty (60) days from the date he receives a
communication from the Director of Lands advising him of his preferential right.

During the reinvestigation of this case by a representative of this Office, it was disclosed that Antonio Lusin is the actual
occupant of the area in question - his present possession thereof dating back as of 1951. During his occupation, Lusin
has introduced considerable improvements in the area investing his fife sa therein. Today, a portion of approximately
two hectares of the said area is a complete fishpond surrounded with dikes. A concrete gate was constructed on the
western side of the fishpond in 1951. Water breakers were constructed around the dikes to protect them from the
action of the waves. The remaining portion of the area in question is fenced with bamboo stakes.

On the other hand, it is apparent that the area in question is an extension of Lot 986 to the sea and that its present
existence is the result of the continuous recession of the water of the sea. There is no doubt that the area in question is
a foreshore, it being situated along the shore lying between medium high and low water marks and is covered and
uncovered by the flow and ebb of ordinary tide.

Both Parties claim prior ion of the disputed area, Santolan's claim dating way back in 1907, the year he claims said area
was donated to him by his father-in-law while Lusin alleges that he was already in possession of the same since 1920.
The evidence presented by both parties during the reinvestigation were so diametrically opposed with each other that
they only create doubts as to the veracity of the respective claims of said parties. From the testimonies of witnesses for
both sides, there could be gathered sufficient grounds to believe that prior to 1942, neither Party Possessed the area to
the exclusion of the other. Rather, there are good reasons to believe that both parties fished in the premises jointly
and/or simultaneously without claiming the property exclusively for themselves because then the area was covered with
water which at that time was still deep. It was only in 1942 that Julian Santolan took positive step to claim the property
by filing a foreshore lease and a revocable permit application for said area with the intention of converting the same into
a fishpond. Santolan caused said area to be surveyed in 1942, the survey plan was approved in 1944 as may be seen in
survey Plan Psu- 115357 of the Bureau of Lands. Since 1942, Santolan exercised dominion over the property although
Lusin occasionally entered the premises with a similar intention of claiming the area for himself. In January of 1951 Lusin
entered the area in question and wrested the n thereof from Santolan. Since then up to the present, Lusin is in
continuous possession of the same notwithstanding the vigorous opposition of Santolan.

Lusin alleges that the area in question does not fall within the purview of the above quoted Section 32 of Lands
Administrative Order No. 7-1 on the theory that the lands enumerated in said provision, whether foreshore lands,
marshy lands, or lands covered with water, must be bordering upon the shores or banks of navigable lakes or rivers. And
it is argued that the area in question is bordering the shores of Manila Bay, which is neither a lake nor a river, the owner
of the adjoining property is not en to the preferential right accorded by said Lands Administrative Order.

We cannot agree with this contention. This Office is of the opinion and so holds that the said provision of Lands
Administrative Order No. 7-1, Section 32 speaks of the following kinds of lands, distinct and separate from one another:
(1) Foreshore lands

(2) Marshy lands, or

(3) Land covered with water bordering upon the shores of navigable lakes or rivers.

The phrase "bordering upon the shores of navigable lakes or river" in said provision modifies only the third classification,
that is, "lands covered with water", for if the law that said phrase should modify the three types of land enumerated are
then the punctuation mark, comma, should not have been placed before the alternative "or" but instead between the
words "water" and "bordering" making said provision to appear as follows:

The owner of the property adjoining foreshore ands marshy lands or lands covered with water, bordering upon the
shores or banks of navigable lakes or rivers ... .

The use of the alternative "or" instead of the conjunction "and" shows the intention of the law in segregating foreshore
lands from marshy lands and those two from lands covered with water bordering upon shores of navigable lakes or
rivers.

It is also alleged that even granting that Santolan was the preferential rights accorded to a riparian owner, said right has
prescribed on the ground that Lusin has been in continuous ion of the said area since 1920. This allegation was not duly
proven during the reinvestigation. While Lusin claims ion of the disputed area since 1920, on the other hand. Santolan
claims that he possessed the same since 1907 when it was donated to him by his father-in-law. As we have- already
stated, it is the - finding of this Office that prior to 1942, neither party the premises exclusively. It was only in 1942 when
Santolan took positive steps to claim the area for himself. There are even evidence on record that Santolan paid the land
taxes for the area in 1936. In 1951, Lusin effected his entry to the area up to the present. It may be recalled, however,
that these actuations of Lusin had been the subject of a criminal complaint filed by Santolan before the Justice of the
Peace Court of Kawit, Cavite, wherein Lusin was acquitted on the ground that his guilt was not proven beyond
reasonable doubt.

Needless to say, proof beyond reasonable doubt is absolutely necessary before conviction in criminal cases could be
had. On the other hand, preponderance of evidence is sufficient to prove a matter of fact in civil and/or administrative
cases. The preponderance of evidence adduced at the reinvestigation of this case conducted by a representative of this
Office, shows that the present occupation of Lusin of the area in question was effected by force, although there are good
reasons to believe that such force was employed by Lusin to assert what he believed was his right over the property in
question.

From the foregoing facts and circumstances, it is therefore, apparent that the area in question is a foreshore land, and
Santolan, being the riparian owner, is entitled to the preferential rights accorded by the provision of Section 32 of Lands
Administrative Order No. 7-1. Considering, however, the fact that during the reinvestigation of this case, it was disclosed
that Antonio Lusin had introduced considerable improvements in the premises and had invested his life savings therefor,
and considering further that if Santolan were the one who converted the area into a fishpond, as he intends to do, he
would have incurred the same expenses as was incurred by Lusin in the premises in question, it is the belief of this Office
that justice would be fully served if Santolan be required to reimburse Lusin of the value of the improvements now
existing in the area as may be appraised by the Committee on Appraisal of the Bureau of Lands.

WHEREFORE, the above-noted foreshore lease (New) application and revocable permit (New) application of Antonio
Lusin should remain, as hereby it is, REJECTED; and Foreshore Lease Application No. V-65 of Julian Santolan given due
course, PROVIDED, he reimburses Antonio Lusin of the appraised value of the improvements now existing in the area
within sixty (60) days after notification of said appraisal.

The Director of Lands is hereby directed to instruct the Committee on Appraisal concerned to make the necessary
appraisal of the value of the improvements now existing in the area in question within thirty (30) days from receipt of
this order and to notify Julian Santolan of the result of said appraisal.

In the event that Julian Santolan fails to reimburse Antonio Lusin of the appraisal value of the said improvements within
the period specified in this order, he shall lose his preferential rights over the area and Antonio Lusin will be allowed to
file an appropriate public land application therefor.

SO ORDERED.
Manila, Philippines, December 14, 1954.

By Authority of the Secretary:

JAIME M. FERRER
Undersecretary of Agriculture
and Natural Resources

ANNEX F

ORDER

On December 14, 1954, this Office issued an order in connection with the above-entitled case wherein the rejection of
the foreshore lease application and revocable permit (both new) of Antonio Lusin was upheld and Foreshore Lease
Action No. V-62 of Julian Santolan given due course provided he reimburses Antonio Lusin of the appraised value of the
improvements now existing in the area within sixty (60) days after notification of said appraisal.

