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G.R. 169834 PDP-Laban G.R. 121246 Integrated Bar of the Phils. (IBP) b. Actual Case or Controversy

FACTS - this is a consolidation of various petitions for certiorari and prohibition challenging 1 the constitutionality of E.O. no. 464 issued Sept. 28, 2005 - Consti Provisions allegedly violated: Art. VI Sec. 1, 21, 22,; Art. III Sec. 4, 7; Art. II Sec. 28; Art. XI Sec 1; Art. XIII Sec. 16 - Between Sept. of 2005 to Feb. 2006, various Senate Investigation Committees issued invitations to various officials of the Executive Dept. including the AFP and PNP for them to appear in public hearings on inquiries concerning mainly: (A) The alleged overpricing in the NorthRail Project (B) the Wire-Tapping activity (C) the Fertilizer scam (D) the Venable contract - The respective officials of the Executive Dept. filed requests for postponement of hearings for varying reasons such as existence of urgent operational matters, more time to prepare a more comprehensive report, etc. Sen. Drilon, however, did not accede to their requests because the requests were sent belatedly and that preparations and arrangements have already been completed. - On Sept. 28, 2005, Pres. Arroyo issued E.O. 464 which took effect immediately. Citing E.O. 464, the Executive Dept. officials subject to Senate investigations claimed that they were not allowed to appear before any Senate or Congressional hearings without consent (written approval) from the President, which had not been granted unto them; their inability to attend due to lack of appropriate clearance from the Pres. pursuant to E.O. 464. Thereafter, several cases were filed challenging E.O. 464 and praying for the issuance of a TRO enjoining respondents from implementing, enforcing, and observing the assailed order. Respondent Executive Secretary Ermita et al., prayed for dismissal of petitions for lack of merit.

3. WON E.O. 464 violates the right of the people to information on matters of public concern. 4. WON respondents have committed grave abuse of discretion when they implemented E.O. 464 prior to its publication in a newspaper of general circulation.

HELD Primary Issue 1. Ratio It is impermissible to allow the executive branch to withhold information sought by the Congress in aid of legislation, without it asserting a right to do so, and without stating reasons therefor. - Although the executive Dept. enjoys the power of executive privilege, Congress nonetheless has the right to know why the executive dept. considers requested information privileged. E.O. 464 allows the executive branch to evade congressional requests for information without the need of clearly asserting a right to do so and/or proffering its reasons therefor. By mere expedient of invoking provisions of E.O. 464, the power of Congress is frustrated. Resort to any means by which officials of the executive branch could refuse to divulge information cannot be presumed to be valid. Reasoning Executive Privilege -The power of the President and other high-level executive branch officers to withhold certain types of information of a sensitive character from Congress, the courts and the public. - The Power of Inquiry (in aid of legislation) Art. VI Sec.21

ISSUES Primary Issue 1. WON E.O. 464 contravenes the power of inquiry vested in the Congress Secondary Issues 2. Justiciability of the case: a. Legal standing of petitioners: G.R. 169777 Senate of the Phils. G.R. 169659 BAYANMUNA, COURAGE, CODAL G.R. 169660 Francisco Chavez G.R. 169667 Alternative Law Groups (ALG)
E.O. 464 Ensuring observance of the principle of separation of powers, adherence to the rule on executive privilege and respect for the rights of public officials appearing in legislative inquiries in aid of legislation under the Constitution, and for other purposes.

This is the power of the Legislature to make investigations and exact testimony that it may exercise its legislative functions advisedly and effectively. It gives the Congress the power to compel the appearance of executive officials to comply with its demands for information. - Inquiry in Art. VI Sec. 22 (question hour) As determined from the deliberations of the Constitutional Commission, this provision was intended to be distinguished from inquiries in aid of legislation, in that attendance here is merely discretionary on the part of the department heads. - Sec. 1 of E.O. 464 Its requirement to secure presidential consent, limited only to executive dept. heads and to appearances in the question hour (because of its specific reference to sec. 22 of art VI) makes it valid on its face. - Sec. 2 (a) of E.O. 464

It merely provides guidelines binding only on the heads of office mentioned in section 2(b), on what is covered by the executive privilege. It does not purport to be conclusive on the other branches of government. It may be construed as a mere expression of opinion by the Pres. regarding the nature and scope of executive privilege. - Sec. 2 (b) of E.O. 464 Provides that once the head of office determines that a certain info. is privileged, such determination is presumed to bear the Presidents authority and has the effect of prohibiting the official from appearing before Congress, only to the express pronouncement of the Pres. that it is allowing the appearance of such official. It allows the Pres. to authorize claims of privilege by mere silence, and such presumptive authorization is contrary to the exceptional nature of the privilege. Due to the fact that executive privilege is of extraordinary power, the Pres. may not authorize its subordinates to exercise it. Such power must be wielded only by the highest official in the executive hierarchy. - Sec. 3 of E.O. 464 Requires all public officials enumerated in section 2(b) to secure the consent of the President prior to appearing before either house of Congress. The enumeration is broad. It is invalid per se. In so far as it does not assert but merely implies the claim of executive privilege. It does not provide precise and certain reasons for the claim. Mere invocation of E.O. 464 coupled with an announcement that the President has not given her consent, is woefully insufficient for Congress to determine whether the withholding of information is justified under the circumstances of each case, severely frustrating its power of inquiry.

Party List (BayanMuna, COURAGE, CODAL) - The party-list representatives have standing, it is sufficient that a claim is made that E.O. 464 infringes on their constitutional rights and duties as members of Congress to conduct investigations in aid of legislation and conduct oversight functions in the implementation of laws. IBP, Chavez, ALG (invoking right to info. on matters of public concern) - When suing as a citizen, the interest of the petitioner in assailing the constitutionality of laws must be direct and personal. The Court held in Francisco v. Francisco that when a proceeding involves assertion of a public right, the mere fact that the person filing is a citizen satisfies the requirement of personal interest. PDP-Laban (claiming standing due to the transcendental importance of issue) - There being no public funds involved and there being parties with more direct and specific interest in the controversy (the Senate and BayanMuna), gives PDP-Laban no standing. b. Actual case or controversy (was not taken up by the Court) - A challenged order which has already produced results consequent to its implementation and where such results are the subject of questions of constitutionality, is ripe for adjudication. - The implementation of E.O. 464 has resulted in the officials excusing themselves from attending the Senate hearings. It would be sheer abandonment of duty if the Court would refrain from passing upon the constitutionality of E.O. 464. 3. Yes. Congressional investigations in aid of legislation are presumed to be a matter of public concern, therefore, it follows that any executive issuance tending to unduly limit disclosures of information in such investigations deprives the people of information. 4. Yes. Although E.O. 464 applies only to officials of the executive branch, it has a direct effect on the right of the people to information on matters of public concern therefore it is not exempt from the need of publication. Due process requires that the people should have been apprised of the issuance of E.O. 464 before it was implemented. Decision Petitions are PARTLY GRANTED. Sections 2(b) and 3 of E.O. 464 are declared void while sections 1 and 2(a) are VALID.

Secondary Issues 2. a. Regarding Legal Standing of petitioners: Rule 1: Legislators have standing to maintain inviolate the prerogative, powers and privileges vested by the Constitution in their office and are allowed to sue to question the validity of any official action which they claim infringes upon their prerogatives as legislators. Rule 2: To be accorded standing on the ground of transcendental importance there must be a showing of: 1. the character of the funds (public)/assets involved 2. a clear case of disregard of a constitutional or statutory prohibition 3. lack of a party with a more direct and specific interest in raising the questions raised.

The Senate of the Philippines - The Senate, including its individual members, by virtue of their fundamental right for intelligent public decision-making and sound legislation is the proper party to assail an executive order which allegedly stifles the ability of the members of Congress to access information crucial to law-making. It has a substantial and direct interest over the outcome of such a controversy.


WHEREAS, the activities above-described, their consequences, ramifications and collateral effects constitute a clear and present danger to the safety and the integrity of the Philippine State and of the Filipino people; NOW, THEREFORE, I Gloria Macapagal-Arroyo, President of the Republic of the Philippines and Commander-in-Chief of the Armed Forces of the Philippines, by virtue of the powers vested upon me by Section 18, Article 7 of the Philippine Constitution which states that: " The Presidentwhenever it becomes necessary,may call out (the) armed forces to prevent or suppressrebellion, " and in my capacity as their Commander-in-Chief, do hereby command the Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well any act of insurrection or rebellion and to enforce obedience to all the laws and to all decrees, orders and regulations promulgated by me personally or upon my direction; and as provided in Section 17, Article 12 of the Constitution do hereby declare a State of National Emergency. IN WITNESS HEREOF, I have hereunto set my hand and caused the seal of the Republic of the Philippines to be affixed. Done in the City of Manila, this 24th day of February, in the year of Our Lord, two thousand and six.


February 24, 2006

PROCLAMATION DECLARING A STATE OF NATIONAL EMERGENCY WHEREAS, over these past months, elements in the political opposition have conspired with authoritarians of the extreme Left represented by the NDF-CPP-NPA and the extreme Right, represented by military adventurists - the historical enemies of the democratic Philippine State - who are now in tactical alliance and engaged in a concerted and systematic conspiracy, over a broad front, to bring down the duly constituted Government elected in May 2004. WHEREAS, these conspirators have repeatedly tried to bring down the President; WHEREAS, the claims of these elements have been recklessly magnified by certain segments of the national media; WHEREAS, this series of actions is hurting the Philippine State - by obstructing governance including hindering the growth of the economy and sabotaging the people's confidence in government and their faith in the future of this country; WHEREAS, these actions are adversely affecting the economy; WHEREAS, these activities give totalitarian forces of both the extreme Left and extreme Right the opening to intensity their avowed aims to bring down the democratic Philippine State; WHEREAS, Article 2, Section 4 of our Constitution makes the defense and preservation of the democratic institutions and the State the primary duty of Government;

(Sgd.) GLORIA MACAPAGAL-ARROYO President Republic of the Philippines


2. WON Rules of Procedure for Impeachment Proceedings adopted by 12 Congress is constitutional and second impeachment complaint is valid


HELD FACTS - Art 11, Sec 8 Constitution Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this Section. - November 2001 - 12 Congress of the House of Representatives adopted and approved the Rules of Procedure in Impeachment Proceedings (House Impeachment th Rules) superseding the Rules approved by 11 Congress > Section 16. Impeachment Proceedings Deemed Initiated. In cases where a Member of the House files a verified complaint of impeachment or a citizen files a verified complaint that is endorsed by a Member of the House through a resolution of endorsement against an impeachable officer, impeachment proceedings against such official are deemed initiated on the day the Committee on Justice finds that the verified complaint and/or resolution against such official, as the case may be, is sufficient in substance, or on the date the House votes to overturn or affirm the finding of the said Committee that the verified complaint and/or resolution, as the case may be, is not sufficient in substance. In cases where a verified complaint or a resolution of impeachment is filed or endorsed, as the case may be, by at least one-third (1/3) of the Members of the House, impeachment proceedings are deemed initiated at the time of the filing of such verified complaint or resolution of impeachment with the Secretary General. > Section 17. Bar Against Initiation Of Impeachment Proceedings . Within a period of one (1) year from the date impeachment proceedings are deemed initiated as provided in Section 16 hereof, no impeachment proceedings, as such, can be initiated against the same official. - July 2002 House of representatives adopted a Resolution directing Committee on Justice to conduct an investigation in aid of legislation on the manner of disbursements and expenditures by the Chief Justice of the Judiciary Development Fund - June 2003 Pres. Estrada filed the first impeachment complaint against Davide and 7 associate justices for culpable violation of the Constitution, betrayal of public trust, and other high crimes; endorsed by Rep. Suplico, Zamora, and Dilangalen House Committee on Justice dismissed the complain because insufficient in substance - October 2003 Rep. Teodoro and Fuentebella filed second impeachment complaint founded on the alleged results of the legislative inquiry; resolution of endorsement/impeachment was signed by at least 1/3 of all the members of the House of Representatives

1. Justiciable. The Constitution did not intend to leave the matter of impeachment to the sole discretion of Congress. Instead, it provided for judicially discoverable standards for determining the validity of the exercise of such discretion through power of judicial review. o Locus standi - Case is of transcendental pubic importance. o Ripe for adjudication - the second complaint had been filed and the 2001 rules had been promulgated and enforced. o Lis mota - (1) whether Sections 15 and 16 of Rule V of the House th Impeachment Rules adopted by the 12 Congress are unconstitutional for violating the provisions of Section 3, Article XI of the Constitution; and (2) whether, as a result thereof, the second impeachment complaint is barred under Section 3(5) of Article XI of the Constitution. o Judicial Restraint not an option because the Court is not legally disqualified; no other tribunal to which the controversy may be referred. 2. Sections 16 and 17 of Rule V of the Rules of Procedure in Impeachment Proceedings which were approved by the House of Representatives on November 28, 2001 are unconstitutional. Consequently, the second impeachment complaint against Chief Justice Hilario G. Davide, Jr. which was filed by Representatives Gilberto C. Teodoro, Jr. and Felix William B. Fuentebella with the Office of the Secretary General of the House of Representatives on October 23, 2003 is barred under paragraph 5, section 3 of Article XI of the Constitution. o Interpretation of the term initiate takes place by the act of filing and referral or endorsement of the impeachment complaint to the House Committee on Justice or, by filing by at least 1/3 of the members of the HR with the Secretary General of the House, the meaning of Sec 3 (5) of Art XI becomes clear. o Sec 3 (5) of Article XI once an impeachment complains has been initiated, another complaint may not be filed against the same official within a period of one year. o Under Sections 16 and 17 of Rule V of the House Impeachment Rules, impeachment proceedings are deemed initiated (1) if there is a finding by the House Committee on Justice that the verified complaint and/or resolution is sufficient in substance, or (2) once the House itself affirms or overturns the finding of the Committee on Justice that the verified complaint and/or resolution is not sufficient in substance or (3) by the filing or endorsement before the Secretary-General of the House of Representatives of a verified complaint or a resolution of impeachment by at least 1/3 of the members of the House. These rules clearly contravene Section 3 (5) of Article XI since the rules give the term initiate a meaning different meaning from filing and referral.

ISSUES 1. WON issue is justiciable

U.S. Supreme Court PANAMA REFINING CO. v. RYAN, 293 U.S. 388 (1935) 293 U.S. 388 PANAMA REFINING CO. et al. v. RYAN et al. AMAZON PETROLEUM CORPORATION et al. v. SAME. Nos. 135, 260. Argued Dec. 10, 11, 1934. Decided Jan. 7, 1935. [293 U.S. 388, 391] for petitioners. Messrs. J. N. Saye, of Longview, Tex., and F. W. Fischer, of Tyler, Tex.,

address of the producer, the location of his producing properties and wells, the allowable production as prescribed by state authority, the amount of daily production, all deliveries of petroleum, and declaring that no part of the petroleum or products produced and shipped had been produced or withdrawn from storage in excess of the amount permitted by state authority. Regulation V required every purchaser, shipper (other than a producer), and refiner of petroleum, including processors, similarly to file a monthly statement under oath, giving information as to residence and post office address, the place and date of receipt, the parties from whom and the amount of petroleum received and the amount held in storage, the disposition of the petroleum, particulars as to deliveries, and declaring, to the best of the affiant's information and belief, that none of the petroleum so handled had been produced or withdrawn from storage in excess of that allowed by state authority. Regulation VII provided that all persons embraced within the terms of section 9(c) of the act, 15 USCA 709(a) and the executive orders and regulations issued thereunder, should keep 'available for inspection by the Division of Investigations of the Department of the Interior adequate books and records of all transactions involving the production and transportation of petroleum and the products thereof.' On August 19, 1933, the President, by Executive Order No. 6256, stating that his action was taken under title 1 of the National Industrial Recovery Act, approved a 'Code of [293 U.S. 388, 409] Fair Competition for the Petroleum Industry.' 3 By a further Executive Order of August 28, 1933, the President designated the Secretary of the Interior as Administrator, and the Department of the Interior as the federal agency, to exercise on behalf of the President all the powers vested in him under that act and code. Section 3(f) of title 1 of the National Industrial Recovery Act, 15 USCA 703(f), provides that, when a code of fair competition has been approved or prescribed by the President under that title, 'any violation of any provision thereof in any transaction in or affecting interstate or foreign commerce shall [293 U.S. 388, 410] be a misdemeanor and upon conviction thereof an offender shall be fined not more than $500 for each offense, and each day such violation continues shall be deemed a separate offense.' This 'Petroleum Code' (in its original form and as officially printed) provided in section 3 of article III relating to 'Production' for estimates of 'required production of crude oil to balance consumer demand for petroleum products' to be made at intervals by the federal agency. This 'required production' was to be 'equitably allocated' among the several states. These estimates and allocations, when approved by the President, were to be deemed to be 'the net reasonable market demand,' and the allocations were to be recommended 'as the operating schedules for the producing States and for the industry.' By section 4 of article III, the subdivision, with respect to producing properties, of the production allocated to each state, was to be made within the state. The second paragraph of that section further provided: 'If any subdivision into quotas of production allocated to any State shall be made within a State any production by any person, as person is defined in Article I, Section 3 of this code in excess of any such quota assigned to him, shall be deemed an unfair trade practice and in violation of this code.' By an Executive Order of September 13, 1933, No. 6284-a, modifying certain provisions of the Petroleum Code, this second paragraph of section 4 of article III was eliminated. It was reinstated by Executive Order of September 25, 1934, No. 6855 These suits were brought in October, 1933. In No. 135, the Panama Refining Company, as owner of an oil refining plant in Texas, and its coplaintiff, a producer having oil and gas leases in Texas, sued to restrain the defendants, who were federal officials, from enforcing Regulations IV, V, and VII prescribed by the Secretary of the Interior under section 9(c) of the National Industrial [293 U.S. 388, 411] Recovery Act. Plaintiffs attacked the validity of section 9(c) as an unconstitutional delegation to the President of legislative power and as transcending the authority of the Congress under the commerce clause. The regulations, and the attempts to enforce them by coming upon the properties of the plaintiffs, gauging their tanks, digging up pipe lines, and otherwise, were also assailed under the Fourth and Fifth Amendments of the Constitution. In No. 260, the Amazon Petroleum Corporation and its coplaintiffs, all being oil producers in Texas and owning separate properties, sued to enjoin the Railroad Commission of that state, its