From said order, both parties to this conflict filed separate motions seeking reconsideration of the same.

Santolan premised his motion on the theory that as fat as that po of the order which requires him to reimburse Lusin of
the appraised value of the improvements within sixty (60) days after notification of said appraisal is concerned, same is
contrary to the provisions of Commonwealth Act No. 141 and of the New Civil Code.

Santolan argues that the best procedure that should have been followed in the disposition of this case was for the
Government to forfeit all the improvements introduced by Lusin in the area in question in its (Government's) favor and
then let Santolan pay to the Government the appraised value of said improvements within ten (10) years after
notification of said appraisal. He further argues that the "law does not authorize the Secretary of Agriculture and Natural
Resources to dispose of the proceeds of the sale of the improvement to any person whomsoever", and "certainly the
Secretary does not claim the prerogative of disbursing government funds without authority of law."

In the first place, the order sought to be reconsidered does not contemplate any ale from which proceeds could be
disposed of by the Secretary "to any person whomsoever". In the second Place, in the issuance of the order sought to be
reconsidered this Office has taken into consideration the Provisions of Wealth Act No. 141 and those of the Civil Code
cited by movant Santolan with in go me respect to the forfeiture ' favor of the government of the improvements found
in the areas covered by rejected applications. However, this Office is also fully aware of that cardinal principle that 'no
man shall enrich himself at the expense of another.

During the reinvestigation of this case by a representative of this Office, it was found that Lusin was the, actual occupant
of the disputed area since 1951. During his occupation, Lusin was introduced considerable improvements in the area,
investing his life savings therein. At the time of inspection, approximately two (2) hectares of the said area was a
veritable and complete with dikes and water breakers, and the remaining portion was surrounded with bamboo stakes.
While this Office of Lusin's occupation as having effected by force, this Office also believes that such force was employed
by Lusin only to enforce what he believed was his right over the property in question. This being the case, justice and
equity demands that Lusin should be compensated of the improvements introduced by him in the area in question by
whomsoever shall enjoy the fruits of his (Lusin's) toil. Julian Santolan, being the person who shall benefit from said
improvements, it is only fair and just that he should reimburse Lusin of the value of said improvements, especially
considering that the said area adjudicated to Santolan is already a producing fishpond.

Antonio Lusin, on the other hand, contends that the order sought to be reconsidered is contrary to the facts of the case
and to the law applicable thereto.

Lusin assigns the following errors as having been allegedly committed by this Office:

(1) In holding that the possession of Lusin dated only as Of 195 1;

(2) In holding that the ion of Lusin was effected through force;

(3) In holding that Section 32 of Lands Administrative Order No. 7-1 is applicable in the instant case;

(4) In not holding that the preferential rights of Julian Santolan, granting that he has any, has already prescribed; and
(5) In giving due course to the foreshore lease application of Santolan for the entire area in question.

With respect to the first two assignments of errors, a review of the records of this case shows that the findings of this
Office are in accordance with the facts of the case as deduced from the reinvestigation Of this conflict, and as supported
by previous records of this case. This Office, therefore, finds no sufficient ground to disturb its findings of facts.

Anent the next two assignments of errors, which are mere reiteration of movant's allegation in his previous
memorandum, and which were thoroughly passed upon by this Office, it is believed that discussing them further is no
longer necessary since after another close examination of the case, this Office finds its disposition in this particular
respect well justified and in accordance with the law and regulations applicable thereto.

Now coming to the last allegation, Lusin contends that the foreshore lease application of Julian Santolan, if given the
course, should not cover the entire area in question. Movant Lusin advances the theory that since the reason behind the
law in granting preferential rights to reparian owners is to compensate for whatever loss said riparian owner may suffer
from the actions of the water, said riparian owner cannot stand to lose more than what he owns, and therefore, since
Santolan's property, which adjoins the area in question, is only two (2) hectares, Santolan can never lose more than two
hectares.

Section 32 of Lands Administrative Order No. 7-1, the particular Point of law involved provides as follows:

32. Preference of Riparian Owner.— The owner of the property adjoining foreshore lands, marshy lands, or lands
covered with water bordering upon the shores or banks of navigable lakes or rivers, shall be given preference to apply
for such lands, adjoining his property as may not be needed for the public service, subject to the laws and regulations
governing lands of this nature, provided that he applied therefor within sixty (60) days from the date he receives a
communication from the Director of Lands advising him of his preferential right.

The above-quoted provision of the Lands Administrative Order does not impose any restriction or limitation with respect
to the extent of the area to which a riparian owner is preferred as long as said area is not needed for public service. The
said order, being clear on this point, this Office has no other alternative but to interpret said regulation in the meaning it
clearly conveys.

IN VIEW OF ALL THE FOREGOING CONSIDERATIONS, the instant motion for reconsideration filed respectively by the
conflicting parties herein, should be, as hereby they are, denied.

SO ORDERED.

Manila, Philippines, May 19, 1955.

By authority of the Secretary:

JAIME N. FERRER
Undersecretary of Agriculture
and Natural Resources

ANNEX G

4th Indorsemen

Manila, April 10, 1958

Respectfully returned to the Secretary of Agriculture and Natural Resources, Manila.

This is with reference to the appeal by Antonio Lusin from the order of that Department in DANR Case No. 625 (Julian
Santolan vs. Antonio Lusin) dated May 19. 1955, whereby his motion for reconsideration of the order of that office of
December 14, 1954, rejecting his foreshore lease application for the disputed land but awarding to him the right of
reimbursement for the improvements he had introduced thereon and giving due course to appellee's application
therefor, was denied.

The land in question is a foreshore land of about 4-1/2 hectares located along Bacoor Bay in barrio Kaingin, Kawit,
Cavite. A preferential right to lease it is claimed by the appellant on the ground that he has been in the continuous and
exclusive possession thereof since 1920. when said land was still under water and used as a site of his fish corals. On the
other hand, it is alleged by the appellee that the disputed lot is an extension of his property into the sea, as he is the
owner of Lot No. 986 which, according to its technical description, borders Bacoor Bay on the North; that the present
foreshore land was formed by soil deposits brought by the action of the sea; and that he has the right of preference to
apply for the land in question in accordance with Section 32 of Lands Administrative Order No. 7-1.

Upon the foregoing facts, the Director of Lands in an order dated February 1, 1951, rejected the appellant's foreshore
lease application and forfeited the improvements he had introduced thereon in favor of the appellee. From this order,
Lusin appealed to the Secretary of Agriculture and Natural Resources after his three motions for reconsideration had
been denied. On October 13, 1952, the Secretary dismiss his appeal. Thereafter, the appellant moved for a
reconsideration of the Secretary's decision but his motion was denied on February 28, 1953. He then filed another
motion requesting a formal reinvestigation of the case. The motion was granted and that Department ordered a
reinvestigation of the case on May 12, 1953.

In the reinvestigation of the case, the following facts were established: That Lusin had converted two (2) hectares of the
area in dispute into a veritable fishpond; and that the entire area in question was enclosed with dikes and provided with
two (2) sluice gates, one of which was made of concrete and the other of lumber; that on the northern part of the
disputed land bordering Bacoor Bay were bamboo poles placed at close intervals serving as water breakers to protect
the mud dikes from being washed away by the action of the sea; that all of these improvements were introduced by
Lusin in 1951 up to the time of the reinvestigation; that the disputed land was, as it still is. bounded on the South by Lot
No. 986 of Julian Santolan; that said land was formed by soil deposits brought by the action of the sea; that in December
1942, Santulan caused the survey of the land, and the survey plan was approved by the Director of Lands in 1944; that
on December 29, 1942, Santulan filed a foreshore lease application covering an area of 36,120 square meters of the land
in dispute; that the filing of Santolan's foreshore lease application resulted in the investigation of the case in March
1943, involving the parties herein. and that said investigation was not finally terminated for unknown reasons.

After receiving and considering the report of the reinvestigation, that office on December 14, 1954, issued an order
modifying its previous stand by giving the appellant the right to reimbursement for the improvements he had introduced
on the disputed lot, the dispositive part of which reads:

Wherefore, the above noted foreshore lease (New) application and revocable permit (New) application of Antonio Lusin
should remain, as hereby it is, REJECTED; and Foreshore Lease application No. V-62 of Julian Santulan given due course,
PROVIDED, he reimburse Antonio Lusin of the appraised value of the improvements now existing in the area within sixty
(60) days after notification of said appraisal.

xxx xxx xxx

In the event that Julian Santulan fails to reimburse Antonio Lusin of the appraised value of the said improvements within
the period specified in this order, he shall lose his preferential rights over the area and Antonio Lusin will be allowed to
file an appropriate public land application therefor.

The appellant moved for a reconsideration of the foregoing order but his motion was denied on May 19, 1955.
Dissatisfied, he appealed to this Office, averring that the Department erred in finding the following: That the possession
of Antonio Lusin of the land in question began only in 195 1; that since 1942, Julian Santulan had been exercising
dominion over the property in question; that the area in question is apparently an extension of lot No. 986 into the sea
and that its present existence was the result of the continuous recession of the sea; that the possession of Antonio Lusin
over the property in question was effected through force; that Section 32, Lands Administrative Order No. 7-1, is
applicable to the instant case; and that the preferential rights of Julian Santolan, granting he has any, has not prescribed.
He contends further that the Department erred in rejecting his foreshore lease application and in giving due course to
that of the appellee.

The main issue presented by the parties to be resolved in this controversy is, which of them has a better right to lease
the foreshore land under consideration? For a clear resolution of the question, it is necessary to look into the legal
provisions governing the administration and disposition of foreshore lands. As correctly held by that Department and
the Bureau of Lands, the administration and disposition of foreshore lands are governed by Chapter IX, Title III of
Commonwealth Act No. 141, (Secs. 58 and 59), otherwise known as the Public Land Act.

Section 61 of said law provides that foreshore lands shall be disposed of to private parties by lease only and not
otherwise, as soon as the President, upon recommendation by the Secretary of Agriculture and Natural Resources, shall
declare that the same are not necessary for the public service and are open to disposition, The procedure for the award
of a lease of foreshore land is found in Section 67 of the same law which provides, as a general rule, that the award of
the right to lease a foreshore land shall be determined by oral bidding, except where improvements were introduced
thereon by reason of a permit issued by competent authority, in which case the award thereof shall be determined by
sealed bidding pursuant to the provisions of section 26, whereby the permittee is granted the right to equal the highest
bidder.

Noteworthy is the fact that both parties herein claim to have been in prior possession of the land in controversy than
the other. Not one of them, however, was granted a permit by competent authority to occupy and use the land and
introduce improvements thereon. Since not one of them was granted such a permit, the fact that one or the other had
been in prior possession of the premises in question is immaterial, as will be seen hereafter, in the determination of the
instant controversy. Neither is the alleged finding that one of the parties herein entered the premises and introduced
improvements thereon in bad faith material to the resolution of the case.

It is likewise significant to note that while the Bureau held that none of the parties herein was entitled to a preferential
right to lease the land in question "on the basis alone of Actual occupancy or introduction of improvements," it ruled
that the appellee, Julian Santolan, by reason of the fact that he was, as he still is, a riparian owner of the disputed area,
had a preferential right to apply for a lease therefor, citing Section 32 of Lands Administrative Order No. 7-1, which
reads:

Sec. 32. The owner of the property adjoining foreshore lands, marshy lands, or lands covered with water bordering upon
the shores or banks of navigable lakes or rivers, shall be given preference to apply for such lands adjoining his property
as may not be needed for the public service, subject to the laws and regulations governing lands of this nature, provided
that he applies therefor within 60 days from the date he receives a communication from the Director of Lands advising
him of his preferential right.

In this appeal, the appellant reiterates his contention before that Department that the foregoing is not applicable to the
instant case "because the property in question borders upon the shores or banks of the Manila Bay and not upon
navigable lakes or rivers." The fallacy of the argument is too obvious to require any discussion since the provision
expressly speaks of foreshore lands. At any rate, this Office finds that Section 32 of Lands Administrative Order No. 7-1
has been rendered obsolete by Commonwealth Act No. 141.

Lands Administrative Order No. 7-1, dated April 30, 1936, but made effective on January 1, 1936, was promulgated
before. the passage of Commonwealth Act No. 141. Its provisions which have not been altered, modified or amended,
particularly Section 32 thereof, were promulgated pursuant to the existing public land law at the time of its
promulgation, namely, Act No. 2874. A perusal of Section 32 of Lands Administrative Order No. 7-1 will show that while
it speaks of a preferential right to apply for a foreshore land, it does not specify the mode of application, i.e., whether by
sale, lease, homestead, permit, etc., contemplated by it. Nevertheless it is clear under Act No. 2874 that a foreshore
land may be the subject only of a lease (Sec. 58), or of a revocable permit to occupy and use it (Sec. 65). Seemingly
therefore Section 32 of Lands Administrative Order No. 7-1 contemplates an application for a lease of foreshore land or
a revocable permit to use or occupy it. However, Section I of said order provides, among other things, the following:

... Those rules and regulations shall not apply to applications for temporary occupation or provisional use of Said lands
and property which shall be governed by the provisions of Section 1844 of the Administrative Code, as amended, by Acts
Nos. 3077 and 3852, Lands Administrative Order No. 8 and other regulations promulgated thereunder.

Since Lands Administrative Order No. 7-1 expressly exempts from its operation temporary permits for the use and
occupation of public lands, the conclusion is inescapable that Section 32 thereof contemplates an application for a lease
under Section 58 of Act No. 2874 only and does not include a revocable permit application under Section 65 of said Act.

The procedure for the award of the right to lease a foreshore land under Act No. 2874 is found in Section 64 thereof,
which reads:

Sec. 64. The lease or sale shall be adjudicated to the highest bidder; and if there is no bidder besides the applicant, it
shall be adjudicated to him. The provisions of Section twenty-seven of this Act shall be applied wherever applicable.