[293 U.S. 388, 398] Mr. Harold M. Stephens, Asst. Atty. Gen., for respondents. [293 U.S. 388, 405] Mr. Chief Justice HUGHES delivered the opinion of the Court. On July 11, 1933, the President, by Executive Order No. 6199 (15 USCA 709 note), prohibited 'the transportation in interstate and foreign commerce of petroleum and the products thereof produced or withdrawn from storage in excess of the amount permitted to be produced or withdrawn from storage by any State law or valid regulation or order prescribed thereunder, by any board, commission, officer, or other duly [293 U.S. 388, 406] authorized agency of a State.' 1 This action was based on section 9(c) of title 1 of the National Industrial Recovery Act of June 16, 1933, 48 Stat. 195, 200, 15 U.S.C. tit. 1, 709(c), 15 USCA 709(c). That section provides: 'Sec. 9. ... '(c) The President is authorized to prohibit the transportation in interstate and foreign commerce of petroleum and the products thereof produced or withdrawn from storage in excess of the amount permitted to be produced or withdrawn from storage by any State law or valid regulation or order prescribed thereunder, by any board, commission, officer, or other duly authorized agency of a State. Any violation of any order of the President issued under the provisions of this subsection shall be punishable by fine of not to exceed $1,000, or imprisonment for not to exceed six months, or both.' On July 14, 1933, the President, by Executive Order No. 6204 (15 USCA 709 note), authorized the Secretary of the Interior to exercise all the powers vested in the President 'for the purpose of en- [293 U.S. 388, 407] forcing Section 9(c) of said act and said order' of July 11, 1933, 'including full authority to designate and appoint such agents and to set up such boards and agencies as he may see fit, and to promulgate such rules and regulations as he may deem necessary.' 2 That order was made under section 10(a) of the National Industrial Recovery Act, 48 Stat. 200, 15 U.S.C. 710(a), 15 USCA 710(a), authorizing the President 'to prescribe such rules and regulations as may be necessary to carry out the purposes' of title 1 of the National Industrial Recovery Act and providing that 'any violation of any such rule or regulation shall be punishable by fine of not to exceed $500, or imprisonment for not to exceed six months, or both.' On July 15, 1933, the Secretary of the Interior issued regulations to carry out the President's orders of July 11 and 14, 1933. These regulations were amended by orders [293 U.S. 388, 408] of July 25, 1933, and August 21, 1933, prior to the commencement of these suits. Regulation IV provided, in substance, that every producer of petroleum should file a monthly statement under oath, beginning August 15, 1933, with the Division of Investigations of the Department of the Interior giving information with respect to the residence and post office

members and other state officers, and the other defendants who were federal officials, from enforcing the state and federal restrictions upon the production and disposition of oil. The bill alleged that the legislation of the state and the orders of its commission in curtailing production violated the Fourteenth Amendment of the Federal Constitution. As to the federal requirements, the bill not only attacked section 9(c) of the National Industrial Recovery Act, and the regulations of the Secretary of the Interior thereunder, upon substantially the same grounds as those set forth in the bill of the Panama Refining Company, but also challenged the validity of provisions of the Petroleum Code. While a number of these provisions were set out in the bill, the contest on the trial related to the limitation of production through the allocation of quotas pursuant to section 4 of article III of the code. As the case involved the constitutional validity of orders of the state commission and an interlocutory injunction was sought, a court of three judges was convened under section 266 of the Judicial Code (28 U.S.C . 380 (28 USCA 380)). That court decided that the cause of action against the federal officials was not one within section 266, but was for the consideration of the District Judge alone. The parties agreed that the causes of action should be severed and that each cause [293 U.S. 388, 412] should be submitted to the tribunal having jurisdiction of it. Hearing was had both on the applications for interlocutory injunction and upon the merits. The court of three judges, sustaining the state orders, denied injunction, and dismissed the bill as against the state authorities. Amazon Petroleum Corp. v. Railroad Comm. (D.C.) 5 F.Supp. 633, 634, 639. In both cases against the federal officials, that of the Panama Refining Company and that of the Amazon Petroleum Corporation, heard by the District Judge, a permanent injunction was granted. 5 F.Supp. 639. In the case of the Amazon Petroleum Corporation, the court specifically enjoined the defendants from enforcing section 4 of article III of the Petroleum Code; both plaintiffs and defendants and the court being unaware of the amendment of September 13, 1933. The Circuit Court of Appeals reversed the decrees against the federal officials and directed that the bills be dismissed. Ryan v. Amazon Petroleum Corp., 71 F.(2d) 1; Ryan v. Panama Refining Co., 71 F.(2d) 8. The cases come here on writs of certiorari granted on October 8, 1934, 293 U.S. 539 , 55 S.Ct. 102, 79 L.Ed. --; 293 U.S. 539 , 55 S.Ct. 83, 79 L.Ed. --. First. The controversy with respect to the provision of section 4 of article III of the Petroleum Code was initiated and proceeded in the courts below upon a false assumption. That assumption was that this section still contained the paragraph (eliminated by the Executive Order of September 13, 1933) by which production in excess of assigned quotas was made an unfair practice and a violation of the code. Whatever the cause of the failure to give appropriate public notice of the change in the section, with the result that the persons affected, the prosecuting authorities, and the courts, were alike ignorant of the alteration, the fact is that the attack in this respect was upon a provision which did not exist. The government's announcement that, by reason of the elimination of this paragraph, the government 'cannot, and therefore it does not intend to, prosecute petitioners or other producers of oil in Texas, criminally or otherwise, [293 U.S. 388, 413] for exceeding, at any time prior to September 25, 1934, the quotas of production assigned to them under the laws of Texas,' but that, if 'petitioners, or other producers, produce in excess of such quotas after September 25, 1934, the government intends to prosecute them,' cannot avail to import into the present case the amended provision of that date. 4 The case is not one where a subsequent law is applicable to a pending suit and controls its disposition. 5 When this suit was brought and when it was heard, there was no cause of action for the injunction sought with respect to the provision of section 4 of article III of the code; as to that, there was no basis for real controversy. See California v. San Pablo & T.R. Co., 149 U.S. 308, 314 , 13 S.Ct. 876; United States v. Alaska Steamship Co., 253 U.S. 113, 116 , 40 S.Ct. 448; Barker Painting Co. v. Local No. 734, Brotherhood of Painters, etc., 281 U.S. 462 , 50 S.Ct. 356. If the government undertakes to enforce the new provision, the petitioners, as well as others, will have an opportunity to present their grievance, which can then be considered, as it should be, in the light of the facts as they will then appear. For this reason, we pass to the other questions presented, and we express no opinion as to the interpretation or validity of the provisions of the Petroleum Code.

Second. Regulations IV, V, and VII, issued by the Secretary of the Interior prior to these suits, have since been amended. But the amended regulations continue sub- [293 U.S. 388, 414] stantially the earlier requirements and expand them. They present the same constitutional questions, and the cases as to these are not moot. Southern Pacific Company v. Interstate Commerce Commission, 219 U.S. 433, 452 , 31 S. Ct. 288; Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498 , 514-516, 31 S.Ct. 279; McGrain v. Daugherty, 273 U.S. 135, 181 , 182 S., 47 S.Ct. 319, 50 A.L.R. 1. The original regulations of July 15, 1933, as amended July 25, 1933, and August 21, 1933, were issued to enforce the Executive Orders of July 11 and July 14, 1933. The Executive Order of July 11, 1933, was made under section 9(c) of the National Industrial Recovery Act, and the Executive Order of July 14, 1933, under section 10(a) of that act, authorizing the Secretary of the Interior to promulgate regulations, was for the purpose of enforcing section 9(c) and the Executive Order of July 11, 1933. The amended regulations have been issued for the same purpose. The fundamental question as to these regulations thus turns upon the validity of section 9( c) and the executive orders to carry it out. Third. The statute provides that any violation of any order of the President issued under section 9(c) shall be punishable by fine of not to exceed $1,000, or imprisonment for not to exceed six months, or both. We think that these penalties would attach to each violation, and in this view the plaintiffs were entitled to invoke the equitable jurisdiction to restrain enforcement, if the statute and the executive orders were found to be invalid. Philadelphia Company v. Stimson, 223 U.S. 605, 620 , 621 S., 32 S.Ct. 340; Terrace v. Thompson, 263 U.S. 197 , 214-216, 44 S. Ct. 15; Hygrade Provision Company v. Sherman, 266 U.S. 497, 499 , 500 S., 45 S.Ct. 141. Fourth. Section 9[c] is assailed upon the ground that it is an unconstitutional delegation of legislative power. The section purports to authorize the President to pass a prohibitory law. The subject to which this authority relates is defined. It is the transportation in interstate and [293 U.S. 388, 415] foreign commerce of petroleum and petroleum products which are produced or withdrawn from storage in excess of the amount permitted by state authority. Assuming for the present purpose, without deciding, that the Congress has power to interdict the transportation of that excess in interstate and foreign commerce, the question whether that transportation shall be prohibited by law is obviously one of legislative policy. Accordingly, we look to the statute to see whether the Congress has declared a policy with respect to that subject; whether the Congress has set up a standard for the President's action; whether the Congress has required any finding by the President in the exercise of the authority to enact the prohibition. Section 9(c) is brief and unambiguous. It does not attempt to control the production of petroleum and petroleum products within a state. It does not seek to lay down rules for the guidance of state Legislatures or state officers. It leaves to the states and to their constituted authorities the determination of what production shall be permitted. It does not qualify the President's authority by reference to the basis or extent of the state's limitation of production. Section 9(c) does not state whether or in what circumstances or under what conditions the President is to prohibit the transportation of the amount of petroleum or petroleum products produced in excess of the state's permission. It establishes no creterion to govern the President's course. It does not require any finding by the President as a condition of his action. The Congress in section 9(c) thus declares no policy as to the transportation of the excess production. So far as this section is concerned, it gives to the President an unlimited authority to determine the policy and to lay down the prohibition, or not to lay it down, as he may see fit. And disobedience to his order is made a crime punishable by fine and imprisonment. [293 U.S. 388, 416] We examine the context to ascertain if it furnishes a declaration of policy or a standard of action, which can be deemed to relate to the subject of section 9(c) and thus to imply what is not there expressed. It is important to note that section 9 (15 USCA 709) is headed 'Oil Regulation'-that is, section 9 is the part of the National Industrial Recovery Act which particularly deals with that subject-matter. But the other provisions of section 9 afford no ground for implying a limitation of the broad grant of authority in section 9(c). Thus section 9(a) authorizes the President to initiate before the Interstate Commerce Commission 'proceedings necessary to prescribe regulations to control the operations of oil pipe lines and to fix reasonable, compensatory rates for the transportation of petroleum and its products by pipe lines,' and the Interstate Commerce Commission is to grant preference 'to the hearings and determination of such cases.' Section 9(b) authorizes the

President to institute proceedings 'to divorce from any holding company any pipe-line company controlled by such holding company which pipeline company by unfair practices or by exorbitant rates in the transportation of petroleum or its products tends to create a monopoly.' It will be observed that each of these provisions contains restrictive clauses as to their respective subjects. Neither relates to the subject of section 9(c). We turn to the other provisions of title 1 of the act. The first section (15 USCA 701) is a 'declaration of policy.' 6 It declares that a national emergency exists which is 'pro- [293 U.S. 388, 417] ductive of widespread unemployment and disorganization of industry, which burdens interstate and foreign commerce, affects the public welfare, and undermines the standards of living of the American people.' It is declared to be the policy of Congress 'to remove obstructions to the free flow of interstate and foreign commerce which tend to diminish the amount thereof;' 'to provide for the general welfare by promoting the organization of industry for the purpose of cooperative action among trade groups;' 'to induce and maintain united action of labor and management under adequate governmental sanctions and supervision;' 'to eliminate unfair competitive practices, to promote the fullest possible utilization of the present productive capacity of industries, to avoid undue restriction of production (except as may be temporarily required), to increase the consumption of industrial and agricultural products by increasing purchasing power, to reduce and relieve unemployment, to improve standards of labor, and otherwise to rehabilitate industry and to conserve natural resources.' This general outline of policy contains nothing as to the circumstances or conditions in which transportation of petroleum or petroleum products should be prohibited-nothing as to the policy of prohibiting or not prohibiting the transportation of production exceeding what the [293 U.S. 388, 418] states allow. The general policy declared is 'to remove obstructions to the free flow of interstate and foreign commerce.' As to production, the section lays down no policy of limitation. It favors the fullest possible utilization of the present productive capacity of industries. It speaks, parenthetically, of a possible temporary restriction of production, but of what, or in what circumstances, it gives no suggestion. The section also speaks in general terms of the conservation of natural resources, but it prescribes no policy for the achievement of that end. It is manifest that this broad outline is simply an introduction of the act, leaving the legislative policy as to particular subjects to be declared and defined, if at all, by the subsequent sections. It is no answer to insist that deleterious consequences follow the transportation of 'hot oil'-oil exceeding state allowances. The Congress did not prohibit that transportation. The Congress did not undertake to say that the transportation of 'hot oil' was injurious. The Congress did not say that transportation of that oil was 'unfair competition.' The Congress did not declare in what circumstances that transportation should be forbidden, or require the President to make any determination as to any facts or circumstances. Among the numerous and diverse objectives broadly stated, the President was not required to choose. The President was not required to ascertain and proclaim the conditions prevailing in the industry which made the prohibition necessary. The Congress left the matter to the President without standard or rule, to be dealt with as he pleased. The effort by ingenious and diligent construction to supply a criterion still permits such a breadth of authorized action as essentially to commit to the President the functions of a Legislature rather than those of an executive or administrative [293 U.S. 388, 419] officer executing a declared legislative policy. We find nothing in section 1 which limits or controls the authority conferred by section 9(c). We pass to the other sections of the act. Section 2 (15 USCA 702) relates to administrative agencies which may be constituted. Section 3 (15 USCA 703) provides for the approval by the President of 'codes' for trades or industries. These are to be codes of 'fair competition' and the authority is based upon certain express conditions which require findings by the President. Action under section 9(c) is not made to depend on the formulation of a code under section 3. In fact, the President's action under section 9(c) was taken more than a month before a Petroleum Code was approved. Subdivision (e) of section 3 (15 USCA 703(e) authorizes the President, on his own motion or upon complaint, as stated, in case any article is being imported into the United States 'in substantial quantities or increasing ratio to domestic production of any competitive article,' under such conditions as to endanger the maintenance of a code or agreement under title 1, to cause an immediate investigation by the Tariff Commission. The authority of the President to act, after such investigation, is conditioned upon a finding by him of the existence of

the underlying facts, and he may permit entry of the articles concerned upon such conditions and with such limitations as he shall find it necessary to prescribe in order that the entry shall not tend to render the code or agreement ineffective. Section 4 (15 USCA 704) relates to agreements and licenses for the purposes stated. Section 5 (15 USCA 705) refers to the application of the anti-trust laws. Sections 6 and 7 (15 USCA 706, 707) impose limitations upon the application of title 1, bearing upon trade associations and other organizations and upon the relations between employers and employees. Section 8 (15 USCA 708), contains provisions with respect to the application of the Agricultural Adjustment Act of May 12, 1933 (7 USCA 601 et seq.). [293 U.S. 388, 420] None of these provisions can be deemed to prescribe any limitation of the grant of authority in section 9(c). Fifth. The question whether such a delegation of legislative power is permitted by the Constitution is not answered by the argument that it should be assumed that the President has acted, and will act, for what he believes to be the public good. The point is not one of motives, but of constitutional authority, for which the best of motives is not a substitute. While the present controversy relates to a delegation to the President, the basic question has a much wider application. If the Congress can make a grant of legislative authority of the sort attempted by section 9(c), we find nothing in the Constitution which restricts the Congress to the selection of the President as grantee. The Congress may vest the power in the officer of its choice or in a board or commission such as it may select or create for the purpose. Nor, with respect to such a delegation, is the question concerned merely with the transportation of oil, or of oil produced in excess of what the state may allow. If legislative power may thus be vested in the President or other grantee as to that excess of production, we see no reason to doubt that it may similarly be vested with respect to the transportation of oil without reference to the state's requirements. That reference simply defines the subject of the prohibition which the President is authorized to enact or not to enact as he pleases. And, if that legislative power may be given to the President or other grantee, it would seem to follow that such power may similarly be conferred with respect to the transportation of other commodities in interstate commerce with or without reference to state action, thus giving to the grantee of the power the determination of what is a wise policy as to that transportation, and authority to permit or prohibit it, as the person or board or commission so chosen may [293 U.S. 388, 421] think desirable. In that view, there would appear to be no ground for denying a similar prerogative of delegation with respect to other subjects of legislation. The Constitution provides that 'All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.' Article 1, 1. And the Congress is empowered 'To make all Laws which shall be necessary and proper for carrying into Execution' its general powers. Article 1, 8, par. 18. The Congress manifestly is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested. Undoubtedly legislation must often be adapted to complex conditions involving a host of details with which the national Legislature cannot deal directly. The Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality, which will enable it to perform its function in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the Legislature is to apply. Without capacity to give authorizations of that sort we should have the anomaly of a legislative power which in many circumstances calling for its exertion would be but a futility. But the constant recognition of the necessity and validity of such provisions and the wide range of administrative authority which has been developed by means of them cannot be allowed to obscure the limitations of the authority to delegate, if our constitutional system is to be maintained. The Court has had frequent occasion to refer to these limitations and to review the course of congressional action. At the very outset, amid the disturbances due to war in Europe, when the national safety was imperiled [293 U.S. 388, 422] and our neutrality was disregarded, the Congress passed a series of acts, as a part of which the President was authorized, in stated circumstances, to lay and revoke embargoes, to give permits for the exportation of arms and military stores, to remit and discontinue the restraints and prohibitions imposed by acts suspending commercial intercourse with certain countries, and to permit or interdict the entrance

into waters of the United States of armed vessels belonging to foreign nations. 7 These early acts were not the subject of judicial decision, and, apart from that, they afford no adequate basis for a conclusion that the Congress assumed that it possessed an unqualified power of delegation. They were inspired by the vexations of American commerce through the hostile enterprises of the belligerent powers,8 they were directed to the effective execution of policies repeatedly declared by the Congress, and they confided to the President, for the purposes and under the conditions stated, an authority which was cognate to the conduct by him of the foreign relations of the government. 9 [293 U.S. 388, 423] The first case relating to an authorization of this description was that of The Aurora v. United States, 7 Cranch, 382, 388. The cargo of that vessel had been condemned as having been imported from Great Britain in violation of the Nonintercourse Act of March 1, 1809 (2 Stat. 528). That act expired on May 1, 1810,10 when Congress passed another [293 U.S. 388, 424] act (2 Stat. 605, 606) providing that, in case either Great Britain or France before March 3, 1811, 'shall ... so revoke or modify her edicts as that they shall cease to violate the neutral commerce of the United States, which fact the President of the United States shall declare by proclamation, and if the other nation shall not within three months thereafter so revoke or modify her edicts in like manner' (section 4), then, with respect to that nation, as stated, the provisions of the act of 1809, after three months from that proclamation, 'shall ... be revived and have full force and effect.' On November 2, 1810, the President issued his proclamation declaring that France had so revoked or modified her edicts, and it was contended that the provisions of the act of 1809, as to the cargo in question, had thus been revived. The Court said that it could see no sufficient reason why the Legislature should not exercise its discretion in reviving the act of 1809, 'either expressly or conditionally, as their judgment should direct.' The provision of that act declaring 'that it should continue in force to a certain time, and no longer,' could not restrict the power of the Legislature to extend its operation 'without limitation upon the occurrence of any subsequent combination of events.' This was a decision, said the Court in Field v. Clark, 143 U.S. 649, 683 , 12 S.Ct. 495, 501, 'that it was competent for congress to make the revival of an act depend upon the proclamation of the president, showing the ascertainment by him of the fact that the edicts of certain nations had been so revoked or modified that they did not violate the neutral commerce of the United States.' In Field v. Clark, supra, the Court applied that ruling to the case of 'the suspension of an act upon a contingency to be ascertained by the president, and made known by his proclamation.' The Court was dealing with section 3 of the Act of October 1, 1890, 26 Stat. 567, 612. [293 U.S. 388, 425] That section provided that, 'with a view to secure reciprocal trade' with countries producing certain articles, 'whenever, and so often as the President shall be satisfied' that the government of any country producing them imposed 'duties or other exactions upon the agricultural or other products of the United States' which, in view of the free list established by the act, the President 'may deem to be reciprocally unequal and unreasonable, he shall have the power and it shall be his duty,' to suspend the free introduction of those articles by proclamation to that effect, and that during that suspension the duties specified by the section should be levied. The validity of the provision was challenged as a delegation to the President of legislative power. The Court reviewed the early acts to which we have referred, as well as later statutes considered to be analogous. 11 While sustaining the provision, the Court emphatically declared that the principle that 'congress cannot delegate legislative power to the president' is 'universally [293 U.S. 388, 426] recognized as vital to the integrity and maintenance of the system of government ordained by the constitution.' The Court found that the act before it was not inconsistent with that principle; that it did not 'in any real sense, invest the president with the power of legislation.' As 'the suspension was absolutely required when the president ascertained the existence of a particular fact,' it could not be said 'that in ascertaining that fact, and in issuing his proclamation, in obedience to the legislative will, he exercised the function of making laws.' 'He was the mere agent of the law-making department to ascertain and declare the event upon which its expressed will was to take effect.' Id., pages 692, 693 of 143 U.S., 12 S.Ct. 495, 504, 505. The Court referred with approval to the distinction pointed out by the Supreme Court of Ohio in Cincinnati, Wilmington, etc., Railroad v. Clinton County Commissioners, 1 Ohio St. 88, between 'the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law.'