Section 67 of Commonwealth Act No. 141, repealing the foregoing provisions, provides:
Sec. 67. The lease or sale shall be made through oral bidding; and adjudication shall be made to the highest bidder.
However, where an has made improvements on the land by virtue of a permit issued to him by competent authority, the
sale or lease shall be made by sealed bidding as prescribed in section twenty-six of this Act, "the provisions of which
shall he applied wherever applicable. x x" (Italics supplied).

While Section 64 of Act No. 2874 makes a reference to Section 27 of the same Act, Section 67 of Commonwealth Act No.
141 also Makes a reference to Section 26 of the latter law, Section 26 of Commonwealth Act No. 141 is practically a
reproduction of Section 27 of Act No. 2874 and prescribes the manner or procedure of determining an award through
sealed bidding in the sale of a public land. Under its provision, an applicant is given the option or right to equal the
highest bidder.

Section 67 of Commonwealth Act No. 141 differs, however, from Section 64 of Act No. 2874 in that while the latter
provides that "section twenty- seven of this Act shall be applied wherever applicable," making sealed bidding the
general rule of procedure in determining an award of a lease of foreshore land, the former Provides the contrary, as
under its provisions sealed bidding is not the general rule of procedure in the determination of lease awards of
foreshore lands but may be resorted to only when the conditions specified therein are present.

Since Section 64 of Act No. 2874 provides that Section 27 thereof should be applied wherever applicable in determining
an award of a lease of foreshore land, the mere fact that the land is covered by a lease application therefor warrants the
holding of a sealed bidding for its disposition, whereby the applicant therefor should be granted the option or right to
equal the highest bid. In such a legal set-up, the question of preference in the right to apply for a lease of foreshore land
became a necessary consequence, as one need only apply to be entitled to the right to equal the highest bid hence, the
applicability of Section 32 of Lands Administrative Order No. 7-1.

On the other hand, under Section 67 of Commonwealth Act No. 141, a foreshore land may be leased, as a general rule,
by oral bidding only. In such a case, the award of the foreshore lease shall always be made to the highest bidder,
notwithstanding the fact that one among the bidders is an applicant, as no one in an oral bidding is entitled to equal the
highest bid, unlike in the case of a sealed bidding either under Section 27 of Act No. 2874 or under Section 26 of
Commonwealth Act No. 141. Since the award of a foreshore lease shall be given to the highest bidder in an oral bidding,
the necessity of determining who among several interested parties has a preferential right to apply for the land has been
obviated under the present law, because the mere fact that one is an applicant does not entitle him to equal the highest
bid, rendering the provisions of Section 32 of Lands Administrative Order No. 7-1 Idle and useless.

Parenthetically, it may be stated that the appellee brought to the attention of this Office its previous decision in DANR
Case No. 694 (Del Rosario vs. Monzon), where the facts involved therein are more or less similar to those in the present
controversy. While this Office in that case relied on Section 32 of Lands Administrative Order No. 7-1 in resolving the
appeal therein, it did not touch on the question of whether or not said provision is still enforceable, as the same was not
squarely placed in issue. For this reason, the ruling in that case can not be availed of as a precedent in the adjudication
of the one under consideration.

In the instant case the parties are vying for the preferential right to apply for a lease of the disputed land, as if by the
mere fact of application the land should be disposed of by scaled bidding, whereby the recognized applicant therefor
should be given the right accorded to applicants under Section 26 of Commonwealth Act No. 141. The only instance
under Section 67 of Commonwealth Act No. 141 when a foreshore land may be leased through sealed bidding is when
the conditions specified therein — namely, a that improvements had been introduced on the land and (b) that said
improvements were introduced thereon by reason of a permit issued by competent authority — are present, in which
case the permittee shall be granted the right to equal the highest bid. In the absence of these conditions, the land
should be leased through oral bidding only and, as stated earlier. the question of preference in the right to apply
therefor is immaterial.

As the conditions specified in Section 67 of Commonwealth Act No. 141 are not present in the instant case, the land in
question can be leased only through oral bidding, if it can be disposed of under the provisions of Section 61 of said Act,
which requires as a condition sine qua non in the lease of foreshore lands that the same have been declared by the
President not necessary for the public service and are open for disposition. Without such a declaration, a foreshore land
may only be occupied and used by private persons for lawful purposes upon the issuance of a revocable permit therefor
under Section 68 of Commonwealth Act No. 141. Since the record is silent as to whether or not the land under
consideration has been so declared, this Office is constrained to render two alternative resolutions of the instant case.
On the assumption that the land in question has been declared open for disposition and is not necessary for the public
service, this Office directs that an oral bidding for the leasing thereof to interested parties pursuant to the provisions of
Section 67 of Commonwealth Act No. 141 be conducted and the contract of lease awarded to the highest bidder.
Whoever shall be the highest bidder, if other than the appellant, shall be required to pay to the appellant the appraised
value of the improvements introduced by him on the land to be determined by that Department.

If the land in question has not been so declared, this Office directs that a revocable permit under Section 68 of
Commonwealth Act No. 141 be issued to the appellant requiring him to pay permit fees since the year 1951.

Accordingly, the orders and decisions of that Department and the Bureau of Lands are hereby revoked. The record of the
case is returned herewith.

By authority of the President:

(SGD) JUAN C. PAJO

Executive Secretary

ANNEX H

5th Indorsement

Manila, May 10, 1954

Respectfully returned to the Honorable, the Secretary of Agriculture and Natuaral Resources, Manila.

In his decision of February 4, 1952, the Director ofLands amended the miscellaneous sales application of Emiliano del
Rosario by excluding therefrom portion "B" and adjudicating the same to Gonzalo Monzon under his foreshore lease
application. On appeal by Del Rosario, the decision of the Director of Lands was affirmed by the Secretarty of Agriculture
and Natural Resources on February 6, 1953. Del Rosario now appeals to this office.

The question presented for determination is, whichof theparties has a better right to the area in question?

It appears that the area in dispute, portion "B", is a foreshore land, an extension od portion "a", which lies immediately
adjacent to lot No. 987, private property ofMonzon. The record shows that Monzon and his predecessor in interest have
been in possession od said area since before the war, using it as a site for their oyster and "kapis" beds and for the fish
coral. It was only in 1951 that Del Rosario through stealth occupied a portion of area in question, building earthen dikes
preparatory to converting the land into a fishpond. His entry upon the area was duly protested by Monzon with the
Bureau of Lands and the Bureau of Fisheries, both of wich is advised Del Rosario to vacate the premises and to refrain
from introducing further improvements thereon.

Upon the facts and the circumstances narrated above, and the pursuant to Section 32 of Lands Administrative Order No.
7-1, which gives tot he owner of the property adjoining foreshores lands and the prefrential right to apply therefor
under the provisions of the Public Act, it is evident that Monzon has a better right than Del Rosario tot he area in dispute
which, as stated above, is aforeshore land.

In view of foregoing, the decision appealed from is hereby affirmed.

The record of the case is returned herewith.

G.R. No. L-69870 November 29, 1988

NATIONAL SERVICE CORPORATION (NASECO) AND ARTURO L. PEREZ, petitioners,

vs.
THE HONORABLE THIRD DIVISION, NATIONAL LABOR RELATIONS COMMISSION, MINISTRY OF LABOR AND
EMPLOYMENT, MANILA AND EUGENIA C. CREDO, respondents.

G.R. No. 70295 November 29,1988

EUGENIA C. CREDO, petitioner,
vs.
NATIONAL LABOR RELATIONS COMMISSION, NATIONAL SERVICES CORPORATION AND ARTURO L.
PEREZ, respondents.
The Chief Legal Counsel for respondents NASECO and Arturo L. Perez.

Melchor R. Flores for petitioner Eugenia C. Credo.

PADILLA, J.:

Consolidated special civil actions for certiorari seeking to review the decision * of the Third Division, National Labor
Relations Commission in Case No. 11-4944-83 dated 28 November 1984 and its resolution dated 16 January 1985
denying motions for reconsideration of said decision.

Eugenia C. Credo was an employee of the National Service Corporation (NASECO), a domestic corporation which
provides security guards as well as messengerial, janitorial and other similar manpower services to the Philippine
National Bank (PNB) and its agencies. She was first employed with NASECO as a lady guard on 18 July 1975. Through the
years, she was promoted to Clerk Typist, then Personnel Clerk until she became Chief of Property and Records, on 10
March 1980. 1

Sometime before 7 November 1983, Credo was administratively charged by Sisinio S. Lloren, Manager of Finance and
Special Project and Evaluation Department of NASECO, stemming from her non-compliance with Lloren's memorandum,
dated 11 October 1983, regarding certain entry procedures in the company's Statement of Billings Adjustment. Said
charges alleged that Credo "did not comply with Lloren's instructions to place some corrections/additional remarks in
the Statement of Billings Adjustment; and when [Credo] was called by Lloren to his office to explain further the said
instructions, [Credo] showed resentment and behaved in a scandalous manner by shouting and uttering remarks of
disrespect in the presence of her co-employees." 2

On 7 November 1983, Credo was called to meet Arturo L. Perez, then Acting General Manager of NASECO, to explain her
side before Perez and NASECO's Committee on Personnel Affairs in connection with the administrative charges filed
against her. After said meeting, on the same date, Credo was placed on "Forced Leave" status for 1 5 days, effective 8
November 1983. 3

Before the expiration of said 15-day leave, or on 18 November 1983, Credo filed a complaint, docketed as Case No.
114944-83, with the Arbitration Branch, National Capital Region, Ministry of Labor and Employment, Manila, against
NASECO for placing her on forced leave, without due process. 4

Likewise, while Credo was on forced leave, or on 22 November 1983, NASECO's Committee on Personnel Affairs
deliberated and evaluated a number of past acts of misconduct or infractions attributed to her. 5 As a result of this
deliberation, said committee resolved:

1. That, respondent [Credo] committed the following offenses in the Code of Discipline, viz:

OFFENSE vs. Company Interest & Policies

No. 3 — Any discourteous act to customer, officer and employee of client company or officer of the Corporation.

OFFENSE vs. Public Moral

No. 7 — Exhibit marked discourtesy in the course of official duties or use of profane or insulting language to any superior
officer.

OFFENSE vs. Authority

No. 3 — Failure to comply with any lawful order or any instructions of a superior officer.

2. That, Management has already given due consideration to respondent's [Credo] scandalous actuations for several
times in the past. Records also show that she was reprimanded for some offense and did not question it. Management
at this juncture, has already met its maximum tolerance point so it has decided to put an end to respondent's [Credo]
being an undesirable employee. 6

The committee recommended Credo's termination, with forfeiture of benefits. 7

On 1 December 1983, Credo was called age to the office of Perez to be informed that she was being charged with certain
offenses. Notably, these offenses were those which NASECO's Committee on Personnel Affairs already resolved, on 22
November 1983 to have been committed by Credo.

In Perez's office, and in the presence of NASECO's Committee on Personnel Affairs, Credo was made to explain her side
in connection with the charges filed against her; however, due to her failure to do so, 8 she was handed a Notice of
Termination, dated 24 November 1983, and made effective 1 December 1983. 9 Hence, on 6 December 1983, Credo filed
a supplemental complaint for illegal dismissal in Case No. 11-4944-83, alleging absence of just or authorized cause for
her dismissal and lack of opportunity to be heard. 10

After both parties had submitted their respective position papers, affidavits and other documentary evidence in support
of their claims and defenses, on 9 May 1984, the labor arbiter rendered a decision: 1) dismissing Credo's complaint, and
2) directing NASECO to pay Credo separation pay equivalent to one half month's pay for every year of service. 11

Both parties appealed to respondent National Labor Relations Commission (NLRC) which, on 28 November 1984,
rendered a decision: 1) directing NASECO to reinstate Credo to her former position, or substantially equivalent position,
with six (6) months' backwages and without loss of seniority rights and other privileges appertaining thereto, and 2)
dismissing Credo's claim for attorney's fees, moral and exemplary damages. As a consequence, both parties filed their
respective motions for reconsideration, 12 which the NLRC denied in a resolution of 16 January 1985. 13

Hence, the present recourse by both parties. In G.R. No. 68970, petitioners challenge as grave abuse of discretion the
dispositive portion of the 28 November 1984 decision which ordered Credo's reinstatement with
backwages. 14 Petitioners contend that in arriving at said questioned order, the NLRC acted with grave abuse of
discretion in finding that: 1) petitioners violated the requirements mandated by law on termination, 2) petitioners failed
in the burden of proving that the termination of Credo was for a valid or authorized cause, 3) the alleged infractions
committed by Credo were not proven or, even if proved, could be considered to have been condoned by petitioners, and
4) the termination of Credo was not for a valid or authorized cause. 15

On the other hand, in G.R. No. 70295, petitioner Credo challenges as grave abuse of discretion the dispositive portion of
the 28 November 1984 decision which dismissed her claim for attorney's fees, moral and exemplary damages and
limited her right to backwages to only six (6) months. 16

As guidelines for employers in the exercise of their power to dismiss employees for just causes, the law provides that:

Section 2. Notice of dismissal. — Any employer who seeks to dismiss a worker shall furnish him a written notice stating
the particular acts or omission constituting the grounds for his dismissal.

xxx xxx xxx

Section 5. Answer and Hearing. — The worker may answer the allegations stated against him in the notice of dismissal
within a reasonable period from receipt of such notice. The employer shall afford the worker ample opportunity to be
heard and to defend himself with the assistance of his representative, if he so desires.

Section 6. Decision to dismiss. — The employer shall immediately notify a worker in writing of a decision to dismiss him
stating clearly the reasons therefor. 17

These guidelines mandate that the employer furnish an employee sought to be dismissed two (2) written notices of
dismissal before a termination of employment can be legally effected. These are the notice which apprises the employee
of the particular acts or omissions for which his dismissal is sought and the subsequent notice which informs the
employee of the employer's decision to dismiss him.