Applying that principle, authorizations given by Congress to selected instrumentalities for the purpose of ascertaining the existence of facts to which legislation is directed have constantly been sustained. Moreover the Congress may not only give such authorizations to determine specific facts, but may establish primary standards, devolving upon others the duty to carry out the declared legislative policy; that is, as Chief Justice Marshall expressed it, 'to fill up the details' under the general provisions made by the Legislature. Wayman v. Southard, 10 Wheat. 1, 43. In Buttfield v. Stranahan, 192 U.S. 470, 496 , 24 S.Ct. 349, 352, the Act of March 2, 1897 (29 Stat. 604, 605, 3 (see 21 USCA 43)), was upheld, which authorized the Secretary of the Treasury, upon the recommendation of a board of experts, to 'establish uniform standards of purity, quality, and fitness [293 U.S. 388, 427] for consumption of all kinds of teas imported into the United States.' The Court construed the statute as expressing 'the purpose to exclude the lowest grades of tea, whether demonstrably of inferior purity, or unfit for consumption, or presumably so because of their inferior quality.' The Congress, the Court said, thus fixed 'a primary standard' and committed to the Secretary of the Treasury 'the mere executive duty to effectuate the legislative policy declared in the statute.' 'Congress legislated on the subject as far as was reasonably practicable, and from the necessities of the case was compelled to leave to executive officials the duty of bringing about the result pointed out by the statute.' See Red 'C' Oil Co. v. Board of Agriculture of North Carolina, 222 U.S. 380, 394 , 32 S.Ct. 152. Another notable illustration is that of the authority given to the Secretary of War to determine whether bridges and other structures constitute unreasonable obstructions to navigation and to remove such obstructions. Act of March 3, 1899, 18, 30 Stat. 1153, 1154 (33 USCA 502). By that statute the Congress declared 'a general rule and imposed upon the Secretary of War the duty of ascertaining what particular cases came within the rule' as thus laid down. Union Bridge Co. v. United States, 204 U.S. 364, 386 , 27 S.Ct. 367; Monongahela Bridge Co. v. United States, 216 U.S. 177, 193 , 30 S.Ct. 356; Philadelphia Co. v. Stimson, 223 U.S. 605, 638 , 32 S.Ct. 340. Upon this principle rests the authority of the Interstate Commerce Commission, in the execution of the declared policy of the Congress in enforcing reasonable rates, in preventing undue preferences and unjust discriminations, in requiring suitable facilities for transportation in interstate commerce, and in exercising other powers held to have been validly conferred. St. Louis, I.M. & S. Ry. Co. v. Taylor, 210 U.S. 281, 287 , 28 S.Ct. 616; Inter-Mountain Rate Cases, 234 U.S. 476, 486 , 34 S.Ct. 986; Avent v. United States, 266 U.S. 127, 130 , 45 S.Ct. 34; New York Central Securities Corporation [293 U.S. 388, 428] v. United States, 287 U.S. 12, 24 , 25 S., 53 S.Ct. 45. Upon a similar ground the authority given to the President, in appropriate relation to his functions as Commander-in-Chief, by the Trading with the Enemy Act, as amended by the Act of March 28, 1918 (40 Stat. 460, 12 (50 USCA Appendix 12)), with respect to the disposition of enemy property, was sustained. 'The determination,' said the Court, 'of the terms of sales of enemy properties in the light of facts and conditions from time to time arising in the progress of war was not the making of a law; it was the application of the general rule laid down by the act.' United States v. Chemical Foundation, 272 U.S. 1, 12 , 47 S.Ct. 1, 5.12 The provisions of the Radio Act of 1927 (44 Stat. 1162, 1163), providing for assignments of frequencies or wave lengths to various stations, afford another instance. In granting licenses, the Radio Commission is required to act 'as public convenience, interest, or necessity requires.' Section 4. In construing this provision, the Court found that the statute itself declared the policy as to 'equality of radio broadcasting service, both of transmission and of reception,' and that it conferred authority to make allocations and assignments in order to secure, according to stated criteria, an equitable adjustment in the distribution of facilities. 13 The standard set up was not so indefinite 'as to confer an unlimited power.' Federal Radio Commission v. Nelson Brothers Co., 289 U.S. 266, 279 , 285 S., 53 S.Ct. 627, 634. So also, from the beginning of the government, the Congress has conferred upon executive officers the power to make regulations-'not for the government of their departments, but for administering the laws which did govern.' United States v. Grimaud, 220 U.S. 506, 517 , 31 S.Ct. 480, 483. Such regulations become, indeed, binding rules of con- [293 U.S. 388, 429] duct, but they are valid only as subordinate rules and when found to be within the framework of the policy which the Legislature has sufficiently defined. In the case of Grimaud, supra, a regulation made by the Secretary of Agriculture requiring permits for grazing sheep on a forest reserve of lands belonging to the United States was involved. The Court referred to the various acts for the

establishment and management of forest reservations and the authorization of rules which would 'insure the objects of such reservations,' that is, 'to regulate their occupancy and use, and to preserve the forests thereon from destruction.' The Court observed that 'it was impracticable for Congress to provide general regulations for these various and varying details of management,' and that, in authorizing the Secretary of Agriculture to meet local conditions, Congress 'was merely conferring administrative functions upon an agent, and not delegating to him legislative power.' Id., pages 515, 516 of 220 U. S., 31 S.Ct. 480, 482. The Court quoted with approval the statement of the principle in Field v. Clark, supra, that the Congress cannot delegate legislative power, and upheld the regulation in question as an administrative rule for the appropriate execution of the policy laid down in the statute. See Wayman v. Southard, supra; Interstate Commerce Commission v. Goodrich Transit Co., 224 U.S. 194, 214 , 215 S., 32 S.Ct. 436; Selective Draft Law Cases, 245 U.S. 366, 389 , 38 S.Ct. 159, L.R.A. 1918C, 361, Ann.Cas. 1918B, 856; McKinley v. United States, 249 U.S. 397 , 39 S.Ct. 324. The applicable considerations were reviewed in Hampton, Jr., & Co. v. United States, 276 U.S. 394 , 48 S.Ct. 348, 352, where the Court dealt with the so-called 'flexible tariff provision' of the Act of September 21, 1922 (42 Stat. 858, 941, 942, 315 (19 USCA 154-159)), and with the authority which it conferred upon the President. The Court applied the same principle that permitted the Congress to exercise its ratemaking power in interstate commerce, and found that a similar provision was justified for the fixing of customs duties; that is, as the Court said: 'If Congress shall lay down by [293 U.S. 388, 430] legislative act an intelligible principle to which the person or body authorized to fix such rates is directed to conform, such legislative action is not a forbidden delegation of legislative power. If it is thought wise to vary the customs duties according to changing conditions of production at home and abroad, it may authorize the Chief Executive to carry out this purpose, with the advisory assistance of a Tariff Commission appointed under congressional authority.' The Court sustained the provision upon the authority of Field v. Clark, supra, repeating with approval what was there said, that 'What the President was required to do was merely in execution of the act of Congress.' Id., pages 409-411 of 276 U.S., 48 S.Ct. 348, 352. Thus, in every case in which the question has been raised, the Court has recognized that there are limits of delegation which there is no constitutional authority to transcend. We think that section 9(c) goes beyond those limits. As to the transportation of oil production in excess of state permission, the Congress has declared no policy, has established no standard, has laid down no rule. There is no requirement, no definition of circumstances and conditions in which the transportation is to be allowed or prohibited. If section 9(c) were held valid, it would be idle to pretend that anything would be left of limitations upon the power of the Congress to delegate its lawmaking function. The reasoning of the many decisions we have reviewed would be made vacuous and their distinctions nugatory. Instead of performing its lawmaking function, the Congress could at will and as to such subjects as it chooses transfer that function to the President or other officer or to an administrative body. The question is not of the intrinsic importance of the particular statute before us, but of the constitutional processes of legislation which are an essential part of our system of government. [293 U.S. 388, 431] Sixth. There is another objection to the validity of the prohibition laid down by the executive order under section 9(c). The executive order contains no finding, no statement of the grounds of the President's action in enacting the prohibition. Both section 9(c) and the executive order are in notable contrast with historic practice (as shown by many statutes and proclamations we have cited in the margin14) by which declarations of policy are made by the Congress and delegations are within the framework of that policy and have relation to facts and conditions to be found and stated by the President in the appropriate exercise of the delegated authority. If it could be said that from the four corners of the statute any possible inference could be drawn of particular circumstances or conditions which were to govern the exercise of the authority conferred, the President could not act validly without having regard to those circumstances and conditions. And findings by him as to the existence of the required basis of his action would be necessary to sustain that action, for otherwise the case would still be one of an unfettered discretion as the qualification of authority would be ineffectual. The point is pertinent in relation to the first section of the National Industrial Recovery Act. We have said that the first section is but a general introduction, that it declares no policy and defines no standard

with respect to the transportation which is the subject of section 9(c). But if from the extremely broad description contained in that section and the widely different matters to which the section refers, it were possible to derive a statement of prerequisites to the President's action under section 9(c), it would still be necessary for the President to comply with those conditions and to show that compliance as the ground of his prohibition. To hold [293 U.S. 388, 432] that he is free to select as he chooses from the many and various objects generally described in the first section, and then to act without making any finding with respect to any object that he does select, and the circumstances properly related to that object, would be in effect to make the conditions inoperative and to invest him with an uncontrolled legislative power. We are not dealing with action which, appropriately belonging to the executive province, is not the subject of judicial review or with the presumptions attaching to executive action. 15 To repeat, we are concerned with the question of the delegation of legislative power. If the citizen is to be punished for the crime of violating a legislative order of an executive officer, or of a board or commission, due process of law requires that it shall appear that the order is within the authority of the officer, board, or commission, and, if that authority depends on determinations of fact, those determinations must be shown. As the Court said in Wichita Railroad & Light Co. v. Public Utilities Commission, 260 U.S. 48, 59 , 43 S.Ct. 51, 55: 'In creating such an administrative agency, the Legislature, to prevent its being a pure delegation of legislative power, must enjoin upon it a certain course of procedure and certain rules of decision in the performance of its function. It is a wholesome and necessary principle that such an agency must pursue the procedure and rules enjoined, and show a substantial compliance therewith to give validity to its action. When, therefore, such an administrative agency is required as a condition precedent to an order, to make a finding of facts, the validity of the order must rest upon the needed finding. If it is lacking, the order is ineffective. [293 U.S. 388, 433] It is pressed on us that the lack of an express finding may be supplied by implication and by reference to the averments of the petition invoking the action of the Commission. We cannot agree to this.' Referring to the ruling in the Wichita Case, the Court said in Mahler v. Eby, 264 U.S. 32, 44 , 44 S.Ct. 283, 288: 'We held that the order in that case, made after a hearing and ordering a reduction, was void for lack of the express finding in the order. We put this conclusion, not only on the language of the statute, but also on general principles of constitutional government.' We cannot regard the President as immune from the application of these constitutional principles. When the President is invested with legislative authority as the delegate of Congress in carrying out a declared policy, he necessarily acts under the constitutional restriction applicable to such a delegation. We see no escape from the conclusion that the Executive Orders of July 11, 1933, and July 14, 1933, Nos. 6199, 6204 (15 USCA 709 note), and the regulations issued by the Secretary of the Interior thereunder, are without constitutional authority. The decrees of the Circuit Court of Appeals are reversed, and the causes are remanded to the District Court, with direction to modify its decrees in conformity with this opinion so as to grant permanent injunctions, restraining the defendants from enforcing those orders and regulations. It is so ordered.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 8692 September 10, 1913

The action referred to in this paragraph is one begun by Antonio Bertol and Tranquilina T., windows of Angeles, against Godofredo B. Herrera and others relating to the validity of a certain ordinance. 5. That there being pending civil case No. 986 mentioned in the previous paragraphs, the Court of First Instance of Rizal lacked jurisdiction to issue the mandatory injunction which he issued on the 1st of March, 1913, for the reason that it tends to render inefficacious and null the decision which the Honorable Richard Campbell will render in civil cause No. 986. This objection is based upon an action previously begun by Antonio Bertol and Tranquilina T., windows of Angeles, against the municipality or the officials thereof for the purpose of having declared null and void municipal ordinance No. 8 of Caloocan, which is the same ordinance upon which was based the complaint of Constancio Joaquin and in which the mandatory injunction was issued. 6. That the said Constancio Joaquin at the present time does not possess a license to maintain and run the said cockpits of Loma and Maypajo, nor does he have the right to exploit the same. It has been repeatedly held by this court that a writ of certiorari will not be issued unless it clearly appears that the court to which it is to be directed acted without or in excess of jurisdiction. It will be not be issued to cure errors in the proceedings or to correct erroneous conclusions of law or of fact. If the court has jurisdiction of the subject matter and of the person, decisions upon all questions pertaining to the cause are decision within its jurisdiction and, however irregular or erroneous they may be, cannot be corrected by certiorari. The Code of Civil Procedure giving Court of First Instance general jurisdiction in actions for mandamus, it goes without saying that the Court of First Instance had jurisdiction in the present case to resolve every question arising in such an action and to decide every question presented to it which pertained to the cause. It had already been held by this court that, while it is a power to be exercised only in extreme cases, a Court of First Instance has power to issue a mandatory injunction to stand until the final determination of the action in which it is issued. While the issuance of the mandatory injunction in this particular case may have been irregular and erroneous, a question concerning which we express no opinion, nevertheless its issuance was within the jurisdiction of the court and its action is not reviewable on certiorari. It is not sufficient to say that it was issued wrongfully and without sufficient grounds and in the absence of the other party. The question is, did the court act with jurisdiction? It has been urged that the court exceeded its jurisdiction in requiring the municipal president to issue the license, for the reason that he was not the proper person to issue it and that, if he was the proper person, he had the right to exercise a discretion as to whom the license should be issued. We do not believe that either of these question goes to the jurisdiction of the court to act. One of the fundamental questions in a mandamus against a public officer is whether or not that officer has the right to exercise discretion in the performance of the act which the plaintiff asks him to perform. It is one of the essential determination of the cause. To claim that the resolution of that question may deprive the court of jurisdiction is to assert a novel proposition. It is equivalent to the contention that a court has jurisdiction if he decides right but no jurisdiction if he decides wrong. It may be stated generally that it is never necessary to decide the fundamental questions of a cause to determine whether the court has jurisdiction. The question of jurisdiction is preliminary and never touches the merits of the case. The determination of the fundamental questions of a cause are merely the exercise of a jurisdiction already conceded. In the case at bar no one denies the power, authority, or jurisdiction of the Court of First Instance to take cognizance of an action for mandamus and to decide every question which arises in that cause and pertains thereto. The contention that the decision of one of those questions, if wrong, destroys jurisdiction involves an evident contradiction. Jurisdiction is the authority to hear and determine a cause the right to act in a case. Since it is the power to hear and determine, it does not depend either upon the regularity of the exercise of that power or upon the rightfulness of the decisions made. Jurisdiction should therefore be distinguished from the exercise of jurisdiction. The authority to decide a cause at all, and not the

GODOFREDO B. HERRERA, as municipal president of Caloocan, petitioner, vs. ALBERTO BARRETTO, judge of first instance of Rizal, and CONSTANCIO JOAQUIN, respondents. Office of the Solicitor-General Harvey for petitioner. R. Diokno, and Gibbs, McDonough and Blanco for respondents. MORELAND, J.: This is an application for a writ of certiorari to the Court of First Instance of the Province of Rizal. It appears that on or about the 1st of March, 1913, Constancio Joaquin, believing himself entitled to a license to open and exploit a cockpit in the municipality of Caloocan, and the authorities thereof refusing to issue it to him, began an action against Godofredo B. Herrera as municipal president of said municipality, the officer whose duty he claimed it was to issue cockpit licenses, to obtain a mandamus compelling said official to issue such license. On the presentation of the verified complaint and upon the facts stated therein and the exhibits annexed thereto, the plaintiff asked that the court issue a mandatory injunction directed to the defendant requiring him to issue a provisional license under which the plaintiff might conduct his cockpit during the pendency of the action. The court, in pursuance of such request and upon the facts stated in the complaint and exhibits annexed thereto, issued such order ex parte without notice of the defendant. Thereupon the defendant in that action began a proceeding in this court against the judge of the Court of First Instance who had issued the mandatory injunction relative to the provisional license referred to, Honorable Alberto Barretto, and Constancio Joaquin, plaintiff therein, for a writ of certiorari, alleging that the court below and had acted without jurisdiction in the following particulars: 1. That the said Honorable Alberto Barretto exceeded his jurisdiction in issuing a mandatory injunction, because, according to paragraph ( j), section 40, of the Municipal Code and article 4 of municipal ordinance No. 8 of Caloocan (Exhibit 1 a), the issuance of cockpit licenses in Loma and Maypajo does not pertain to the municipal president of Caloocan but to the municipal council thereof. 2. That the said Honorable Alberto Barretto exceeded his jurisdiction in issuing the mandatory injunction ex parte without giving the municipal president opportunity to show cause why such injunction should not be issued as required by section 202 of the Code of Civil Procedure. 3. That the said Alberto Barretto exceeded his jurisdiction in issuing such mandatory injunction for the reason that the cockpit license which the president of Caloocan had erroneously issued in favor of Constancio Joaquin, on the day of __________, 1913, has been annulled and cancelled by virtue of ordinance No. _____ of the municipal council of Caloocan, which ordinance has been duly approved by the provincial board of Rizal. 4. That there being another action pending between the same parties, founded upon the same facts and reasons, the Court of First Instance of Rizal had no jurisdiction to issue the mandatory injunction of the 1st of March, 1913 (Exhibit 4), for the reason that such injunction tends to render inefficacious and null the final decision which this honorable court will render in civil case No. 8673.

decision rendered therein, is what makes up jurisdiction. Where there is jurisdiction of the person and subject matter, as we have said before, the decision of all other questions arising in the case is but an exercise of that jurisdiction. In the case of Chase vs. Christianson (41 Cal., 253), the court said: "Here, then, was jurisdiction of the subject matter and of the person and these conditions conceded, the decision of all other question arising in the case is but the exercise of that jurisdiction and an erroneous decision of any of these other questions could not impair the validity and binding force of the judgment when brought in question collaterally. It is not the particular decision given which makes up jurisdiction, but it is the authority to decide the question at all. Otherwise all distinction between erroneous exercise of jurisdiction upon the hand, and a total want of it upon the other, must be obliterated. In the case of Freeman vs. Thompson (53 Mo., 183), the following is quoted with approval from Paine vs. Mooreland (15 Ohio, 435): "The court once having, by its process, acquired the power to adjudicate upon a person of thing, it has what is called jurisdiction. . . . The distinction is between a lack of power or want of jurisdiction in the court, and a wrongful or defective execution of the power. In the first instance, all acts of a court, not having jurisdiction or power, are void; in the latter, voidable only. A court, then may act, first without power or jurisdiction; second, having power or jurisdiction, may exercise it wrongfully; or third, irregularly. In the first instance the act or judgment of the court is wholly void, and is as though it as though it had not been done; the second is wrong and must be reversed upon error; the third is irregular and must be corrected by motion." In Hardin vs. Lee (51 Mo., 241), the court said: "The judgment though grossly erroneous was not void, the court having acquired jurisdiction of the subject matter. . . . In a word, error and nullity are not legal equivalent or synonymous." In Hagerman vs. Sutton (91 Mo., 519), the court said: "The power to decide correctly and to enforce a decision when correctly made necessarily implies the same power to decide incorrectly and to enforce a decision when incorrectly made. (Devis vs. Packard, 10 Wend., 71.)" In Paine vs. Mooreland (15 Ohio, 435), the court said: "The distinction is between a lack of power or want of jurisdiction in the court, and a wrongful or defective execution of the power. In the first instance all acts of the court, now having jurisdiction or power, are void; in the latter voidable only." In the case of Colton vs. Beardsly (38 Barb., 51), the court said: "The test of jurisdiction is, whether the court has power to enter on the inquiry, and not whether its decision is right or wrong." In Wertheimer vs. Boonville (29 Mo., 25 4), the court said: "It is hard to conceive how the question of jurisdiction can be made to depend on the fact whether the judgment was right or wrong. The mayor unquestionably has authority to decide whether the ordinance had been violated, and after he has determined it, how can it be said he had no jurisdiction?" In O'Rielly vs. Nicholson (45 Mo., 160), the court said: "A judgment, though informal, even to the extent of granting a relief not contemplated in the petition, when the parties are before the court and the relief is within its jurisdiction, is not a void proceeding. The doctrine laid down in Fithian vs. Monks (43 Mo., 502), 'in that it fails to make the readily observable distinction between jurisdiction to act in a given cause, and erroneous exercise of such jurisdiction, . . . should no longer be followed . . . Jurisdiction being acquired error could not oust it, although that error consisted in granting relief not warranted by law.'" In the case of Gray vs. Bowles (74 Mo., 419), the court said: "When a court has jurisdiction of the subject matter of the action and the parties to it, a judgment rendered by it, although it may be an erroneous, irregular, or wrong judgment, cannot be said to be void, but remains valid and binding until reversed or set aside on the ground of such error or irregularity." In States vs. Second Judicial District (24 Mont., 238), the court said: "A judgment was rendered against Baker, who appealed but could not furnish the necessary bonds or security on appeal.