Likewise, a reading of the guidelines in consonance with the express provisions of law on protection to labor 18 (which
encompasses the right to security of tenure) and the broader dictates of procedural due process necessarily mandate
that notice of the employer's decision to dismiss an employee, with reasons therefor, can only be issued after the
employer has afforded the employee concerned ample opportunity to be heard and to defend himself.

In the case at bar, NASECO did not comply with these guidelines in effecting Credo's dismissal. Although she was
apprised and "given the chance to explain her side" of the charges filed against her, this chance was given so
perfunctorily, thus rendering illusory Credo's right to security of tenure. That Credo was not given ample opportunity to
be heard and to defend herself is evident from the fact that the compliance with the injunction to apprise her of the
charges filed against her and to afford her a chance to prepare for her defense was dispensed in only a day. This is not
effective compliance with the legal requirements aforementioned.

The fact also that the Notice of Termination of Credo's employment (or the decision to dismiss her) was dated 24
November 1983 and made effective 1 December 1983 shows that NASECO was already bent on terminating her services
when she was informed on 1 December 1983 of the charges against her, and that any hearing which NASECO thought of
affording her after 24 November 1983 would merely be pro forma or an exercise in futility.

Besides, Credo's mere non-compliance with Lorens memorandum regarding the entry procedures in the company's
Statement of Billings Adjustment did not warrant the severe penalty of dismissal of the NLRC correctly held that:

... on the charge of gross discourtesy, the CPA found in its Report, dated 22 November 1983 that, "In the process of her
testimony/explanations she again exhibited a conduct unbecoming in front of NASECO Officers and argued to Mr. S. S.
Lloren in a sarcastic and discourteous manner, notwithstanding, the fact that she was inside the office of the Acctg.
General Manager." Let it be noted, however, that the Report did not even describe how the so called "conduct
unbecoming" or "discourteous manner" was done by complainant. Anent the "sarcastic" argument of complainant, the
purported transcript 19 of the meeting held on 7 November 1983 does not indicate any sarcasm on the part of
complainant. At the most, complainant may have sounded insistent or emphatic about her work being more complete
than the work of Ms. de Castro, yet, the complaining officer signed the work of Ms. de Castro and did not sign hers.

As to the charge of insubordination, it may be conceded, albeit unclear, that complainant failed to place same
corrections/additional remarks in the Statement of Billings Adjustments as instructed. However, under the
circumstances obtaining, where complainant strongly felt that she was being discriminated against by her superior in
relation to other employees, we are of the considered view and so hold, that a reprimand would have sufficed for the
infraction, but certainly not termination from services. 20

As this Court has ruled:

... where a penalty less punitive would suffice, whatever missteps may be committed by labor ought not to be visited
with a consequence so severe. It is not only because of the law's concern for the working man. There is, in addition, his
family to consider. Unemployment brings untold hardships and sorrows on those dependent on the wage-earner. 21

Of course, in justifying Credo's termination of employment, NASECO claims as additional lawful causes for dismissal
Credo's previous and repeated acts of insubordination, discourtesy and sarcasm towards her superior officers, alleged to
have been committed from 1980 to July 1983. 22

If such acts of misconduct were indeed committed by Credo, they are deemed to have been condoned by NASECO. For
instance, sometime in 1980, when Credo allegedly "reacted in a scandalous manner and raised her voice" in a discussion
with NASECO's Acting head of the Personnel Administration 23 no disciplinary measure was taken or meted against her.
Nor was she even reprimanded when she allegedly talked 'in a shouting or yelling manner" with the Acting Manager of
NASECO's Building Maintenance and Services Department in 1980 24 or when she allegedly "shouted" at NASECO's
Corporate Auditor "in front of his subordinates displaying arrogance and unruly behavior" in 1980, or when she allegedly
shouted at NASECO's Internal Control Consultant in 1981. 25 But then, in sharp contrast to NASECO's penchant for
ignoring the aforesaid acts of misconduct, when Credo committed frequent tardiness in August and September 1983,
she was reprimanded. 26

Even if the allegations of improper conduct (discourtesy to superiors) were satisfactorily proven, NASECO's condonation
thereof is gleaned from the fact that on 4 October 1983, Credo was given a salary adjustment for having performed in
the job "at least [satisfactorily]" 27 and she was then rated "Very Satisfactory" 28as regards job performance, particularly
in terms of quality of work, quantity of work, dependability, cooperation, resourcefulness and attendance.

Considering that the acts or omissions for which Credo's employment was sought to be legally terminated were
insufficiently proved, as to justify dismissal, reinstatement is proper. For "absent the reason which gave rise to [the
employee's] separation from employment, there is no intention on the part of the employer to dismiss the employee
concerned." 29 And, as a result of having been wrongfully dismissed, Credo is entitled to three (3) years of backwages
without deduction and qualification. 30

However, while Credo's dismissal was effected without procedural fairness, an award of exemplary damages in her favor
can only be justified if her dismissal was effected in a wanton, fraudulent, oppressive or malevolent manner. 31 A
judicious examination of the record manifests no such conduct on the part of management. However, in view of the
attendant circumstances in the case, i.e., lack of due process in effecting her dismissal, it is reasonable to award her
moral damages. And, for having been compelled to litigate because of the unlawful actuations of NASECO, a reasonable
award for attorney's fees in her favor is in order.

In NASECO's comment 32 in G.R. No. 70295, it is belatedly argued that the NLRC has no jurisdiction to order Credo's
reinstatement. NASECO claims that, as a government corporation (by virtue of its being a subsidiary of the National
Investment and Development Corporation (NIDC), a subsidiary wholly owned by the Philippine National Bank (PNB),
which in turn is a government owned corporation), the terms and conditions of employment of its employees are
governed by the Civil Service Law, rules and regulations. In support of this argument, NASECO cites National Housing
Corporation vs. JUCO, 33 where this Court held that "There should no longer be any question at this time that employees
of government-owned or controlled corporations are governed by the civil service law and civil service rifles and
regulations."

It would appear that, in the interest of justice, the holding in said case should not be given retroactive effect, that is, to
cases that arose before its promulgation on 17 January 1985. To do otherwise would be oppressive to Credo and other
employees similarly situated, because under the same 1973 Constitution ,but prior to the ruling in National Housing
Corporation vs. Juco, this Court had recognized the applicability of the Labor Code to, and the authority of the NLRC to
exercise jurisdiction over, disputes involving terms and conditions of employment in government owned or controlled
corporations, among them, the National Service Corporation (NASECO).<äre||anº•1àw>  34

Furthermore, in the matter of coverage by the civil service of government-owned or controlled corporations, the 1987
Constitution starkly varies from the 1973 Constitution, upon which National Housing Corporation vs. Juco  is based.
Under the 1973 Constitution, it was provided that:

The civil service embraces every branch, agency, subdivision, and instrumentality of the Government, including every
government-owned or controlled corporation. ... 35

On the other hand, the 1987 Constitution provides that:

The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including
government-owned or controlled corporations with original charter. 36 (Emphasis supplied)

Thus, the situations sought to be avoided by the 1973 Constitution and expressed by the Court in the National Housing .
Corporation case in the following manner —

The infirmity of the respondents' position lies in its permitting a circumvention or emasculation of Section 1, Article XII-B
of the constitution. It would be possible for a regular ministry of government to create a host of subsidiary corporations
under the Corporation Code funded by a willing legislature. A government-owned corporation could create several
subsidiary corporations. These subsidiary corporations would enjoy the best of two worlds. Their officials and employees
would be privileged individuals, free from the strict accountability required by the Civil Service Decree and the
regulations of the Commission on Audit. Their incomes would not be subject to the competitive restrains of the open
market nor to the terms and conditions of civil service employment. Conceivably, all government-owned or controlled
corporations could be created, no longer by special charters, but through incorporations under the general law. The
Constitutional amendment including such corporations in the embrace of the civil service would cease to have
application. Certainly, such a situation cannot be allowed to exist. 37

appear relegated to relative insignificance by the 1987 Constitutional provision that the Civil Service embraces
government-owned or controlled corporations with original charter; and, therefore, by clear implication, the Civil
Service does not include government-owned or controlled corporations which are organized as subsidiaries of
government-owned or controlled corporations under the general corporation law.

The proceedings in the 1986 Constitutional Commission also shed light on the Constitutional intent and meaning in the
use of the phrase "with original charter." Thus

THE PRESIDING OFFICER (Mr. Trenas) Commissioner Romulo is recognized.

MR. ROMULO. I beg the indulgence of the Committee. I was reading the wrong provision.

I refer to Section 1, subparagraph I which reads:

The Civil Service embraces all branches, subdivisions, instrumentalities, and agencies of the government, including
government-owned or controlled corporations.

My query: Is Philippine Airlines covered by this provision? MR. FOZ. Will the Commissioner please state his previous
question?

MR. ROMULO. The phrase on line 4 of Section 1, subparagraph 1, under the Civil Service Commission, says: "including
government-owned or controlled corporations.' Does that include a corporation, like the Philippine Airlines which is
government-owned or controlled?

MR. FOZ. I would like to throw a question to the Commissioner. Is the Philippine Airlines controlled by the government
in the sense that the majority of stocks are owned by the government?

MR. ROMULO. It is owned by the GSIS. So, this is what we might call a tertiary corporation. The GSIS is owned by the
government. Would this be covered because the provision says "including government-owned or controlled
corporations."

MR. FOZ. The Philippine Airlines was established as a private corporation. Later on, the government, through the GSIS,
acquired the controlling stocks. Is that not the correct situation?

MR. ROMULO. That is true as Commissioner Ople is about to explain. There was apparently a Supreme Court decision
that destroyed that distinction between a government-owned corporation created under the Corporation Law and a
government-owned corporation created by its own charter.

MR. FOZ. Yes, we recall the Supreme Court decision in the case of NHA vs. Juco to the effect that all government
corporations irrespective of the manner of creation, whether by special charter or by the private Corporation Law, are
deemed to be covered by the civil service because of the wide-embracing definition made in this section of the existing
1973 Constitution. But we recall the response to the question of Commissioner Ople that our intendment in this
provision is just to give a general description of the civil service. We are not here to make any declaration as to whether
employees of government-owned or controlled corporations are barred from the operation of laws, such as the Labor
Code of the Philippines.

MR. ROMULO. Yes.

MR. OPLE. May I be recognized, Mr. Presiding Officer, since my name has been mentioned by both sides.

MR. ROMULO. I yield part of my time.

THE PRESIDING OFFICER (Mr.Trenas). Commissioner Ople is recognized.

MR. OPLE. In connection with the coverage of the Civil Service Law in Section 1 (1), may I volunteer some information
that may be helpful both to the interpellator and to the Committee. Following the proclamation of martial law on
September 21, 1972, this issue of the coverage of the Labor Code of the Philippines and of the Civil Service Law almost
immediately arose. I am, in particular, referring to the period following the coming into force and effect of the
Constitution of 1973, where the Article on the Civil Service was supposed to take immediate force and effect. In the case
of LUZTEVECO, there was a strike at the time. This was a government-controlled and government-owned corporation. I
think it was owned by the PNOC with just the minuscule private shares left. So, the Secretary of Justice at that time,
Secretary Abad Santos, and myself sat down, and the result of that meeting was an opinion of the Secretary of Justice
which 9 became binding immediately on the government that government corporations with original charters, such as
the GSIS, were covered by the Civil Service Law and corporations spun off from the GSIS, which we called second
generation corporations functioning as private subsidiaries, were covered by the Labor Code. Samples of such second
generation corporations were the Philippine Airlines, the Manila

Hotel and the Hyatt. And that demarcation worked very well. In fact, all of these companies I have mentioned as
examples, except for the Manila Hotel, had collective bargaining agreements. In the Philippine Airlines, there were, in
fact, three collective bargaining agreements; one, for the ground people or the PALIA one, for the flight attendants or
the PASAC and one for the pilots of the ALPAC How then could a corporation like that be covered by the Civil Service
law? But, as the Chairman of the Committee pointed out, the Supreme Court decision in the case of NHA vs. Juco
unrobed the whole thing. Accordingly, the Philippine Airlines, the Manila Hotel and the Hyatt are now considered under
that decision covered by the Civil Service Law. I also recall that in the emergency meeting of the Cabinet convened for
this purpose at the initiative of the Chairman of the Reorganization Commission, Armand Fabella, they agreed to allow
the CBA's to lapse before applying the full force and effect of the Supreme Court decision. So, we were in the awkward
situation when the new government took over. I can agree with Commissioner Romulo when he said that this is a
problem which I am not exactly sure we should address in the deliberations on the Civil Service Law or whether we
should be content with what the Chairman said that Section 1 (1) of the Article on the Civil Service is just a general
description of the coverage of the Civil Service and no more.

Thank you, Mr. Presiding Officer.

MR. ROMULO. Mr. Presiding Officer, for the moment, I would be satisfied if the Committee puts on records that it is not
their intent by this provision and the phrase "including government-owned or controlled corporations" to cover such
companies as the Philippine Airlines.

MR. FOZ. Personally, that is my view. As a matter of fact, when this draft was made, my proposal was really to eliminate,
to drop from the provision, the phrase "including government- owned or controlled corporations."

MR. ROMULO. Would the Committee indicate that is the intent of this provision?

MR. MONSOD. Mr. Presiding Officer, I do not think the Committee can make such a statement in the face of an absolute
exclusion of government-owned or controlled corporations. However, this does not preclude the Civil Service Law to
prescribe different rules and procedures, including emoluments for employees of proprietary corporations, taking into
consideration the nature of their operations. So, it is a general coverage but it does not preclude a distinction of the
rules between the two types of enterprises.

MR. FOZ. In other words, it is something that should be left to the legislature to decide. As I said before, this is just a
general description and we are not making any declaration whatsoever.