The purpose of this application is to set aside the judgment, the relator asserting that the district court was without jurisdiction. The right to hear and determine necessarily carries with it the power to decide wrong as well as right. It did not exceed its jurisdiction although the court may have erred, yet it regularly pursued its authority. Certiorari may not be used to correct errors committed within the jurisdiction of the court." In Central Pac. vs. Board (43 Cal., 365) the court said: "Mere irregularly intervening in the exercise of an admitted jurisdiction mere mistakes of law committed in conducting the proceedings in an inquiry which the Board had authority to entertain, . . . are not to be considered here upon certiorari, otherwise that writ would be turned into a writ of error . . . Jurisdiction over a question presented being conceded, carries with it necessarily the authority the mere power to decide the question either way." In Lewis vs. Larson (45 Wis., 353), the court said: "The judgment of a justice of the peace will not be reversed on a common-law certiorari, if the justice had jurisdiction to render it, no matter how irregular or erroneous it may be." In the case of Utah Association vs. Budge (16 Idaho, 751), the court said: "If the court had jurisdiction of the person and the subject matter, then it is clear that whatever mistakes has been made has been only an error committed on the part of the trial court in exercising his judgment and applying the law to the case, rather than an excess of jurisdiction in acting in a matter wherein he had not acquired jurisdiction to act or wherein his court has no jurisdiction of the subject in litigation. . . . The court had the jurisdiction, power, and authority to hear and determine that question. It accordingly did so. If the court committed an error in deciding the question thus presented, we answer that the court had jurisdiction to commit the error." Although certiorari may be considered a direct attack upon a judgment as distinguished from a collateral attack, nevertheless, under the laws of these Islands the only ground for the issuance of certiorari being the failure of jurisdiction of the inferior tribunal, the basis of the direct attack upon the judgment becomes in this jurisdiction the same as for collateral attack, inasmuch as, generally speaking, a collateral attack against a judgment is sustainable only when the judgment is void for lack of jurisdiction in the court to pronounce it. Therefore the authorities relative to the ground necessary for a successful collateral attack upon a judgment are authorities in a large sense, pertinent to a discussion as to when a court may be held to have acted without or in excess of jurisdiction. In the case of Cooper vs. Reynolds (10 Wall., 308), the court said: "It is of no avail, therefore, to show that there are errors in the record, unless they be such as prove that the court had no jurisdiction of the case, or that the judgment rendered was beyond its power. This principle has been often held by this court and by all courts, and it takes rank as an axiom of the law." In the case of Cornett vs. Williams (30 Wall., 226), it was declared that "the settled rule of law is, that jurisdiction having attached in the original case, everything done within the power of that jurisdiction, when collaterally questioned, is to be held conclusive of the rights of the parties, unless impeached for fraud." These two cases were cited and approved in the case of Manson vs. Duncanson (166 U. S., 533), wherein the court said: "When a court has jurisdiction it has right to decide every question that may arise in the cause; and whether its decisions be correct or not, its judgment, until reversed, is regarded as binding in every other court. These principles apply in all respects and with special force in this case. It was for the court whose decree is attempted to be impeached, not only to decide on the facts before it, but upon the construction and legal effect of all deeds and muniments of title upon which the proceeding was based. The court having general jurisdiction over the subject matter of decreeing the sale of real estate of a deceased debtor and for the payment of debts, it had the right and was required to determine the question as to the liability of the property for the debts, and whether the case was within its jurisdiction; and though its decision may have been erroneous, it could only be reversed upon a direct appeal." See Shepard vs. Adams, 168 U. S., 618; Gunn vs. Plant, 94 U. S., 664; Parker vs. Kane, 22 Howard, 1; Huff vs. Hutchinson, 14 Howard, 586; Thompson vs. Tolmie, 2 Pet., 157; Hatcher vs. Hendrie, 68 C. C. A., 19.

See also, the long list of authorities cited as sustaining this doctrine in 23 Cyc., 1090, where the rule is stated as follows: "Where a court has jurisdiction of the parties and the subject matter, its judgment, although irregular in form, or erroneous or mistaken in law, is conclusive, as long as it remains unreversed and in force, and cannot be impeached collaterally." In the case of Miller vs. Rowan (251 Ill., 344), the court said: "A judgment or decree is not binding upon anyone unless the court rendering the same had jurisdiction of the parties and the subject matter of the cause. The court did have jurisdiction of the parties, and the appellant, who is disputing the binding effect of the decree, was one of the complainants. Jurisdiction of the subject matter is the power to adjudge concerning the general question involved, and if a bill states a case belonging to a general class over which the authority of the court extends, the jurisdiction attaches and no error committed by the court can render the judgment void. It the court has jurisdiction, it is altogether immaterial, when the judgment is collaterally called in question, how grossly irregular or manifestly erroneous its proceedings may have been. The judgment cannot be regarded as a nullity, and cannot, therefore, be collaterally impeached. Such a judgment is binding on the parties and on every other court unless reversed or annulled in a direct proceeding and is not open to collateral attack. If there is a total want of jurisdiction in a court its proceedings are an absolute nullity and confer no right and afford no protection but will be pronounced void when collaterally drawn in question. (Buckmaster vs. Carling, 3 Scam., 104; Swiggart vs. Harber, 1 id., 364; People vs. Seelye, 146 Ill., 189; Clark vs. People, 146 id., 348; O'Brien vs. People, 216 id., 354; People vs. Talmadge, 194 id., 67.)" Trombly vs. Klersy (146 Mich., 648); Chapman vs. Taliaferro (1 Ga. App., 235); Smith vs. Schlink (44 Colo., 200), where the court said: "That the court had jurisdiction of the parties and the subject matter cannot be questioned. This being true, and it not appearing that the judgment was not within the issues presented by the pleadings, however, erroneous it may be, the judgment cannot be held to be void, so as to bring this case within the rule that disobedience of a void decree does not constitute contempt of court." Baldwin vs. Foster (157 Cal., 643), where the court said: Throughout this consideration the fact is to be borne in mind that we are not reviewing this judgment under attack made on direct appeal where errors prejudicial to those appealing would call for a reversal, but we are considering it upon collateral attack, where every intendment is in favor of the judgment and where mere errors and irregularities will not be considered. Upon collateral attack the judgment will be set aside, generally speaking, for but one of three reasons: Lack of jurisdiction of the person, lack of jurisdiction of the subject matter of the action, or an absolute lack of jurisdiction to render such a judgment as the one given. (Moore vs. Martin, 38 Cal., 428; Mayo vs. Foley, 40 Cal., 281; In re James, 99 Cal., 374; 37 Am. St. Rep., 60; 33 Pac., 1122; Wood vs. Jordan, 125 Cal., 261; 57 Pac., 997.) Goodman vs. City (164 Fed., 970); Sawyer vs. Kelly (148 Iowa., 644); Lucy vs. Deas (59 Fla., 552). That certiorari will lie only in case of failure of jurisdiction has been consistently held by this court. The following are substantially all of the cases decided by this court referring to certiorari or prohibition. We include those referring to prohibition for the reason that the ground of its issuance is the same as that in certiorari, viz, lack or excess of jurisdiction: In the case of In re Prautch (1 Phil. Rep., 1 32), the court said: "Under the provisions of the code in certiorari proceedings, it is necessary that it would appear both that the inferior court has exceeded its jurisdiction and that there is no appeal from such court." In his concurring opinion Judge Willard says: "Considering the existence of facts which may confer jurisdiction, the question of whether those facts are presented in such a manner in the affidavit as to invoke the exercise of this jurisdiction is one which the court has the same right to determine as it would have in the decision of any other questions which might arise in a matter within its recognizance. In the exercise of this power it may issue an erroneous order, but such an order is not absolutely void; unless it is remedied during the same action by means of an appeal or otherwise, it will have the effect of a valid order. The Court of First Instance should not

give a judgment upon a complaint on a promissory note which does not state a cause of action, but if it does so its judgment is valid unless it is reversed by means of appeal. We cannot defer to any decision of the supreme court of California which sustains a contrary doctrine. Article 528, already cited, establishes the law of these Islands, and we must submit to that. To accept the other rule would be to convert the writ of habeas corpus into a writ of error, a thing which is in no wise permissible. It would make it possible for any defendant by means of such writ to interpose an appeal to this court in all those cases in which an order of arrest should be issued and would oblige us to review the errors of law which are alleged to have been committed by the court in investigating the sufficiency of the affidavit, and this is, in our opinion the very practice which article 528 seeks to avoid." In the of Reyes vs. Roxas (1 Phil. Rep., 625), the court held that the refusal to hear witnesses offered by the defense in a criminal action might constitute error, but was not an excess of jurisdiction to be remedied by certiorari, the court saying: "The complaint in this case does not allege that the court which convicted the petitioner had no jurisdiction to try the case. Neither does it allege that in the prosecution of the case there has been any affirmative action by the judge outside of his jurisdiction. It simply alleges that he has failed to take action; that he has refused to hear the witnesses for the defendant. This, if true, would constitute error, but it would be error committed by the judge in the exercise of a jurisdiction which he possessed. The remedy by certiorari does not apply to this case." In the case of Dy Chuan Leng vs. Amber (1 Phil. Rep., 535), the court said: "We cannot grant an injunction under this section unless there is a compliance with article 164 and 166. It must appear from the complaint that the plaintiff is entitled to recover in the action. If the complaint states no cause of action no preliminary injunction can be issued. The complaint filed in this court is defective in this respect. It shows upon its face that the petitioner are not entitled to an order of prohibition against the court below. That court had jurisdiction of the action to dissolve the partnership. In that action it had the power to grant a preliminary injunction (art. 164), and to appoint a receiver (art. 174). Having those powers, if in the exercise of them any errors were committed, they could be corrected only on appeal from the final judgment. The facts as alleged, that the complaint was ambiguous; that the judge believed that the plaintiff below was a partner when the defendants denied it; that he fixed the bonds at $1,000 instead of $30,000, as requested by the defendants; that no mention of the bond was made in the writ of injunction; that he refused to hear the defendants' witnesses; that he refused to dissolve the injunction upon a bond which the defendants offered to give, all of these do not show that the court was acting outside of its jurisdiction. They simply show, if they are true, that the court has committed certain errors in exercising its jurisdiction, errors which must be corrected by appeal." In the case of Ivancich vs. Odlin (1 Phil. Rep., 284), the court said at page 287: "The ground upon which the second prohibition is sought is that the attachment ordered by the court is not such an attachment as is authorized by articles 424 et seq. of the Code of Civil Procedure of the Philippine Islands, but on the contrary is an attachment under a procedure not in force here, although it is in force in the United States of America in maritime cases, and that the attachment, moreover, was levied without affidavit, bond, or any of the securities established by law whereby the owners of the steamer can obtain reparation for any damages which may be occasioned them by the unlawful detention of the said steamer; and that the procedure of the court below is devoid of all the formal requisites established by law for the levying of such attachments. xxx xxx xxx

The judge, did not, therefore, act without jurisdiction when directing the attachment of the vessel in question, and has not exceeded his jurisdiction. If the excess of jurisdiction upon which the argument was based consists in his having levied the attachment without the fulfillment of the necessary conditions and without following the form prescribed by some law of procedure applicable to the case, it is our opinion that this error is not such an excess of jurisdiction as can be secured by prohibition, and the petitioner has other means whereby this error or procedure may be corrected or remedied. Upon these grounds we decide that the petition for a writ of prohibition must be denied, with the costs to petitioner, and it is so ordered.

In the case of Araneta vs. The Heirs of Tranquilino Gustilo (2 Phil. Rep., 60), this court said: "This is a petition for a writ of certiorari to review the action of the Court of First Instance of Occidental Negros in requiring a supersedeas bond under section 144 of the Code of Civil Procedure. It does not appear from the petition what the amount involved in the litigation is, nor on what sum that bond was fixed by the court, but it is alleged that the bond is excessive. The court below had jurisdiction to require the bond as a condition of a stay of execution, and to fix its amount. Assuming that the bond was excessive, yet nothing is alleged in the petition which shows that the court exceeded its jurisdiction in the premises or committed any irregularity in its proceedings in exercise thereof. The writ must therefore be denied." In the case of Springer vs. Odlin (3 Phil. Rep., 344), the court said: "The court, on the 30th of May, after hearing both parties, made an order by which it was adjudged that the claim of CoBanco had a preference over the claim of Springer and ordered the money in the custody of the clerk to be believed to Co-Blanco, but requiring him to execute a bond for the sum of P400 with sureties for the protection of Springer in case he appealed to the Supreme Court to annul the order. The plaintiff, Springer, alleges in his application for certiorari that the Court of First Instance acted without jurisdiction in making this order of the 30th day of May, 1903; that not being a party in the cause of the United States vs. Catalino Mortes, he has no right to appeal nor has he any plain, speedy, and adequate remedy from the order; and further alleging that Co-Banco had no lien upon the P259.50 in dispute, either by attachment or by execution; nor did the said Co-Blanco on the date of the making of the order in his favor have any right of any other character upon said money. If the Court of First Instance had jurisdiction to render the judgment of the 13th day of May, 1903, in favor of Co-Banco in the case of the United States vs. Catalino Mortes, and in the proceeding in which Springer intervened resulting in the order of May 30, or if the plaintiff, Springer, had any plain, speedy, and adequate remedy by a bill of exceptions, appeal, or otherwise from the order of the 30th day of May, 1903, by which the money in question was directed to be paid to Co-Banco, then the proceeding in certiorari will not lie. In the case of Felizardo vs. Justice of the Peace of Imus (3 Phil. Rep., 635), the court said: "Attorneys Pineda and Escueta, on behalf of Flaviano Felizardo and Francisca Felizardo, upon the facts stated by their complaint, dated April 4, 1904, and upon the ground that there was no other speedy and adequate remedy in the ordinary course of law, pray for an order dissolving the attachment levied upon the property of the petitioners, and that a writ issue to the justice of the peace of Imus, requiring him to absolutely refrain from all further proceedings until a final decision is rendered upon the complaint. By intervening in the suit result in which the attachment was levied, the parties may avail themselves of all the legal remedies provided for the defense of their lawful rights, but cannot avail themselves of the writ of prohibition for the purpose of obtaining a discharge of attachment complained of. The case is one which pertains exclusively to the jurisdiction of the judge who is trying it, and there is no authority of law for interference with the proceedings. In the case of Rubert & Guanis vs. Sweeney (4 Phil. Rep., 473), the court said: "The court below had jurisdiction of the subject matter of that suit and of the parties thereto. It had power by law to grant an injunction in the case and power to dissolve it or modify it. There can be no doubt of the correctness of these propositions, but it is claimed by the plaintiff in this suit that the stipulation made between the parties to the suit below to the effect that the sheriff should hold the money until the final judgment in that case, deprived the court of jurisdiction to make the order modifying the injunction and requiring to sheriff to pay the money to the defendant Lo Shui upon his furnishing a proper bond. When section 516 of the Code of Civil Procedure speaks of a tribunal exercising functions which are without or in excess of its jurisdiction, it covers those cases only in which such tribunal acts without or in excess of the jurisdiction conferred upon it by law. It has no reference to cases where it is claimed that such tribunal acts in excess

of jurisdiction which the parties may have attempted by stipulation to confer upon it, or in excess of a jurisdiction to which the parties may by stipulation have attempted to limit the court. The fact that the judge may have committed an error in disregarding the stipulation of the parties has nothing to do with the question of the jurisdiction which by law the judge was authorized to excess. If there was such error in the action of the court below, it was an error that must be corrected by appeal. An action of prohibition cannot be maintained in such cases. (Citing cases.) There is nothing in the case of Yangco vs. Rohde (1 Phil. Rep., 404), relied upon by the plaintiff, in conflict with this rule. As was stated in the case of Dy Chuan Leng vs. Amber above cited, the writ of prohibition was there granted upon the ground that in no case where the fact of marriage was denied did the Court of First Instance have any jurisdiction to grant temporary alimony. In the case of Castao vs. Lobinger (7 Phil. Rep., 91), the court said: "The concrete questions raised by the parties to these proceedings are (1) whether or not the judge of the Court of First Instance of Leyte had power to issue an injunction against the justice of the peace of Manila in an action pending in his court, and (2) whether the judge of the said Court of First Instance of Leyte could entertain a petition for a writ of certiorari against the said justice of the peace of the city of Manila. xxx xxx xxx

The judge of the Court of First Instance of Leyte had no jurisdiction over the judge of the peace of the city of Manila, and were a judge of the Court of First Instance permitted to grant such extraordinary remedies against a justice of the peace in a district or province other than his own, it would be a serious interference with the proper administration of justice, and a procedure relating to appeals from and other remedies against the judgments of inferior courts would be subverted. It should be borne in mind that the enforcement of the laws jurisdiction of the various courts, concerns the interests of the community at large. The judge of the Court of First Instance of Leyte had no power to take cognizance, on appeal, of a case originally tried in the justice court of the city of Manila, nor has he the power to take cognizance of cases that should ordinarily be tried in the Court of First Instance of Manila, unless by virtue of a special commission. Nor has he the power to issue writs of injunction in connection wit other special and extraordinary remedies sought from the decisions of said justice of the peace. In the case of Herman vs. Crossfield (7 Phil. Rep., 259), the court said: "After the term at which judgment was rendered, a Court of First Instance made an order opening the case for the introduction of additional evidence, the motion therefore having been made and argued during said term. Held, That such order was not void because made after the close of said term and that it could not be reviewed on certiorari." The court at page 261 said: "Whether the order made on the 14th of April was right or wrong is not before us for decision. The court had jurisdiction to decide the motion, even if it were a motion for a new trial, a point which we do not determine. If it decided it incorrectly, the plaintiff who was the defendant in that case, had the right to except to the order and, although he could not bring the case here at once for decision because that order was not a final judgment, yet he could do so after final judgment had been entered and could then have the order in question reviewed." In the case of Somes vs. Crossfield (8 Phil. Rep., 284), the action was one of certiorari. The court said: "The plaintiff, in an action brought by himself in the Court of First Instance of Manila, made a motion for a preliminary injunction restraining the defendants from selling certain property upon execution. After a hearing upon the motion, the court after saying that the plaintiff was not entitled to the preliminary injunction, made the following order: "According, the petition for a preliminary writ of prohibition is denied, and it is hereby further ordered that the proceeds of the sales under the executions already issued, and pending, either in this court or in the hands

of the sheriff of the Province of Albay, be deposited in this court, subject to the further orders thereof, upon a bond of P10,000 being filed by the plaintiff to answer for any loss resulting from the failure to apply said proceeds as ordered in the execution issued." The plaintiff thereupon commenced this original action of certiorari in this court, claiming that the court below, in making the order in question, exceeded its jurisdiction. The defendants have demurred to the complaint, and the case is now before us for decision upon such demurrer. xxx xxx xxx

That the court below did not exceed its jurisdiction in making that order is free from doubt. (Rubert & Guamis vs. Sweeney, 4 Phil. Rep., 473.) In the case of Artacho vs. Jenkins (11 Phil. Rep., 47), the court said at page 48: "It is alleged in the complaint that, in ordering the issue of a second execution, the defendant judge exceeded his jurisdiction and that such order was absolutely void. This contention cannot be sustained. The court of Pangasinan had jurisdiction of the case of Tan Chu Chay against the plaintiff Artacho, jurisdiction both of the parties and of the subject matter, and the mere fact that some creditor of Tan Chu Chay had attached the debt due from Artacho to the former did not oust that court from its jurisdiction to proceed with the case. (See among other cases decided by this court: Rubert & Guamis vs. Sweeney, 4 Phil. Rep., 473; Somes vs. Crossfield, 8 Phil. Rep., 284; and Yambert vs. McMicking, 10 Phil. Rep., 95.)" In the case of Lagahit vs. Nengasca and Wislizenus (12 Phil. Rep., 423), the action was one of certiorari. The action in the court below was one over a contested election. The court, speaking through Mr. Chief Justice Arellano, said: "Whether or not the below acted rightly in considering the other candidate as the 'adverse party' and the party defeated in the proceedings is not a matter on which action may be taken by this court in the exercise of its appellate jurisdiction. It is evident that it was a matter within the jurisdiction of the court below to tax the 'adverse party' with the costs. The remedy of certiorari is, therefore, not available, as the purpose thereof is to prevent and remedy extra limitations of jurisdiction and authority, not to correct errors in decisions or mistakes of law, which are proper subjects for appeal and cassation. The first finding is perfectly in accordance with the provision of the law. The court below in deciding upon the protest against the contested election for president of Aloguisan said: 'The court believes that the majority of the electors at the present election voted in favor of the petitioner, Simeon Nengasca.' Whether or not this opinion of the court below is proper cannot be the subject or review by this court. It is a decision which is within the jurisdiction of the lower court as conferred by law. As a result of this opinion of the court below, and in compliance with the provision of the law, the judgment should have been: "Let a writ of mandamus be issued against the board of canvassers requiring the board to correct its canvass in accordance with the facts as found." For the reason above set forth we decide that the order of the Court of First Instance of Cebu recognizing Nengasca as president-elect at the elections in the municipality of Aloguisan, in said province, should be, and is hereby annulled for the reason that it is not within the jurisdiction of the said court to recognize or proclaim a president in a contested election. The action of Ocampo vs. Jenkins (14 Phil. Rep., 681), was one of prohibition. It was held there: "The fact that an appeal is pending in the Supreme Court in a criminal case for libel, under Act No. 277 of the Philippine Commission, does not prevent the prosecution of a civil action for damages under the same Act, which clearly recognizes two distinct actions upon the theory that there are two separate and distinct injuries received from the crime, one by the State and the other by the individual damaged by the libel. In such a case, therefore, a petition for a writ of prohibition enjoining the prosecution of the civil suit while the criminal appeal is pending will be denied."

There are certain cases like Lagahit vs. Nengasca and Wislizenus above cited wherein the court has held that certiorari would lie. In the case of Encarnacion vs. Ambler (3 Phil. Rep., 623), the court said at page 624: "In the case of Eugenio Bonaplata vs. Byron S. Ambler et al. (2 Phil. Rep., 392), which involved the validity of the appointment of Antonio Torres as receiver of the estate of Tan-Tonco in the said cause of Sergia Reyes vs. Fulgencio Tan-Tonco, it was held by this court that section 174 of the Code of Civil Procedure, under which the appointment of the receiver was made, did not authorize the appointment; that no property belonging to Fulgencio Tan-Tanco was the subject of litigation in the case of Sergia Reyes vs. Tan-Tonco; nor did the case fall within either of the other subdivisions of section 174; that the placing of the property of the defendant in said cause in the hands of the receiver for the purpose, after praying fees and expense of distributing the property among the creditors, was practically a bankruptcy proceeding; that there are no bankruptcy laws in force in these Islands; that bankruptcy proceedings have been expressly forbidden by section 524 of the Code of Procedure in Civil Actions until a law shall be enacted; and that consequently the Court of First Instance acted in excess of its jurisdiction in appointing Antonio Torres receiver in said action. We adhere to the views expressed in the decision of this court in the said case of Eugenio Bonaplata vs. Byron S. Amber et al." In the case of United States vs. Siatong (5 Phil. Rep., 463), the court said: "Without its being our purpose to decide if the remedy or certiorari invoked by the provincial fiscal is proper in this case or not, we cannot admits his petition on account of its not being made in due form. The remedy of certiorari should be petitioned for by formal complaint having all of the requirements prescribed by the Code of Procedure in Civil Actions, and the petition formulated by the fiscal in the form of a brief in a criminal cause does not come up to these requirements, for which reason it is set aside in accordance with law." In the case of Rocha & Co. vs. Crossfield (6 Phil. Rep., 355), the court, on page 358, after quoting the section of the Code of Civil Procedure relating to cases in which a receiver may be appointed, said: "The case at bar does not fall within any of the provisions of this section. There is no allegation in the complaint, as has been before stated, that the plaintiff is the owner of any of the property of Rocha & Co., nor is there any allegation that he has any lien thereon, nor are there any facts alleged in the complaint from which it could be inferred that he was the owner of such property of had any lien thereon. On the contrary, from the facts that are alleged in the complaint it would seem that his separation from the partnership of Carman & Co. left that partnership as a going concern and did not dissolve it. The effect of the provisions of the articles of partnership which are referred to in the complaint is that after the withdrawal of any partner the remaining partners became the owner of all the assets of the partnership and he became a general creditor of the partnership. xxx xxx xxx

The case not being one in which a receiver could be appointed, the order making such appointment was void and was beyond the jurisdiction of the court, although that court had jurisdiction of the main action has been settled adversely to the defendants in this suit by the case of Bonaplata vs. Amber (2 Phil. Rep., 392; see also Encarnacion vs. Amber, 3 Phil. Rep., 623; Findlay & Co. vs. Amber, 3 Phil. Rep., 690). That certiorari is the proper remedy in such cases was decided in the case of Blanco vs. Amber (3 Phil. Rep., 358, 735). In the argument in this court it was claimed that this extraordinary remedy would not, lie because the plaintiff, Rocha & Co., had a right to appeal from the order appointment a receiver, although that appeal could not be taken until a final judgment had been entered in the case. That argument is answered by what is said in the case of Yangco vs. Rohde (1 Phil. Rep., 404)." In the case of Baes vs. Cordero (13 Phil. Rep., 466), the court said: "And, if the jurisdiction has not been exceeded, there is not nor could there be any legal ground for the issuance of the writ of certiorari, because these proceedings can only exclusively be granted to remedy abuses committed in the exercise of a power or jurisdiction. Sections 217 and 514 of the Code of Civil

Procedure providing for such relief unequivocally and specifically refer to the act of exceeding or going beyond the jurisdiction; and this court has repeatedly held that, in order that certiorari may issue, it is absolutely necessary to show that the respondent has exceeded his power or jurisdiction. (In re Prautch, 1 Phil. Rep., 132; De los Reyes vs. Roxas, 1 Phil. Rep., 625; Springer vs. Odlin, 3 Phil. Rep., 344.)" In the case of Arzadon vs. Chanco (14 Phil. Rep., 710); the court decided as follows: " Certiorari is the proper remedy whenever an inferior tribunal, board, or officer exercising judicial functions has exceeded its or his jurisdiction, and no appeal, nor any plain, speedy, and adequate remedy exists to correct such excess or extra limitation. (Secs. 217 and 514, Code of Civil Procedure). The jurisdiction of Courts of First Instance to hear and decide election contests is exclusive and final (sec. 27 of the Election Law); consequently, decisions rendered by them in the exercise of said jurisdiction cannot be reviewed by means of an appeal. As they are not appealable and as against them no other plain, speedy and adequate remedy exists, it is evident that they constitute a proper subject for the extraordinary remedy of certiorari. Therefore, if the court below has exceeded his jurisdiction in rendering the above-cited decision it is proper to annul and the same by virtue of said proceedings." In that case the Court of First Instance made the following order: "By the foregoing, Silvestre Arzadon appears to have violated the provisions of the Election Law which prohibit every action, influence, and promise of any kind, for the purpose of obtaining votes. These should indicate the free will of the voters, and for such infractions his election for the office of municipal president of the town of Badoc must be considered illegal. Therefore, it is declared by the court that the election of Silvestre Arzadon for the office of president, held on the 15th day of November last in the municipality of Badoc, Ilocos Norte, was not legal, and another special election for the said office must be held at the expense of the said Arzadon who shall not then be eligible, and any vote entered in his favor shall not count; the costs and expenses of these proceedings shall also be charged to him. In respect to that order the Supreme Court said: "It is our opinion that he has so exceeded his jurisdiction. The jurisdiction of Courts of First Instance hear election protests is conferred upon them by the aforesaid section 27 of the Election Law, and neither the said section, nor any other legal provision, authorizes the court, in deciding such protests, to declare ineligible in future elections the person against whom the protests was presented, nor to sentence him to pay the expenses of the new election to be held. Hence, the court below had no power to enter such rulings in the case as gave rise to these proceedings, and in consequence there of said rulings must be entirely annulled." See also Topacio vs. Paredes (23 Phil. Rep., 238). The case of Yangco vs. Rohde (1 Phil. Rep., 404) was one relating to the allowance of alimony pending the trial of an action for a divorce. The court below allowed alimony although the answer denied the marriage. Prohibition was brought in this court, and after hearing, the lower court was enjoyed from levying and collecting alimony. The court said at page 414: "The court below had jurisdiction to try the divorce suit, but he was without jurisdiction to grant alimony when the right to claim alimony had not accrued in accordance with the provisions of the Civil Code. This code only grants the right to alimony to a wife. This status not appearing by a final judgment, the court is without jurisdiction to make any order in the matter." See also U. S. vs. Crossfield (24 Phil. Rep., 321); Young Wampo vs. Collector of Customs (id., 431). The reasons given in these cases last cited for the allowance of the writ of prohibition are applicable only to the class of cases with which the decisions deal and do not in any way militate against the general proposition herein asserted. Those which relate to election contests are based upon the principle that those proceedings are special in their nature and must be strictly followed, a material departure from the statute resulting in a loss, or in an excess, of jurisdiction. The cases relating to receivers are based, in a measure, upon the same principle, the appointment of a receiver being governed by the statute; and in part upon the theory that the

appointment of a receiver in an improper case is in substance a bankruptcy proceeding, the taking of which is expressly prohibited by law. The case relative to the allowance of alimony pendente lite when the answer denies the marriage is more difficult to distinguish. The reasons in support of the doctrine laid down in that case are given in the opinion in full and they seem to place the particular case to which they refer in a class by itself. It is not light thing that the lawmakers have abolished writs of error and with them certiorari and prohibition, in so far as they were methods by which the mere errors of an inferior court could be corrected. As instrument to that end they no longer exist. Their place is now taken by the appeal. So long as the inferior court retains jurisdiction its errors can be corrected only by that method. The office of the writ of certiorari has been reduced to the correction of defects of jurisdiction solely and cannot legally be used for any other purpose. It is truly an extraordinary remedy and, in this jurisdiction, its use is restricted to truly extraordinary cases cases in which the action of the inferior court is wholly void; where any further steps in the case would result in a waste of time and money and would produce no result whatever; where the parties, or their privies, would be utterly deceived; where a final judgment or decree would be nought but a snare and a delusion, deciding nothing, protecting nobody, a judicial pretension, a recorded falsehood, a standing menace. It is only to avoid such results as these that a writ of certiorari is issuable; and even here an appeal will lie if the aggrieved party prefers to prosecute it. A full and thorough examination of all the decided cases in this court touching the question of certiorari and prohibition fully support the proposition already stated that, where a Court of First Instance has jurisdiction of the subject matter and of the person, its decision of any question pertaining to the cause, however erroneous, cannot be reviewed by certiorari, but must be corrected by appeal. It must be remembered that the people of the Philippine Islands may go to the Court of First Instance to require a public officer to perform his duties; and they have the right to have that court pass upon the whole case and upon every phase thereof and upon every question arising therein. This right is conferred by statute. It would be respected by the courts as well as by others. It would be manifestly illegal, as it would be flagrantly unjust, so long as the court acts within its jurisdiction, to withdraw from the Court of First Instance the consideration of that case under color of any proceeding whatever. As long as the court is considering that case, its right and the rights of the litigants to continue to final determination are inviolate. The fact that another action may have been pending involving the same subject matter and even between the same parties, which was not the fact in this case, does not touch the jurisdiction of the court to act. We cannot leave the case without suggesting that the applicant herein, before coming to this court, should, as the better practice, have made the proper application to the Court of First Instance for a dissolution or modification of the mandatory injunction, and thereby given that court an opportunity, after full argument of counsel and citation of authorities, to pass upon the question of his power and jurisdiction and, even, the correctness and propriety of his action, should power and jurisdiction be found by the court to exist. Questions which Courts of First Instance are required by law to decide should not be summarily taken from them and presented to this court without first giving them an opportunity of deliberately passing on such questions themselves. The most natural and proper thing to do, when such court, in the judgment of one of the parties, has issued an injunction erroneously, is immediately to call the attention of that court to its supposed error and ask for its correction. The strongest reasons of policy and courtesy if not actual legal rights itself, require such procedure; and we discourage all attempts to come to this court upon questions which a court below is entitled to decide without first invoking its judgment thereon. There are special reasons for following this course in cases where the court has acted ex parte. The writ is denied and the proceeding is dismissed. So ordered.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. L-40527 June 30, 1976 PEOPLE OF THE PHILIPPINES, petitioner, vs. HERMOGENES MARIANO and HON. AMBROSIO M. GERALDEZ, in his capacity as Presiding Judge of the Court of First Instance of Bulacan, Branch V, respondents. Solicitor General Estelito P. Mendoza, Assistant Solicitor General Nathanael P. Pano, Jr., Solicitor Oswaldo D. Agcaoili, Provincial P.C. Kliachko and Assistant Provincial Fiscal C. G. Perfecto for petitioner. Eustaquio Evangelista for respondent Hermogenes Mariano.

with a total value of $717.50 or P4,797.35, involving the duty of making delivery of said items to the said Municipal Mayor, but the said accused Hermogenes Mariano once in possession of the said items and far from complying with his aforesaid obligation and in spite of repeated demands, did then and there wilfully, unlawfully and feloniously, with grave abuse of confidence and with deceit, misappropriate, misapply and convert to his own personal use and benefit the said items valued at $717.50 or P4,797.35, belonging to the said USAID/NEC, to the damage and prejudice of the said owner in the said sum of $717,50 or P4,797.35. (pp. rollo). On February 19, 1975, Hermogenes Mariano thru his counsel Filed a motion to quash the Information on the following grounds: 1. That the court trying the cause has no jurisdiction of the offense charged or of the person of the defendant; 2. That the criminal action or liability has been extinguished; 3. That it contains averments which , if true, would constitute a legal excuse or justification. (p. 19, rollo) In his motion to quash, Mariano claimed that the items which were the subject matter of the Information against him were the same items for which Mayor Constantino A. Nolasco of San Jose del Monte, province of Bulacan, was indicted before a Military Commission under a charge of malversation of public property, and for which Mayor Nolasco had been found guilty and sentenced to imprisonment at hard labor for ten (10) years and one (1) day to fourteen (14) years and eight (8) months with perpetual disqualification plus a fine of P19,646.15 (see pp. 23-24, rollo), and that inasmuch as the case against Mayor Nolasco had already been decided by the Military Tribunal, the Court of First Instance of Bulacan had lost jurisdiction over the case against him. (pp. 19-20, Ibid) On March 14, 1975 respondent Judge issued an Order granting the motion to quash on the ground of lack of jurisdiction reasoning as follows: Considering that the Military Commission had already taken cognizance of the malversation case against Mayor Nolasco involving the same subject matter in its concurrent jurisdiction with this Court, the case involving the subject properties had already been heard and decided by a competent tribunal, the Military Commission, and as such this Court is without jurisdiction to pass upon anew the same subject matter. (pp. 30-31, rollo, emphasis supplied) Respondent Judge did not rule on the other grounds invoked in the motion to quash. The people now seeks a review of the aforesaid Order and presents the sole issue of jurisdiction of respondent Court over the estafa case filed against respondent Mariano. "Jurisdiction" is the basic foundation of judicial proceedings. The word "jurisdiction" is derived from two Latin words "juris" and "dico" "I speak by the law" which means fundamentally the power or capacity given by the law to a court or tribunal to 3 entertain, hear, and determine certain controversies. Bouvier's own definition of the term "jurisdiction" has found judicial acceptance, to wit: "Jurisdiction is the right of a

MUOZ PALMA, J: This petition for certiorari postulates a ruling on the question of whether or not civil courts and military commissions exercise concurrent jurisdiction over the offense of estafa of goods valued at not more than six thousand pesos and allegedly committed 1 by a civilian. On December 18, 1974, the office of the Provincial Fiscal of Bulacan filed an Information (Criminal Case No. SM-649) accusing private respondent herein Hermogenes Mariano of estafa alleged to have been committed as follows: That on or about and during the period from May 11 and June 8, 1971, in the municipality of San Jose del Monte, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said accused Hermogenes Mariano, being then appointed as Liaison Officer by the then incumbent Municipal Mayor, Constantino Nolasco, acting for and in behalf of the municipality of San Jose del Monte, Bulacan and authorized to receive and be receipted for US excess property of USAID/NEC for the use and benefit of said municipality, received from the said USAID/NEC the following items, to wit: 150 ft. electric cable valued at $15 or P100.50 525 ft. cable power valued at $577-50 or P3,859.35 250 ft. electric cable at $125.00 or P837.50

Judge to pronounce a sentence of the law in a case or issue before him, acquired through due process of law;" it is "the authority by which judicial officers take 4 cognizance of and decide cases." In Herrera vs. Barretto, September 10, 1913, 25 Phil. 245, 251, this Court, in the words of Justice Moreland, invoking American jurisprudence, defined "jurisdiction" simply as the authority to hear and determine a cause the right to act in a case. "Jurisdiction" has also been aptly described as the right to put the wheels of justice in notion and to proceed to the final determination of a cause upon the pleadings and 5 evidence. "Criminal Jurisdiction" is necessarily the authority to hear and try a particular offense 6 and impose the punishment for it. The conferment of jurisdiction upon courts or judicial tribunals is derived exclusively from the constitution and statutes of the forum. Thus, the question of jurisdiction of respondent Court of First Instance over the case filed before it is to be resolved on the basis of the law or statute providing for or defining its jurisdiction. That, We find in the Judiciary Act of 1948 where in its Section 44 (f) it is provided: SEC. 44. Original jurisdiction. Courts of First Instance shall have original jurisdiction: xxx xxx xxx (f) In all criminal cases in which the penalty provided by law is imprisonment for more than six months, or a fine of more than two hundred pesos, (emphasis supplied) The offense of estafa charged against respondent Mariano is penalized with arresto mayor in its maximum period to prision correccional in its minimum period, or imprisonment from four (4) months and one (1) day to two (2) years and four (4) 7 months. By reason of the penalty imposed which exceeds six (6) months imprisonment, the offense alleged to have been committed by the accused, now respondent, Mariano, falls under the original jurisdiction of courts of first instance. The above of course is not disputed by respondent Judge; what he claims in his Order is that his court exercises concurrent jurisdiction with the military commission and because the latter tribunal was the first to take cognizance of the subject matter, respondent court lost jurisdiction over it .That statement of respondent court is incorrect. In People vs. Fontanilla, this Court speaking through then Justice now Chief Justice Fred Ruiz Castro, categorically reiterated the settled rule that the jurisdiction of a court is determined by the statute in force at the time of the commencement of the 8 action. In the case at bar, it is rightly contended by the Solicitor General that at the time Criminal Case No. SM-649 was filed with the Court of First Instance of Bulacan, that was December 18, 1974, the law in force vesting jurisdiction upon said court was the Judiciary Act of 1948, the particular provision of which was not affected one way or the other by any Presidential issuances under Martial Law. General Order No. 49 dated October 4, 1974, which repeals General Order No. 12 and the latter's amendments and related General Orders inconsistent with the former, redefines the jurisdiction of military tribunals over certain offense, and estafa and malversation are 9 not among those enumerated therein. In other words the Military Commission is not 9 vested with jurisdiction over the crime of estafa. *

Respondent court therefore gravely erred when it ruled that it lost jurisdiction over the estafa case against respondent Mariano with the filing of the malversation charge against Mayor Nolasco before the Military Commission. Estafa and malversation are two separate and distinct offenses and in the case now before Us the accused in one is different from the accused in the other. But more fundamental is the fact that We do not have here a situation involving two tribunals vested with concurrent jurisdiction over a particular crime so as to apply the rule that the court or tribunal which first 10 takes cognizance of the case acquires jurisdiction thereof exclusive of the other. The Military Commission as stated earlier is without power or authority to hear and determine the particular offense charged against respondent Mariano, hence, there is no concurrent jurisdiction between it and respondent court to speak of. Estafa as described in the Information filed in Criminal Case No. SM-649 falls within the sole exclusive jurisdiction of civil courts. PREMISES CONSIDERED, the appealed Order dated March 14, 1975, is set aside and respondent Judge is directed to proceed with the trial of Criminal Case No. SM649 without further delay. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 174689 October 22, 2007

On June 4, 2003, the trial court rendered a decision4 in favor of petitioner. Its relevant portions read: Petitioner filed the present petition not to evade any law or judgment or any infraction thereof or for any unlawful motive but solely for the purpose of making his birth records compatible with his present sex. The sole issue here is whether or not petitioner is entitled to the relief asked for. The [c]ourt rules in the affirmative. Firstly, the [c]ourt is of the opinion that granting the petition would be more in consonance with the principles of justice and equity. With his sexual [re-assignment], petitioner, who has always felt, thought and acted like a woman, now possesses the physique of a female. Petitioners misfortune to be trapped in a mans body is not his own doing and should not be in any way taken against him. Likewise, the [c]ourt believes that no harm, injury [or] prejudice will be caused to anybody or the community in granting the petition. On the contrary, granting the petition would bring the much-awaited happiness on the part of the petitioner and her [fianc] and the realization of their dreams. Finally, no evidence was presented to show any cause or ground to deny the present petition despite due notice and publication thereof. Even the State, through the [OSG] has not seen fit to interpose any [o]pposition. WHEREFORE, judgment is hereby rendered GRANTING the petition and ordering the Civil Registrar of Manila to change the entries appearing in the Certificate of Birth of [p]etitioner, specifically for petitioners first name from "Rommel Jacinto" to MELY and petitioners gender from "Male" to FEMALE. 5 On August 18, 2003, the Republic of the Philippines (Republic), thru the OSG, filed a petition for certiorari in the Court of Appeals.6 It alleged that there is no law allowing the change of entries in the birth certificate by reason of sex alteration. On February 23, 2006, the Court of Appeals7 rendered a decision8 in favor of the Republic. It ruled that the trial courts decision lacked legal basis. There is no law allowing the change of either name or sex in the certificate of birth on the ground of sex reassignment through surgery. Thus, the Court of Appeals granted the Republics petition, set aside the decision of the trial court and ordered the dismissal of SP Case No. 02-105207. Petitioner moved for reconsideration but it was denied.9 Hence, this petition. Petitioner essentially claims that the change of his name and sex in his birth certificate is allowed under Articles 407 to 413 of the Civil Code, Rules 103 and 108 of the Rules of Court and RA 9048.10 The petition lacks merit. A Persons First Name Cannot Be Changed On the Ground of Sex Reassignment Petitioner invoked his sex reassignment as the ground for his petition for change of name and sex. As found by the trial court: Petitioner filed the present petition not to evade any law or judgment or any infraction thereof or for any unlawful motive but solely for the purpose of making his birth records compatible with his present sex. (emphasis supplied) Petitioner believes that after having acquired the physical features of a female, he became entitled to the civil registry changes sought. We disagree. The State has an interest in the names borne by individuals and entities for purposes of identification.11 A change of name is a privilege, not a right. 12 Petitions for change of name are controlled by statutes.13 In this connection, Article 376 of the Civil Code provides:

ROMMEL JACINTO DANTES SILVERIO, petitioner, vs. REPUBLIC OF THE PHILIPPINES, respondent. DECISION CORONA, J.: When God created man, He made him in the likeness of God; He created them male and female. (Genesis 5:1-2) Amihan gazed upon the bamboo reed planted by Bathala and she heard voices coming from inside the bamboo. "Oh North Wind! North Wind! Please let us out!," the voices said. She pecked the reed once, then twice. All of a sudden, the bamboo cracked and slit open. Out came two human beings; one was a male and the other was a female. Amihan named the man "Malakas" (Strong) and the woman "Maganda" (Beautiful). (The Legend of Malakas and Maganda) When is a man a man and when is a woman a woman? In particular, does the law recognize the changes made by a physician using scalpel, drugs and counseling with regard to a persons sex? May a person successfully petition for a change of name and sex appearing in the birth certificate to reflect the result of a sex reassignment surgery? On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio filed a petition for the change of his first name and sex in his birth certificate in the Regional Trial Court of Manila, Branch 8. The petition, docketed as SP Case No. 02-105207, impleaded the civil registrar of Manila as respondent. Petitioner alleged in his petition that he was born in the City of Manila to the spouses Melecio Petines Silverio and Anita Aquino Dantes on April 4, 1962. His name was registered as "Rommel Jacinto Dantes Silverio" in his certificate of live birth (birth certificate). His sex was registered as "male." He further alleged that he is a male transsexual, that is, "anatomically male but feels, thinks and acts as a female" and that he had always identified himself with girls since childhood. 1 Feeling trapped in a mans body, he consulted several doctors in the United States. He underwent psychological examination, hormone treatment and breast augmentation. His attempts to transform himself to a "woman" culminated on January 27, 2001 when he underwent sex reassignment surgery2 in Bangkok, Thailand. He was thereafter examined by Dr. Marcelino Reysio-Cruz, Jr., a plastic and reconstruction surgeon in the Philippines, who issued a medical certificate attesting that he (petitioner) had in fact undergone the procedure. From then on, petitioner lived as a female and was in fact engaged to be married. He then sought to have his name in his birth certificate changed from "Rommel Jacinto" to "Mely," and his sex from "male" to "female." An order setting the case for initial hearing was published in the Peoples Journal Tonight, a newspaper of general circulation in Metro Manila, for three consecutive weeks. 3 Copies of the order were sent to the Office of the Solicitor General (OSG) and the civil registrar of Manila. On the scheduled initial hearing, jurisdictional requirements were established. No opposition to the petition was made. During trial, petitioner testified for himself. He also presented Dr. Reysio-Cruz, Jr. and his American fianc, Richard P. Edel, as witnesses.

ART. 376. No person can change his name or surname without judicial authority. This Civil Code provision was amended by RA 9048 (Clerical Error Law). In particular, Section 1 of RA 9048 provides: SECTION 1. Authority to Correct Clerical or Typographical Error and Change of First Name or Nickname. No entry in a civil register shall be changed or corrected without a judicial order, except for clerical or typographical errors and change of first name or nickname which can be corrected or changed by the concerned city or municipal civil registrar or consul general in accordance with the provisions of this Act and its implementing rules and regulations. RA 9048 now governs the change of first name. It vests the power and authority to entertain petitions for change of first name to the city or municipal civil registrar or consul general concerned. Under the law, therefore, jurisdiction over applications for change of first name is now primarily lodged with the aforementioned administrative officers. The intent and effect of the law is to exclude the change of first name from the coverage of Rules 103 (Change of Name) and 108 (Cancellation or Correction of Entries in the Civil Registry) of the Rules of Court, until and unless an administrative petition for change of name is first filed and subsequently denied.15 It likewise lays down the corresponding venue, 16 form17 and procedure. In sum, the remedy and the proceedings regulating change of first name are primarily administrative in nature, not judicial. RA 9048 likewise provides the grounds for which change of first name may be allowed: SECTION 4. Grounds for Change of First Name or Nickname. The petition for change of first name or nickname may be allowed in any of the following cases: (1) The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or extremely difficult to write or pronounce; (2) The new first name or nickname has been habitually and continuously used by the petitioner and he has been publicly known by that first name or nickname in the community; or (3) The change will avoid confusion. Petitioners basis in praying for the change of his first name was his sex reassignment. He intended to make his first name compatible with the sex he thought he transformed himself into through surgery. However, a change of name does not alter ones legal capacity or civil status. 18 RA 9048 does not sanction a change of first name on the ground of sex reassignment. Rather than avoiding confusion, changing petitioners first name for his declared purpose may only create grave complications in the civil registry and the public interest. Before a person can legally change his given name, he must present proper or reasonable cause or any compelling reason justifying such change. 19 In addition, he must show that he will be prejudiced by the use of his true and official name. 20 In this case, he failed to show, or even allege, any prejudice that he might suffer as a result of using his true and official name. In sum, the petition in the trial court in so far as it prayed for the change of petitioners first name was not within that courts primary jurisdiction as the petition should have bee n filed with the local civil registrar concerned, assuming it could be legally done. It was an improper remedy because the proper remedy was administrative, that is, that provided under RA 9048. It was also filed in the wrong venue as the proper venue was in the Office of the Civil Registrar of Manila where his birth certificate is kept. More importantly, it had no merit since the use of his true and official name does not prejudice him at all. For all these reasons, the Court of Appeals correctly dismissed petitioners petition in so far as the change of his first name was concerned. No Law Allows The Change of Entry In The Birth Certificate As To Sex On the Ground of Sex Reassignment The determination of a persons sex appearing in his birth certificate is a legal issue and the court must look to the statutes.21 In this connection, Article 412 of the Civil Code provides:

ART. 412. No entry in the civil register shall be changed or corrected without a judicial order. Together with Article 376 of the Civil Code, this provision was amended by RA 9048 in so far as clerical or typographical errors are involved. The correction or change of such matters can now be made through administrative proceedings and without the need for a judicial order. In effect, RA 9048 removed from the ambit of Rule 108 of the Rules of Court the correction of such errors.22 Rule 108 now applies only to substantial changes and corrections in entries in the civil register.23 Section 2(c) of RA 9048 defines what a "clerical or typographical error" is: SECTION 2. Definition of Terms. As used in this Act, the following terms shall mean: xxx xxx xxx

(3) "Clerical or typographical error" refers to a mistake committed in the performance of clerical work in writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such as misspelled name or misspelled place of birth or the like, which is visible to the eyes or obvious to the understanding, and can be corrected or changed only by reference to other existing record or records: Provided, however, That no correction must involve the change of nationality, age, status or sex of the petitioner. (emphasis supplied) Under RA 9048, a correction in the civil registry involving the change of sex is not a mere clerical or typographical error. It is a substantial change for which the applicable procedure is Rule 108 of the Rules of Court. The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the Rules of Court are those provided in Articles 407 and 408 of the Civil Code: 24 ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall be recorded in the civil register. ART. 408. The following shall be entered in the civil register: (1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6) judgments declaring marriages void from the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of natural children; (10) naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction; (14) judicial determination of filiation; (15) voluntary emancipation of a minor; and (16) changes of name. The acts, events or factual errors contemplated under Article 407 of the Civil Code include even those that occur after birth.25 However, no reasonable interpretation of the provision can justify the conclusion that it covers the correction on the ground of sex reassignment. To correct simply means "to make or set aright; to remove the faults or error from" while to change means "to replace something with something else of the same kind or with something that serves as a substitute."26 The birth certificate of petitioner contained no error. All entries therein, including those corresponding to his first name and sex, were all correct. No correction is necessary. Article 407 of the Civil Code authorizes the entry in the civil registry of certain acts (such as legitimations, acknowledgments of illegitimate children and naturalization), events (such as births, marriages, naturalization and deaths) and judicial decrees (such as legal separations, annulments of marriage, declarations of nullity of marriages, adoptions, naturalization, loss or recovery of citizenship, civil interdiction, judicial determination of filiation and changes of name). These acts, events and judicial decrees produce legal consequences that touch upon the legal capacity, status and nationality of a person. Their effects are expressly sanctioned by the laws. In contrast, sex reassignment is not among those acts or events mentioned in Article 407. Neither is it recognized nor even mentioned by any law, expressly or impliedly.

"Status" refers to the circumstances affecting the legal situation (that is, the sum total of capacities and incapacities) of a person in view of his age, nationality and his family membership.27 The status of a person in law includes all his personal qualities and relations, more or less permanent in nature, not ordinarily terminable at his own will , such as his being legitimate or illegitimate, or his being married or not. The comprehensive term status include such matters as the beginning and end of legal personality, capacity to have rights in general, family relations, and its various aspects, such as birth, legitimation, adoption, emancipation, marriage, divorce, and sometimes even succession.28 (emphasis supplied) A persons sex is an essential factor in marriage and family relations. It is a part of a persons legal capacity and civil status. In this connection, Article 413 of the Civil Code provides: ART. 413. All other matters pertaining to the registration of civil status shall be governed by special laws. But there is no such special law in the Philippines governing sex reassignment and its effects. This is fatal to petitioners cause. Moreover, Section 5 of Act 3753 (the Civil Register Law) provides: SEC. 5. Registration and certification of births. The declaration of the physician or midwife in attendance at the birth or, in default thereof, the declaration of either parent of the newborn child, shall be sufficient for the registration of a birth in the civil register. Such declaration shall be exempt from documentary stamp tax and shall be sent to the local civil registrar not later than thirty days after the birth, by the physician or midwife in attendance at the birth or by either parent of the newborn child. In such declaration, the person above mentioned shall certify to the following facts: (a) date and hour of birth; (b) sex and nationality of infant; (c) names, citizenship and religion of parents or, in case the father is not known, of the mother alone; (d) civil status of parents; (e) place where the infant was born; and (f) such other data as may be required in the regulations to be issued. xxx xxx xxx (emphasis supplied)

the civil registry for that reason. Thus, there is no legal basis for his petition for the correction or change of the entries in his birth certificate. Neither May Entries in the Birth Certificate As to First Name or Sex Be Changed on the Ground of Equity The trial court opined that its grant of the petition was in consonance with the principles of justice and equity. It believed that allowing the petition would cause no harm, injury or prejudice to anyone. This is wrong. The changes sought by petitioner will have serious and wide-ranging legal and public policy consequences. First, even the trial court itself found that the petition was but petitioners first step towards his eventual marriage to his male fianc. However, marriage, one of the most sacred social institutions, is a special contract of permanent union between a man and a woman.37 One of its essential requisites is the legal capacity of the contracting parties who must be a male and a female.38 To grant the changes sought by petitioner will substantially reconfigure and greatly alter the laws on marriage and family relations. It will allow the union of a man with another man who has undergone sex reassignment (a male-to-female post-operative transsexual). Second, there are various laws which apply particularly to women such as the provisions of the Labor Code on employment of women,39 certain felonies under the Revised Penal Code40 and the presumption of survivorship in case of calamities under Rule 131 of the Rules of Court,41 among others. These laws underscore the public policy in relation to women which could be substantially affected if petitioners petition were to be granted. It is true that Article 9 of the Civil Code mandates that "[n]o judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the law." However, it is not a license for courts to engage in judicial legislation. The duty of the courts is to apply or interpret the law, not to make or amend it. In our system of government, it is for the legislature, should it choose to do so, to determine what guidelines should govern the recognition of the effects of sex reassignment. The need for legislative guidelines becomes particularly important in this case where the claims asserted are statute-based. To reiterate, the statutes define who may file petitions for change of first name and for correction or change of entries in the civil registry, where they may be filed, what grounds may be invoked, what proof must be presented and what procedures shall be observed. If the legislature intends to confer on a person who has undergone sex reassignment the privilege to change his name and sex to conform with his reassigned sex, it has to enact legislation laying down the guidelines in turn governing the conferment of that privilege. It might be theoretically possible for this Court to write a protocol on when a person may be recognized as having successfully changed his sex. However, this Court has no authority to fashion a law on that matter, or on anything else. The Court cannot enact a law where no law exists. It can only apply or interpret the written word of its co-equal branch of government, Congress. Petitioner pleads that "[t]he unfortunates are also entitled to a life of happiness, contentment and [the] realization of their dreams." No argument about that. The Court recognizes that there are people whose preferences and orientation do not fit neatly into the commonly recognized parameters of social convention and that, at least for them, life is indeed an ordeal. However, the remedies petitioner seeks involve questions of public policy to be addressed solely by the legislature, not by the courts. WHEREFORE, the petition is hereby DENIED. Costs against petitioner. SO ORDERED.

Under the Civil Register Law, a birth certificate is a historical record of the facts as they existed at the time of birth.29 Thus, the sex of a person is determined at birth, visually done by the birth attendant (the physician or midwife) by examining the genitals of the infant. Considering that there is no law legally recognizing sex reassignment, the determination of a pers ons sex made at the time of his or her birth, if not attended by error,30 is immutable.31 When words are not defined in a statute they are to be given their common and ordinary meaning in the absence of a contrary legislative intent. The words "sex," "male" and "female" as used in the Civil Register Law and laws concerning the civil registry (and even all other laws) should therefore be understood in their common and ordinary usage, there being no legislative intent to the contrary. In this connection, sex is defined as "the sum of peculiarities of structure and function that distinguish a male from a female"32 or "the distinction between male and female."33 Female is "the sex that produces ova or bears young" 34 and male is "the sex that has organs to produce spermatozoa for fertilizing ova."35 Thus, the words "male" and "female" in everyday understanding do not include persons who have undergone sex reassignment. Furthermore, "words that are employed in a statute which had at the time a well-known meaning are presumed to have been used in that sense unless the context compels to the contrary." 36 Since the statutory language of the Civil Register Law was enacted in the early 1900s and remains unchanged, it cannot be argued that the term "sex" as used then is something alterable through surgery or something that allows a post-operative male-to-female transsexual to be included in the category "female." For these reasons, while petitioner may have succeeded in altering his body and appearance through the intervention of modern surgery, no law authorizes the change of entry as to sex in

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 149375 November 26, 2002

Petitioner now asks whether the last paragraph of Sec. 13, Rule 124, of the 2000 Rules of Criminal Procedure is applicable to the instant case considering that the penalty imposed was seventeen (17) years and four (4) months to thirty (30) years. Article 27 of The Revised Penal Code states that the penalty of reclusion perpetua shall be from twenty (20) years and one (1) day to forty (40) years. While the thirty (30)-year period falls within that range, reclusion perpetua nevertheless is a single indivisible penalty which cannot be divided into different periods. The thirty (30)-year period for reclusion perpetua is only for purposes of successive service of sentence 6 under Art. 70 of The Revised Penal Code. More importantly, the crime committed by petitioner is one penalized under RA 6538 or The Anti-Carnapping Act of 1972 which is a special law and not under The Revised Penal Code. Unless otherwise specified, if the special penal law imposes such penalty, it is error to designate it with terms provided for in The Revised Penal Code since those terms apply only to the penalties imposed by the Penal Code, and not to 7 the penalty in special penal laws. This is because generally, special laws provide their own specific penalties for the offenses they punish, which penalties are not 8 taken from nor refer to those in The Revised Penal Code. The penalty of fourteen (14) years and eight (8) months under RA 6538 is essentially within the range of the medium period of reclusion temporal. However, such technical term under The Revised Penal Code is not similarly used or applied to the penalty for carnapping. Also, the penalty for carnapping attended by the qualifying circumstance of violence against or intimidation of any person or force upon things, i.e., seventeen (17) years and four (4) months to thirty (30) years, does not correspond to that in The 9 Revised Penal Code. But it is different when the owner, driver or occupant of the carnapped vehicle is killed or raped in the course of the carnapping or on the 10 occasion thereof, since this is penalized with reclusion perpetua to death. Hence, it was error for the trial court to impose the penalty of "x x x imprisonment of TWELVE (12) YEARS and ONE (1) DAY as minimum to SEVENTEEN (17) YEARS 11 and FOUR (4) MONTHS of reclusion temporal as maximum." For these reasons the use of the term reclusion temporal in the decretal portion of its decision is not proper. Besides, we see no basis for the trial court to set the minimum penalty at twelve (12) years and one (1) day since RA 6538 sets the minimum penalty for carnapping at fourteen (14) years and eight (8) months. We see no error by the appellate court in relying on a Footnote in Omotoy to affirm the conviction of the accused. The substance of the Footnote may not be the ratio decidendi of the case, but it still constitutes an important part of the decision since it enunciates a fundamental procedural rule in the conduct of appeals. That this rule is stated in a Footnote to a decision is of no consequence as it is merely a matter of style. It may be argued that Omotoy is not on all fours with the instant case since the former involves an appeal from the Regional Trial Court to the Supreme Court while the case at bar is an appeal from the Court of Appeals to the Supreme Court. As enunciated in Omotoy, the Supreme Court entertains appeals in criminal cases only where the penalty imposed is reclusion perpetua or higher. The basis for this doctrine is the Constitution itself which empowers this Court to review, revise, reverse, modify or affirm on appeal, as the law or the Rules of Court may provide, final judgments of lower courts in all criminal cases in which the penalty imposed is reclusion perpetua 13 or higher.

MARVIN MERCADO, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. DECISION BELLOSILLO, J.: MARVIN MERCADO, together with Rommel Flores, Michael Cummins, Mark Vasques and Enrile Bertumen, was charged with and convicted of violation of R.A. 6538 or The Anti-Carnapping Act of 1972, as amended, for which he and his coaccused were sentenced to a prison term of twelve (12) years and one (1) day as minimum to seventeen (17) years and four (4) months of reclusion temporal as 1 maximum. The case before us concerns only the petition for review of accused Marvin Mercado where he assails his conviction, and arguing that the Court of Appeals having increased the penalty imposed by the court a quo to a prison term of seventeen (17) years and four (4) months to thirty (30) years, should have certified the case to this Court as the penalty of thirty (30) years was already reclusion perpetua, pursuant to 2 the last paragraph of Sec. 13, Rule 124, of the 2000 Rules of Criminal Procedure. We cannot sustain the petition; we agree instead with the Court of Appeals. In denying the prayer of petitioner, the Court of Appeals correctly held that the provision of Sec. 13, Rule 124, relied upon by petitioner, was applicable only when the penalty imposed was reclusion perpetua or higher as a single indivisible penalty, i.e., the penalty was at least reclusion perpetua. Hence, the penalty imposed by the 3 appellate court on the accused was clearly in accordance with Sec. 14 of RA 6538, 4 which is not considered reclusion perpetua for purposes of Sec. 13, Rule 124. The Court of Appeals in its assailed resolution relied on People v. Omotoy where the Regional Trial Court found the accused guilty of arson and sentenced him to imprisonment ranging from twelve (12) years of prision mayor maximum, as minimum, to reclusion perpetua. The case reached this Court on automatic appeal. In Footnote 16 of the decision, it was observed The appeal was taken directly to this Tribunal for the reason no doubt that the penalty of reclusion perpetua is involved, albeit joined to prision mayor in its maximum period in accordance with the Indeterminate Sentence Law. Actually, the appeal should have gone to the Court of Appeals since strictly speaking, this Court entertains appeals in criminal cases only where "the penalty imposed is reclusion perpetua or higher" (Sec. 5[2](d), Article VIII, Constitution), i.e., the penalty is at least reclusion perpetua (or life imprisonment, in special offenses). The lapse will be overlooked so as not to delay the disposition of the case. It is of slight nature, the penalty of reclusion perpetua having in fact been imposed on the accused, and causes no prejudice whatsoever to any party.