MR. MONSOD. Perhaps if Commissioner Romulo would like a definitive understanding of the coverage and the
Gentleman wants to exclude government-owned or controlled corporations like Philippine Airlines, then the recourse is
to offer an amendment as to the coverage, if the Commissioner does not accept the explanation that there could be a
distinction of the rules, including salaries and emoluments.

MR. ROMULO. So as not to delay the proceedings, I will reserve my right to submit such an amendment.

xxx xxx xxx

THE PRESIDING OFFICE (Mr. Trenas) Commissioner Romulo is recognized.

MR. ROMULO. On page 2, line 5, I suggest the following amendment after "corporations": Add a comma (,) and the
phrase EXCEPT THOSE EXERCISING PROPRIETARY FUNCTIONS.

THE PRESIDING OFFICER (Mr. Trenas). What does the Committee say?

SUSPENSION OF SESSION

MR. MONSOD. May we have a suspension of the session?

THE PRESIDING OFFICER (Mr. Trenas). The session is suspended.

It was 7:16 p.m.

RESUMPTION OF SESSION

At 7:21 p.m., the session was resumed.

THE PRESIDING OFFICER (Mr. Trenas). The session is resumed.

Commissioner Romulo is recognized.

MR. ROMULO. Mr. Presiding Officer, I am amending my original proposed amendment to now read as follows: "including
government-owned or controlled corporations WITH ORIGINAL CHARTERS." The purpose of this amendment is to
indicate that government corporations such as the GSIS and SSS, which have original charters, fall within the ambit of
the civil service. However, corporations which are subsidiaries of these chartered agencies such as the Philippine
Airlines, Manila Hotel and Hyatt are excluded from the coverage of the civil service.

THE PRESIDING OFFICER (Mr. Trenas). What does the Committee say?

MR. FOZ. Just one question, Mr. Presiding Officer. By the term "original charters," what exactly do we mean?

MR. ROMULO. We mean that they were created by law, by an act of Congress, or by special law.

MR. FOZ. And not under the general corporation law.

MR. ROMULO. That is correct. Mr. Presiding Officer.

MR. FOZ. With that understanding and clarification, the Committee accepts the amendment.

MR. NATIVIDAD. Mr. Presiding officer, so those created by the general corporation law are out.

MR. ROMULO. That is correct: 38

On the premise that it is the 1987 Constitution that governs the instant case because it is the Constitution in place at the
time of decision thereof, the NLRC has jurisdiction to accord relief to the parties. As an admitted subsidiary of the NIDC,
in turn a subsidiary of the PNB, the NASECO is a government-owned or controlled corporation without original charter.

Dr. Jorge Bocobo, in his Cult of Legalism, cited by Mr. Justice Perfecto in his concurring opinion in Gomez vs. Government
Insurance Board  (L-602, March 31, 1947, 44 O.G. No. 8, pp. 2687, 2694; also published in 78 Phil. 221) on the effectivity
of the principle of social justice embodied in the 1935 Constitution, said:

Certainly, this principle of social justice in our Constitution as generously conceived and so tersely phrased, was not
included in the fundamental law as a mere popular gesture. It was meant to (be) a vital, articulate, compelling principle
of public policy. It should be observed in the interpretation not only of future legislation, but also of all laws already
existing on November 15, 1935. It was intended to change the spirit of our laws, present and future. Thus, all the laws
which on the great historic event when the Commonwealth of the Philippines was born, were susceptible of two
interpretations strict or liberal, against or in favor of social justice, now have to be construed broadly in order to
promote and achieve social justice. This may seem novel to our friends, the advocates of legalism but it is the only way
to give life and significance to the above-quoted principle of the Constitution. If it was not designed to apply to these
existing laws, then it would be necessary to wait for generations until all our codes and all our statutes shall have been
completely charred by removing every provision inimical to social justice, before the policy of social justice can become
really effective. That would be an absurd conclusion. It is more reasonable to hold that this constitutional principle
applies to all legislation in force on November 15, 1935, and all laws thereafter passed.

WHEREFORE, in view of the foregoing, the challenged decision of the NLRC is AFFIRMED with modifications. Petitioners
in G.R. No. 69870, who are the private respondents in G.R. No. 70295, are ordered to: 1) reinstate Eugenia C. Credo to
her former position at the time of her termination, or if such reinstatement is not possible, to place her in a substantially
equivalent position, with three (3) years backwages, from 1 December 1983, without qualification or deduction, and
without loss of seniority rights and other privileges appertaining thereto, and 2) pay Eugenia C. Credo P5,000.00 for
moral damages and P5,000.00 for attorney's fees.

If reinstatement in any event is no longer possible because of supervening events, petitioners in G.R. No. 69870, who are
the private respondents in G.R. No. 70295 are ordered to pay Eugenia C. Credo, in addition to her backwages and
damages as above described, separation pay equivalent to one-half month's salary for every year of service, to be
computed on her monthly salary at the time of her termination on 1 December 1983.

SO ORDERED.

Fernan, C.J., Melencio-Herrera, Paras, Feliciano, Gancayco, Bidin, Sarmiento, Cortes, Griño-Aquino, Medialdea and
Regalado, JJ., concur.

Narvasa, J., is on leave.

Gutierrez, Jr., J., in the result.

 
 

Separate Opinions

CRUZ, J.,  concurring:

While concurring with Mr. Justice Padilla's well-researched ponencia, I have to express once again my disappointment
over still another avoidable ambiguity in the 1987 Constitution.

It is clear now from the debates of the Constitutional Commission that the government-owned or controlled
corporations included in the Civil Service are those with legislative charters. Excluded are its subsidiaries organized
under the Corporation Code.

If that was the intention, the logical thing, I should imagine, would have been to simply say so. This would have avoided
the suggestion that there are corporations with duplicate charters as distinguished from those with original charters.

All charters are original regardless of source unless they are amended. That is the acceptable distinction. Under the
provision, however, the charter is still and always original even if amended as long it was granted by the legislature.

It would have been clearer, I think, to say "including government owned or controlled corporations with legislative
charters." Why this thought did not occur to the Constitutional Commission places one again in needless puzzlement.

Separate Opinions

CRUZ, J.,  concurring:

While concurring with Mr. Justice Padilla's well-researched ponencia, I have to express once again my disappointment
over still another avoidable ambiguity in the 1987 Constitution.

It is clear now from the debates of the Constitutional Commission that the government-owned or controlled
corporations included in the Civil Service are those with legislative charters. Excluded are its subsidiaries organized
under the Corporation Code.

If that was the intention, the logical thing, I should imagine, would have been to simply say so. This would have avoided
the suggestion that there are corporations with duplicate charters as distinguished from those with original charters.

All charters are original regardless of source unless they are amended. That is the acceptable distinction. Under the
provision, however, the charter is still and always original even if amended as long it was granted by the legislature.

It would have been clearer, I think, to say "including government owned or controlled corporations with legislative
charters." Why this thought did not occur to the Constitutional Commission places one again in needless puzzlement.

Footnotes