Where the Court of Appeals finds that the imposable penalty in a criminal case brought to it on appeal is at least reclusion perpetua, death or life imprisonment, then it should impose such penalty, refrain from entering judgment thereon, certify the 14 case and elevate the entire records to this Court for review. This will obviate the unnecessary, pointless and time-wasting shuttling of criminal cases between this Court and the Court of Appeals, for by then this Court will acquire jurisdiction over the case from the very inception and can, without bothering the Court of Appeals which 15 has fully completed the exercise of its jurisdiction, do justice in the case. On the other hand, where the Court of Appeals imposes a penalty less than reclusion perpetua, a review of the case may be had only by petition for review on certiorari 16 under Rule 45 where only errors or questions of law may be raised. Petitioner, in his Reply, also brings to fore the issue of whether there was indeed a violation of The Anti-Carnapping Act. This issue is factual, as we shall find hereunder. In the evening of 26 May 1996 Leonardo Bhagwani parked the subject Isuzu Trooper in front of his house at No. 7015-B Biac-na-Bato St., Makati City, Metro Manila. The vehicle was owned by Augustus Zamora but was used by Bhagwani as a service vehicle in their joint venture. The following day the Isuzu Trooper was nowhere to be found prompting Bhagwani to report its disappearance to the Makati Police Station and the Anti-Carnapping (ANCAR) Division which immediately issued an Alarm 17 Sheet. On 31 May 1996 Bhagwanis neighbor, fireman Avelin o Alvarez, disclosed that he learned from his daughter, a common-law wife of accused Michael Cummins, that the accused Rommel Flores, Mark Vasques, Enrile Bertumen and Michael Cummins himself stole the Isuzu Trooper. Alvarezs daughter however refused to i ssue any 18 statement regarding the incident. In the evening of 31 May 1996 SPO3 "Miling" Flores brought to his house Michael Cummins, Mark Vasques, Enrile Bertumen, Rommel Flores, and complaining witness Bhagwani. In that meeting, Cummins, Vasques, Bertumen and Flores admitted that 19 they took the vehicle and used it in going to Laguna, La Union and Baguio. They claimed however that it was with the knowledge and consent of Bhagwani. They alleged that on the night they took the vehicle, they invited Bhagwani to join them in their outing to Laguna. But when Bhagwani declined, they asked him instead if they could borrow the Isuzu Trooper. Bhagwani allegedly agreed and even turned over the 20 keys to them. Petitioner Marvin Mercado was absent during that confrontasi in the house of SPO3 21 "Miling" Flores but his co-accused narrated his participation in the crime. The Court of Appeals affirmed their conviction but increased the penalty imposed on the four (4) accused from a prison term of twelve (12) years and one (1) day as minimum to seventeen (17) years and four (4) months of reclusion temporal as 22 maximum to seventeen (17) years and four (4) months to thirty (30) years. Petitioner insists that the accused were more motivated by fun rather than theft in taking the Isuzu Trooper, and that they merely took the vehicle for a joyride with no intention of stealing it. If they were really thieves, according to petitioner, they would 23 have sold the vehicle outright instead of simply abandoning it in Baguio. Petitioner apparently overlooks the fact that this is a petition for review on certiorari where only questions of law, and not questions of fact, may be raised. The issue

before us being factual, a reevaluation of the facts and the evidence may not be entertained in this appeal. Besides, findings of fact of the trial court, when affirmed by 24 the Court of Appeals, are binding upon the Supreme Court. This rule may be disregarded only when the findings of fact of the Court of Appeals are contrary to the findings and conclusions of the trial court, or are not supported by the evidence on record. But there is no ground to apply this exception to the instant case. This Court will not assess all over again the evidence adduced by the parties particularly where as in this case the findings of both the trial court and the Court of Appeals completely 25 coincide. However, we disagree with the Court of Appeals on its imposition of the penalty. Republic Act No. 6538 imposes the penalty of imprisonment for seventeen (17) years and four (4) months to thirty (30) years when the carnapping is committed by means of violence against or intimidation of any person, or force upon things. The evidence in this case shows that the accused broke a quarter window of the Isuzu Trooper to gain access to it, thus demonstrating that force was used upon the vehicle; nonetheless, we believe that this does not merit the imposition of the full penalty. With the application of The Indeterminate Sentence Law, the penalty to be imposed may be reduced to an indeterminate prison term of seventeen (17) years and four (4) months to twenty-two (22) years. WHEREFORE, the assailed Decision of the Court of Appeals denying the Motion and Manifestation of petitioner Marvin Mercado dated 19 January 2001 is AFFIRMED with the MODIFICATION that the penalty imposed is reduced to an indeterminate prison term of seventeen (17) years and four (4) months to twenty-two (22) years. No costs. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila SECOND DIVISION

when he was actually placed under expert neuro-psychiatrist (sic) treatment; that even if the subject has shown marked progress, the remains bereft of adequate understanding of right and wrong. There is no controversy that the marriage between the parties was effected on July 9, 1958, years after plaintiffs mental illness had set in. This fact would justify a declaration of nullity of the marriage under Article 85 of the Civil Code which provides: Art. 95. (sic) A marriage may be annulled for nay of the following causes after (sic) existing at the time of the marriage: xxx xxx xxx (3) That either party was of unsound mind, unless such party, after coming to reason, freely cohabited with the other as husband or wife. There is a dearth of proof at the time of the marriage defendant knew about the mental condition of plaintiff; and there is proof that plaintiff continues to be without sound reason. The charges in this very complaint add emphasis to the findings of the neuro-psychiatrist handling the patient, that plaintiff really lives more in fancy than in reality, a strong indication of schizophernia (sic). 5 (Emphasis supplied). On June 1, 1979, Emilio Aguinaldo Suntay predeceased his mother, the decedent Cristina Aguinaldo-Suntay. The latter is respondent Isabel's paternal grandmother. The decedent died on June 4, 1990 without leaving a will. 6 Five years later or on October 26, 1995, respondent Isabel Aguinaldo Cojuangco Suntay filed before the Regional Trial Court (RTC) 7 a petition for issuance in her favor of Letters of Administration of the Intestate Estate of her late grandmother Cristina Aguinaldo-Suntay which case was docketed as Special Proceeding Case No. 117-M-95. In her petition, she alleged among others, that she is one of the legitimate grandchildren of the decedent and prayed that she be appointed as administratrix of the estate. 8 On December 15, 1995, petitioner filed an Opposition claiming that he is the surviving spouse of the decedent, that he has been managing the conjugal properties even while the decedent has been alive and is better situated to protect the integrity of the estate than the petitioner, that petitioner and her family have been alienated from the decedent and the Oppositor for more than thirty (30) years and thus, prayed that Letters of Administration be issued instead to him. 9 On September 22, 1997 or almost two years after filing an opposition, petitioner moved to dismiss the special proceeding case alleging in the main that respondent Isabel should not be appointed as administratrix of the decedent's estate. In support thereof, petitioner argues that under Article 992 of the Civil Code an illegitimate child has no right to succeed by right of representation the legitimate relatives of her father or mother. Emilio Aguinaldo Suntay, respondent Isabel's father predeceased his mother, the late Cristina Aguinaldo Suntay and thus, opened succession by representation. Petitioner contends that as a consequence of the declaration by the then CFI of Rizal that the marriage of respondent Isabel's parents is "null and void," the latter is an illegitimate child, and has no right nor interest in the estate of her paternal grandmother the decedent. 10 On October 16, 1997, the trial court issued the assailed order denying petitioner's Motion to Dismiss. 11 When his motion for reconsideration was denied by the trial court in an order dated January 9, 1998, 12 petitioner, as mentioned above filed this petition. Petitioner imputes grave abuse of discretion to respondent court in denying his motion to dismiss as well as his motion for reconsideration on the grounds that: (a) a motion to dismiss is appropriate in a special proceeding for the settlement of estate of a deceased person; (b) the motion to dismiss was timely filed; (c) the dispositive portion of the decision declaring the marriage of respondent Isabel's parents "null and void" must be upheld; and (d) said decision had long become final and had, in fact, been executed.

G.R. No. 132524 December 29, 1998 FEDERICO C. SUNTAY, petitioner, vs. ISABEL COJUANGCO-SUNTAY * and HON. GREGORIO S. SAMPAGA, Presiding Judge, Branch 78, Regional Trial Court, Malolos, Bulacan, Respondents

MARTINEZ, J.: Which should prevail between the ratio decidendi and the fallo of a decision is the primary issue in this petition for certiorari under Rule 65 filed by petitioner Federico C. Suntay who opposes respondent Isabel's petition for appointment as administratrix of her grandmother's estate by virtue of her right of representation. The suit stemmed from the following: On July 9, 1958, Emilio Aguinaldo Suntay (son of petitioner Federico Suntay) and Isabel Cojuangco-Suntay were married in the Portuguese Colony of Macao. Out of this marriage, three children were born namely: Margarita Guadalupe, Isabel Aguinaldo and Emilio Aguinaldo all surnamed Cojuangco Suntay. After 4 years, the marriage soured so that in 1962, Isabel Cojuangco-Suntay filed a criminal case 1 against her husband Emilio Aguinaldo Suntay. In retaliation, Emilio Aguinaldo filed before the then Court of First Instance (CFI) 2 a complaint for legal separation against his wife, charging her, among others, with infidelity and praying for the custody and care of their children who were living with their mother. 3 The suit was docketed as civil case number Q-7180. On October 3, 1967, the trial court rendered a decision the dispositive portion of which reads: WHEREFORE, the marriage celebrated between Emilio Aguinaldo Suntay and Isabel Cojuangco-Suntay on July 9, 1958 is hereby declared null and void and of no effect as between the parties. It being admitted by the parties and shown by the record that the question of the case and custody of the three children have been the subject of another case between the same parties in another branch of this Court in Special Proceeding No. 6428, the same cannot be litigated in this case. With regard to counterclaim, in view of the manifestation of counsel that the third party defendants are willing to pay P50,000.00 for damages and that defendant is willing to accept the offer instead of her original demand for P130,000.00, the defendant is awarded said sum of P50,000.00 as her counterclaim and to pay attorney's fees in the amount of P5.000.00. SO ORDERED. 4 (Emphasis supplied). As basis thereof, the CFI said: From February 1965 thru December 1965 plaintiff was confined in the Veterans Memorial Hospital. Although at the time of the trial of parricide case (September 8, 1967) the patient was already out of the hospital he continued to be under observation and treatment. It is the opinion of Dr. Aramil that the symptoms of the plaintiffs mental aberration classified as schizophernia (sic) had made themselves manifest even as early as 1955; that the disease worsened with time, until 1965

On the other hand, respondent Isabel asserts that petitioner's motion to dismiss was alte having been filed after the opposition was already filed in court, the counterpart of an answer in an ordinary civil action and that petitioner in his opposition likewise failed to specifically deny respondent Isabel's allegation that she is a legitimate child of Emilio Aguinaldo Suntay, the decedent's son. She further contends that petitioner proceeds from a miscomprehension of the judgment in Civil Case No. Q-7180 and the erroneous premise that there is a conflict between the body of the decision and its dispositive portion because in an action for annulment of a marriage, the court either sustains the validity of the marriage or nullifies it. It does not, after hearing declare a marriage "voidable" otherwise, the court will fail to decide and lastly, that the status of marriages under Article 85 of the Civil Code before they are annulled is "voidable." The petition must fail. Certiorari as a special civil action can be availed of only if there is concurrence of the essential requisites, to wit: (a) the tribunal, board or officer exercising judicial functions has acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or in excess of jurisdiction, and (b) there is no appeal, nor any plain, speedy and adequate remedy in the ordinary course of law for the purpose of annulling or modifying the proceeding. 13 There must be a capricious, arbitrary and whimsical exercise of power for it to prosper. 14 A reading of the assailed order, however, shows that the respondent court did not abuse its discretion in denying petitioner's motion to dismiss, pertinent portions of which are quoted thereunder, to wit: The arguments of both parties judiciously and objectively assessed and the pertinent laws applied, the Court finds that a motion to dismiss at this juncture is inappropriate considering the peculiar nature of this special proceeding as distinguished from an ordinary civil action. At the outset, this proceeding was not adversarial in nature and the petitioner was not called upon to assert a cause of action against a particular defendant. Furthermore, the State has a vital interest in the maintenance of the proceedings, not only because of the taxes due it, but also because if no heirs qualify, the State shall acquire the estate by escheat. xxx xxx xxx The court rules, for the purpose of establishing the personality of the petitioner to file and maintain this special proceedings, that in the case bench, the body of the decision determines the nature of the action which is for annulment, not declaration of nullity. The oppositor's contention that the fallo of the questioned decision (Annex "A" Motion) prevails over the body thereof is not without any qualification. It holds true only when the dispositive portion of a final decision is definite, clear and unequivocal and can be wholly given effect without need of interpretation or construction. Where there is ambiguity or uncertainty, the opinion or body of the decision may be referred to for purposes of construing the judgment (78 SCRA 541 citing Morelos v. Go Chin Ling; and Heirs of Juan Presto v. Galang). The reason is that the dispositive portion must find support from the decision's ratio decidendi. Per decision of the Court of First Instance Branch IX of Quezon City, marked as Annex "A" of oppositor's motion, the marriage of Emilio Aguinaldo Suntay and Isabel Cojuangco-Suntay was annulled on the basis of Art. 85 par. 3 of the Civil Code which refers to marriages which are considered voidable. Petitioner being conceived and born of a voidable marriage before the decree of annulment, she is considered legitimate (Art. 89, par. 2, Civil Code of the Phils.). 15

The trial court correctly ruled that "a motion to dismiss at this juncture is inappropriate." The 1997 Rules of Civil Procedure governs the procedure to be observed in actions, civil or criminal and special proceedings. 16 The Rules do not only apply to election cases, land registration, cadastral, naturalization and insolvency proceedings, and other cases not therein provided for. Special proceedings being one of the actions under the coverage of the Rules on Civil Procedure, a motion to dismiss filed thereunder would fall under Section 1, Rule 16 thereof. Said rule provides that the motion to dismiss may be filed "within the time for but before filing the answer to the complaint." Clearly, the motion should have been filed on or before the filing of petitioner's opposition 17 which is the counterpart of an answer in ordinary civil actions. Not only was petitioner's motion to dismiss filed out of time, it was filed almost two years after respondent Isabel was already through with the presentation of her witnesses and evidence and petitioner had presented two witnesses. The filing of the motion to dismiss is not only improper but also dilatory. The respondent court, far from deviating or straying off course from established jurisprudence on this matter, as petitioner asserts, had in fact faithfully observed the law and legal precedents in this case. In fact, the alleged conflict between the body of the decision and the dispositive portion thereof which created the ambiguity or uncertainty in the decision of the CFI of Rizal is reconcilable. The legal basis for setting aside the marriage of respondent Isabel's parents is clear under paragraph 3, Article 85 of the New Civil Code, the law in force prior to the enactment of the Family Code. Petitioner, however, strongly insists that the dispositive portion of the CFI decision has categorically declared that the marriage of respondent Isabel's parents is "null and void" and that the legal effect of such declaration is that the marriage from its inception is void and the children born out of said marriage are illegitimate. Such argument cannot be sustained. Articles 80, 81, 82 and 83 18 of the New Civil Code classify what marriages are void while Article 85 enumerates the causes for which a marriage may be annulled. 19 The fundamental distinction between void and voidable marriages is that a void marriage is deemed never to have taken place at all. The effects of void marriages, with respect to property relations of the spouses are provided for under Article 144 of the Civil Code. Children born of such marriages who are called natural children by legal fiction have the same status, rights and obligations as acknowledged natural children under Article 89 20 irrespective of whether or not the parties to the void marriage are in good faith or in bad faith. On the other hand, a voidable marriage, is considered valid and produces all its civil effects, until it is set aside by final judgment of a competent court in an action for annulment. Juridically, the annulment of a marriage dissolves the special contract as if it had never been entered into but the law makes express provisions to prevent the effects of the marriage from being totally wiped out. The status of children born in voidable marriages is governed by the second paragraph of Article 89 which provides that: Children conceived of voidable marriages before the decree of annulment shall be considered legitimate; and children conceived thereafter shall have the same status, rights and obligations as acknowledged natural children, and are also called natural children by legal fiction. 21 (Emphasis supplied). Stated otherwise, the annulment of "the marriage by the court abolishes the legal character of the society formed by the putative spouses, but it cannot destroy the juridical consequences which the marital union produced during its continuance." 22 Indeed, the terms "annul" and "null and void" have different legal connotations and implications, Annul means to reduce to nothing; annihilate; obliterate; to make void or of no effect; to nullify; to abolish; to do away with 23 whereas null and void is something that does not exist from the beginning. A marriage that is annulled presupposes that it subsists but later ceases to have legal effect when it is terminated through a court action. But in nullifying a marriage, the court simply declares a status or condition which already exists from the very beginning.

There is likewise no merit in petitioner's argument that it is the dispositive portion of the decision which must control as to whether or not the marriage of respondent Isabel's parents was void or voidable. Such argument springs from a miscomprehension of the judgment in Civil Case No. Q7180 and the erroneous premise that there is a conflict between the body of the decision and its dispositive portion. Parenthetically, it is an elementary principle of procedure that the resolution of the court in a given issue as embodied in the dispositive part of a decision or order is the controlling factor as to settlement of rights of the parties and the questions presented, notwithstanding statement in the body of the decision or order which may be somewhat confusing, 24 the same is not without a qualification. The foregoing rule holds true only when the dispositive part of a final decision or order is definite, clear and unequivocal and can be wholly given effect without need of interpretation or construction-which usually is "the case where the order or decision in question is that of a court not of record which is not constitutionally required to state the facts and the law on which the judgment is based." 25 Assuming that a doubt or uncertainty exists between the dispositive portion and the body of the decision, effort must be made to harmonize the whole body of the decision in order to give effect to the intention, purpose and judgment of the court. In Republic v. de los Angeles 26 the Court said: Additionally, Article 10 of the Civil Code states that "[i]n case of doubt in the interpretation or application of laws, it is presumed that the lawmaking body intended right and justice to prevail." This mandate of law, obviously cannot be any less binding upon the courts in relation to its judgments. . . .The judgment must be read in its entirety, and must be construed as a whole so as to bring all of its parts into harmony as far as this can be done by fair and reasonable interpretation and so as to give effect to every word and part if possible, and to effectuate the intention and purpose of the Court, consistent with the provisions of the organic law. (49 C.J.S., pp. 863-864) [Emphasis supplied]. Thus, a reading of the pertinent portions of the decision of the CFI of Rizal quoted earlier shows that the marriage is voidable: It is the opinion of Dr. Aramil that the symptoms of the plaintiffs mental aberration classified as schizophernia (sic) had made themselves manifest even as early as 1955; that the disease worsened with time, until 1965 when he was actually placed under expert neuro-psychiatrict (sic) treatment; that even if the subject has shown marked progress, he remains bereft of adequate understanding of right and wrong. There is no controversy that the marriage between the parties was effected on July 9, 1958, years after plaintiff's mental illness had set in. This fact would justify a declaration of nullity of the marriage under Article 85 of the Civil Code which provides: Art. 95 (sic) A marriage may be annulled for any of the following causes, existing at the time of the marriage: xxx xxx xxx (3) That either party was of unsound mind, unless such party, after coming to reason, freely cohabited with the other as husband and wife; xxx xxx xxx There is a dearth of proof at the time of the marriage defendant knew about the mental condition of plaintiff; and there is proof that plaintiff continues to be without sound reason. The charges in this very handling the patient, that

plaintiff really lives more in fancy than in reality, a strong indication of schizophernia (sic). 27 Inevitably, the decision of the CFI of Rizal declared null and void the marriage of respondent Isabel's parents based on paragraph 3, Article 85 of the New Civil Code. The legal consequences as to the rights of the children are therefore governed by the first clause of the second paragraph of Article 89. A contrary interpretation would be anathema to the rule just above-mentioned. Based on said provision the children of Emilio Aguinaldo Suntay and Isabel Cojuangco-Suntay who were conceived and born prior to the decree of the trial court setting aside their marriage on October 3, 1967 are considered legitimate. For purposes of seeking appointment as estate administratrix, the legitimate grandchildren, including respondent Isabel, may invoke their successional right of representation the estate of their grandmother Cristina Aguinaldo Suntay after their father, Emilio Aguinaldo Suntay, had predeceased their grandmother. This is, however, without prejudice to a determination by the courts of whether the Letters of Administration may be granted to her. Neither do the Court adjudged herein the successional rights of the personalities involved over the decedent's estate. It would not therefore be amiss to reiterate at this point what the Court, speaking through Chief Justice Ruiz Castro, emphasized to "all magistrates of all levels of the judicial hierarchy that extreme degree of care should be exercised in the formulation of the dispositive portion of a decision, because it is this portion that is to be executed once the decision becomes final. The adjudication of the rights and obligations of thoe parties, and the dispositions made as well as the directions and instructions given by the court in the premises in conformity with the body of the decision, must all be spelled out clearly, distinctly and unequivocally leaving absolutely no room for dispute, debate or interpretation. 28 WHEREFORE, finding no grave abuse of discretion, the instant petition is DISIMISSED. SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-4316 May 28, 1952

PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. HIGINIO MACADAEG, HON. POTENCIANO PECSON, HON. RAMON SAN JOSE, as Chairman and Members, respectively; of the Seventh Guerrilla Amnesty Commission, and ANTONIO GUILLERMO, alias, SLIVER, as an interested party, respondents. First Assistant Solicitor General Roberto A. Gianzon and Solicitor Esmeraldo Umali for petitioner. Hon. Higinio B. Macadaeg, Hon. Potenciano Pecson and Hon. Ramon R. San Jose in their own behalf. Antonio V. Raquiza and Marcelino N. Sayo for respondent Antonio Guillermo. LABRADOR, J.: This is an action of prohibition against the Seventh Guerilla Amnesty Commission, composed of Honorables Higinio Macadaeg, Potenciano Pecson, and Ramon R. San Jose, Judges of the Court of First Instance of Manila, to restrain and prevent it from taking jurisdiction and cognizance of a petition for amnesty filed by respondent Antonio Guillermo, alias Silver, who was convicted and sentenced by this Court on May 19, 1950, for murder in G.R. No. L-2188. * The grounds upon which the petition are based are (1) that this Court has already expressly ruled in its judgment of conviction of said case that said Antonio Guillermo is not entitled to the benefits of amnesty, because the murders of which he was convicted were committed "not in furtherance of the resistance movement but in the course of a fratricidal strife between two rival guerilla units," and (2) that the Seventh Guerilla Amnesty Commission can take cognizance only of cases pending appeal in the Supreme Court on October 2, 1946 (date of Administrative Order No. 1 of the President), at that time. The respondents filed answers independently of each other, and with the exception of Judge Ramon R. San Jose, they oppose the petition, alleging (1) that the decision of this Court does not prevent the respondent Antonio Guillermo from invoking his right to the provisions of the amnesty, because said right was not an issue at the trial on the case against him, and the pronouncement of this Court thereon is not final and conclusive and is merely an obiter dictum, and (2) that under a liberal interpretation of the administrative orders implementing the President's Amnesty Proclamation, the respondent Commission has jurisdiction of said petition. The record discloses that the original information against respondent Antonio Guillermo was filed in the Court of First Instance of Ilocos Norte on September 16, 1946, and as amended information, on July 15, 1947. The Court of First Instance rendered judgment on March 29, 1948. Thereupon, Guillermo presented an appeal to this Court, and this Court rendered its judgement on May 19, 1950. On June 5, 1950, Guillermo's Counsel filed a motion for reconsideration, but this motion was denied on July 13, 1950. On June 20, 1950, even before his motion for reconsideration was acted upon, respondent Guillermo filed a motion with this Court for the suspension of the proceedings and the reference of the case to the Seventh Guerilla Amnesty Commission, but this motion was denied by this Court on July 13, 1950. Antonio Guillermo filed his petition for amnesty for respondent Commission on July 8, 1950. On August 2, 1950, the records of the case against Guillermo were remanded to the clerk of the Court of First Instance of Ilocos Norte for the execution of the judgment, and on October 17, 1950, the respondent Commission required the clerk of the Court of First Instance of Ilocos Norte to forward the records of the case to it, and on November 9, 1950, it is set the case for hearing over the opposition of the Solicitor General. It was at this stage that this action of prohibition was filed in this Court. The first ground upon which the opposition to the petition is based, namely, that the holding of this Court that the respondent Guillermo is not entitled to the benefits of the amnesty proclamation, is merely an obiter dictum, is without any legal foundation, and must be dismissed.

An obiter dictum is an opinion "uttered by the way, not upon the point or question pending, as if turning aside from the main topic of the case to collateral subjects" (Newman vs. Kay, 49 S.E. 926, 931, 57 W. Va. 98, 68 L.R.A. 908, 4 Ann. Cas. 39 citing United States ex rel. Johnston vs. Clark County Court, 96 U.S. 211, 24 Ed. 628), or the opinion of the court upon any point or principle which it is not required to decide (29 Words & Phrases 15), or an opinion of the court which does not embody its determination and is made without argument or full consideration of the point, and is not professed deliberate determinations of the judge himself (29 Words & Phrases 13.). A cursory reading of the decision of this Court in G. R. No. L-2188 ** against respondent Antonio Guillermo discloses that the ruling of the Court that the said respondent is not entitled to the benefits of the amnesty is not an obiter dictum, but is a ruling of the Court on an issue expressly raised by the party appellant on facts or evidence adduced in the course of the trial of his case. It is not an opinion uttered by the way; it is a direct ruling on an issue expressly raised by a party. It was not unnecessary to make that ruling; the ruling was absolutely essential to a determination of a question of fact and of law directly in issue. It was not made without argument or full consideration of the point; it was deliberately entered by the Court after arguments on both sides had been heard. This Could not have avoided determining the issue without the peril of rendering an incomplete decision. Hereinbelow we quote portions of the decision of this Court, from it which it can readily be seen that it had before it evidence of the claim of amnesty expressly raised before the Court, and its ruling that appellant was not entitled thereto. xxx xxx xxx

Apparently realizing the inconsistency and untenability of that position appellant also contends that granting for the sake of argument that the accused was the author of the crime, there is proof "that the ill-starred seven were charged of (with) being spies for the Japanese. The insincerity and weakness of this last-ditch plea is manifest. Appellant does not claim that he killed the seven victims because he had proof and believe that they were spies for the Japanese. He merely says that they were charged (by Sagad) with being spies for the Japanese. xxx xxx xxx

At any rate, the amnesty proclamation now invoked is not applicable. We are satisfied from the proofs that the massacre in question was committed not in furtherance of the resistance movement but in the course of a fracticidad strife between two rival guerrilla units. That was to hinder and not a further the resistance against the Japanese enemy. It was a shame: and it would be adding insult to injury to stigmatize the memory of the unfortunate victims of such lust for power of and supremacy as spies and traitors to their country, in the absence of the competent proof as they really were. We spurn the baseless suggestion as rank injustice. A more serious contention is, May not respondent Guillermo raise the issue before the corresponding guerrilla amnesty commission in view of our ruling in the case of Viray vs. Crisologo, et al.*** G. R. No. L-2540, in which we held that the fact that the defendant has declined to take advantage of the amnesty proclamation at the beginning of his trial before a court martial does not preclude him from invoking it after he was found guilty and convicted. The express holding of this Court is that case is as follows: In our opinion the fact that respondent Crisologo had declined to take advantage of the amnesty proclamation at the beginning of his trial before the court martial does not now preclude him from invoking it, specially after he was found guilty and convicted. Before his trial he may and he must have entertained the idea and the belief that the killing was justified and was done in the performance of his duties as an official according to the criminal law, and that consequently there was no need for amnesty. However, after the court martial had disagreed with him and disabused him of his belief, he realized the necessity of invoking amnesty. There is nothing in the law that

stands in his way toward seeking the benefits of a law which in his opinion covers and obliterates the act of which he had been found criminally responsible. We hold that the above cited is not applicable to the case at bar, for in that case the defendant did not invoke the benefits of the amnesty at the time of the trial or on appeal, and only did so after he had been adjudge guilty and convicted, while in the case at bar he did so. It is true that the appellant Guillermo did not expressly plead amnesty, but the facts and circumstances surrounding the commission of the act charged against him as an offense were disclosed at the trial, from which facts and circumstances he later predicated the issue, before this Court, that he was entitled to the benefits of the amnesty. It may be true that the appellant Guillermo did not expressly plead amnesty as a defense at the trial of his case. But the rules on the criminal procedure do not include to be expressly pleaded. (Section 1, Rule 113, Rule of Court.) Even without an express plea of amnesty, a defendant may submit evidence that the commission of the act imputed to him falls within the provisions of the amnesty proclamation, without a previous formal announcement of such a defense before or during the trial. And even without such express plea, if the court finds that the case falls under the provisions of the amnesty proclamation, it is the duty of the court to declare the fact, if the fact justify such a finding, and extend the benefits of the amnesty to him. . . .; and the accused, during such trial, may present evidence to prove that his case falls within the terms of this amnesty. If the fact is legally proved, the trial judge shall so declare and this amnesty shall be immediately affective as to the accused, who shall forthwith be released or discharged. (Proclamation No. 8, September 7, 1946, 42 Off. Gaz., No. 9 p. 2073.) That the respondent herein Guillermo did not submit evidence to that effect is inferred from the claim of his counsel in the case against him that "there is proof that the ill starred seven were charged with being spies for the Japanese." Not only that, he expressly raised that issue in this Court on appeal. May he rise this issue again before the guerrilla amnesty commission, and thus have this administrative body reverse or change the finding of this Court? Under the circumstances of the present case, we hold that he should no longer be permitted to do so in view of "the general rule common to all civilized systems of jurisprudence that the solemn and deliberate sentence of the law, pronounced by its appointed organs, upon a disputed fact or state of facts, should be regarded as a final and conclusive determination of the question litigated, and should forever set the controversy at rest. Indeed it has been well said that this more maxim is more than a rule of law, more even than an important principle of public policy; and that it is a fundamental concept in the organization of every jural society." (Pealosa vs. Tuason, 22 Phil., 303, 310; section 44, Rule 39, Rules of Court). It is also argued, in support of the claim that this Court had no jurisdiction to make the ruling that respondent Guillermo is not entitled to amnesty, that the guerrilla amnesty commissions are the first ones to pass upon petitions for amnesty, that regular judicial tribunals can not rule upon such an issue (of amnesty) unless it has first been resolved by a commission, and that these are not judicial tribunals but administrative bodies acting as arms of the executive in carrying out the purposes of the amnesty proclamation, which is merely a form of executive clemency. It is true that the grant of amnesty originates in an exclusive act. But the proclamation was issued under expressly authority in the Constitution [Article VII, section 10 (6)], was expressly sanctioned by the Congress (Resolution No. 13 dated September 18, 1946), and has the nature, force, effect, and operation of a law. That the cognizance of applications for amnesty is vested in the guerrilla amnesty commissions are mere screening bodies is not denied, but there is nothing in the proclamation to support the contention that the authority to decide any claim for amnesty is to be exercised but said commissions alone, to the exclusion of the courts. Neither can it be denied that any one charged before the courts may claim as a defense, waive the filing of an application therefor, and submit evidence thereof in the trial of his case. In this latter case it would be a cumbersome procedure, indeed, if said defense were first required to be submitted to commission for decision, latter to be reviewed by a court. The only sensible interpretation of the law is that while all applications should be passed upon by commissions, an accused may, instead of filing an application, choose the alternative remedy of just raising the issue in a court of justice in the trial of his case. And if this second alternative is chosen, the applicant should be

declared estopped from contesting the decision, as well as the authority of the court that adversely passed upon his claim. But there are further and other considerations, also weighty and important, that attend respondent Guillermo's petition for amnesty. He is not one filed during the pendency of this case in the Court of First Instance it is a petition filed after final judgment of conviction in this Supreme Court. It does not appear in the record that during the one and a half-year period (September 16, 1946, to March 29, 1948) that this case was being coursed and tried in the Court of First Instance of Ilocos Norte, that he ever filed an application for amnesty. Neither does it appear that the provincial fiscal has ever reported Guillermo's case to the Guerrilla Amnesty Commission for Ilocos Norte, pursuant to the direct mandate of the amnesty proclamation. Nor did Guillermo ever claim amnesty as his defense at the time of the trial. May we not justly infer from these positive circumstances that, during all the time the case was pending and up to the filling of appellant's brief in the Supreme Court, amnesty was never thought of as a defense, either by the accused himself or by the fiscal, or by the judge trying the case? As a matter of fact, this Court found that the issue of amnesty raised in this Court of Appeal was a "last-ditch plea." Guillermo only thought of amnesty on June 20, 1950, after this Court had found him guilty, overruling his defense of amnesty, and before his motion for reconsideration was denied. We are therefore, constrained to hold that his present petition is not entirely free from a reasonable suspicion as to its ends and purposes. It seems to us to be a last desperate attempt by technicality to avert or delay the execution of the judgment of conviction rendered against him. Of course, no court of justice would countenance such ill-advised attempt. The second ground upon which the petition for prohibition is based is that the Seventh Guerilla Amnesty Commission has no jurisdiction to take cognizance of respondent Guillermo's application. We also find this contention to be correct. Administrative Order No. 11, which creates the guerrilla amnesty commission, expressly assigns to the Seventh "cases from the different provinces and cities now pending appeal in the Supreme Court." (Emphasis ours.) Said administrative order was promulgated on October 2, 1946, on which date the criminal case against respondent Guillermo was still pending in the Court of First Instance of Ilocos Norte. His case was a case in the province (Ilocos Norte) assigned to the Second Guerrilla Amnesty Commission. Respondents cite administrative Order No. 217 of the Department of Justice dated December 1, 1948 to support their claim that the Seventh has jurisdiction of the application, because of that date Guillermo's case was already pending in the Supreme Court. This department order was issued, as it expressly states, "in view of the appointments of new Judges of First Instances," not for the purpose of setting forth cases cognizable by each of the different commissions, which the President had already done. Besides, it can not be interpreted to modify the President's administrative order apportioning the cases among the amnesty commissions. In resume of our conclusions, we state (1) that the finding of this Court that Guillermo is not entitled to the benefits of amnesty, is not an obiter dictum but a pronouncement on a material issue, and is final and conclusive against him and may not, under the principle of res judicata, be again raised in issue by him in any tribunal, judicial or administrative; (2) that having voluntarily raised the issue in this Court during the consideration of his case, he is now estopped from contesting the judgment, of the jurisdiction of the court that rendered the adverse ruling; (3) that this petition is an ill-advised attempt of doubtful good faith, to arrest or delay the execution of a final judgement of conviction; and (4) that the respondent Commission has no jurisdiction to take cognizance of the application for amnesty. Wherefore, the petition for prohibition is hereby granted, and the preliminary injunction issued by this Court on November 24, 1950, made absolute, with costs against respondent Antonio Guillermo, alias Silver.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-11986 July 31, 1958 BERNARDO MANALANG, ET AL., petitioners-appellants, vs. ELVIRA TUASON DE RICKARDS, ET AL., respondent-appellees. Luis Manalang and Associates for appellants. Jorge V. Jazmines for appellees. FELIX, J.: Elvira Vidal Tuason de Rickards is the owner of private subdivision located at Sampaloc, Manila, with an area of 44,561.80 square meters covered by Transfer Certificate of Title No. 40961 (Exhibit 13) in 1954, the lots therein were leased to various tenants among whom were Bernardo Manalang, Vicente de Leon and Salvador de Leon occupying Lots Nos. 174-C, 160 and 158, respectively. As the City of Manila allegedly increased the assessment of said land effective January 1, 1954, the administrator thereof notified the tenants of the corresponding increase of the rentals of the lots therein, such that the rental for the lot occupied by Bernardo Manalang was raised from P36 to 80; the rental for Lot No. 160 was raised from P10 to P43.12; and from P24 to P51.24 for Lot No. 158. The said tenants, however, insisted on paying the former rate, and as the landowner refused to accept the same, the former consigned them in court. On April 27, 1954, Elvira Vidal Tuason de Rickards, assisted by her husband, Jose A. Rickards, instituted with the Municipal Court of Manila Civil Case No. 31401 against Bernardo Manalang; Civil Case No. 31406 against Salvador de Leon; and Civil Case No. 31411 against Vicente de Leon, all for ejectment. Therein defendants filed separate motions to dismiss invoking the provisions of Republic Act No. 1162, which was approved on June 18, 1954. The matter was duly heard and on July 14, 1954, the Municipal Judge of Manila issued an order denying the motions to dismiss and suspending the proceedings for 2 years from the enactment of Republic Act No. 1162 or until further order from the Court. On April 13, 1955, upon motion of the plaintiffs, the Municipal Judge issued an order setting the cases for hearing on the merits.

Defendants tried to secure a reconsideration of the aforesaid order, but as their motion was denied, they filed a petition for certiorari and prohibition with the Court of First Instance of Manila (Civil Case No. 26135) against the spouses Rickards and the Judges of the Municipal Court of Manila, alleging that the order of the same Court of July 14, 1954, already disposed of the action and determined the rights of the parties. It was thus prayed that a writ enjoining the respondent Judges from proceeding with the hearing the cases be issued; that said respondents be declared without jurisdiction to hear the same; and that the orders of Municipal Judge Estrella Abad Santos setting the case for hearing on the merits and the order of Acting Judge Sumilang Bernardo denying their motion for reconsideration be set aside and declared null and void. To this petition, the respondent spouses filed their answer denying some of the averments of the same. And special defenses, it was contended that the order of July 14, 1954, did not settle the controversy it being merely an interlocutory order, and as such could not be reviewed by a petition for certiorari. It was, therefore, prayed that the petition be dismissed and the Municipal Judges be ordered to hear the cases on the merits. On February 6, 1956, the Court of First Instance of Manila dismissed the petition on the ground that the order of the inferior court was merely interlocutory in nature, and that the statements contained in the body thereof were the basis of the court's ruling, as embodied in the dispositive part thereof denying the motion to dismiss and suspending the proceedings therein for 2 years or until further order from the court. From this decision, defendants appealed to the Court of Appeals, but the latter tribunal certified the case to Us on the ground that it involves only a question purely of law. The main issue presented by the instant action is whether the order of the inferior court of July 14, 1954, is interlocutory or not and consequently, whether the lower court erred in dismissing the petition for certiorari and prohibition filed therein. The aforementioned order of the Municipal Judge dated July 14, 1954, is hereunder copied in full: ORDER After a thorough consideration of the Motion to Dismiss and the opposition thereto, this Court is of the opinion and so holds that from the approval of Republic Act No. 1162 no ejectment proceedings should be instituted or prosecuted against any tenant or occupant and that the unpaid rentals of the tenants, if

any they have, shall be liquidated and shall be paid in 18, equal monthly installments from the date or time of liquidation and that the landlord cannot charge more than the amount being charged or collected by them from their tenants as of December 31, 1953. It is undisputed fact that the premises occupied by the hereindefendants have been and are actually being leased to tenants, for which reason it is governed by the provisions of the aforesaid Act. But inasmuch as these three cases of ejectment have been instituted before the approval of said Act, it is the considered opinion of this Court that its prosecution should be suspended. As to the motion to dismiss same is untenable and without merit, for if these cases of ejectment will be dismissed as claimed by the herein defendants, the liquidation of the unpaid rentals could not be carried out effectively as provided by said Act. As to the unconstitutionality of section 5 of the Republic Act in question, the presumption is that same is valid and constitutional until it is declared otherwise by the competent tribunal, for which reason we deem it our bounden duty to enforce the avowed policy of the Republic of the Philippines, as expressed in said Act (Pastor Mauricio et al. vs. Hon. Felix Martinez et al., CA-G. R. 5114-R, promulgated January 31, 1952). WHEREFORE, this Court orders the denial of the motion to dismiss, and the suspension of the proceedings in the three above-entitled cases during the period of two years from the approval of Republic Act No. 1162 or until further order of this Court. We see no reason why the ruling of the lower Court should not be affirmed. The order of the Municipal Judge of July 14, 1954, is clear enough to call for any construction or interpretation, for while it opens with the paragraph stating that it was the opinion of the court "and so holds that from the approval of Republic Act No. 1162 no ejectment proceedings should be instituted", etc., the dispositive portion of the order decreed the denial of the motion to dismiss which was based on the same Republic Act No. 1162. And this ruling is understandable. It appears that the actions for ejectment were filed before the enactment of Republic Act No. 1162 and conceivably under the general principle that laws can only be enforced prospectively, the Municipal Judge for

one reason or another saw it fit to suspend the proceedings for quite a long period, probably with the expectation that the question of the constitutionality of Republic Act No. 1162 might be in the meantime duly passed upon. It can be seen from the foregoing that the issues presented in the ejectment proceedings were not settled thereby, for precisely the motion to dismiss filed by defendants based on the provisions of Republic Act No. 1162 was denied. Certainly, said actions having been merely suspended, and the jurisdiction of the court over said proceedings not having been assailed, the said court has the power to reopen the same for trial on the merits in order that the rights of the parties therein could be finally determined. It is argued, however, by appellants that the body of the order recognized the prohibition laid down by Republic Act No. 1162 against the institution of ejectment proceedings after the effectivity of said Act. It is an elementary principle of procedure that the resolution of the Court on a given issue as embodied in the dispositive part of the decision or order is the investitive or controlling factor that determines and settles the rights of the parties and the questions presented therein, notwithstanding the existence of statements or declarations in the body of said order that may be confusing. In the case at bar, considering that the dispositive part of the order merely suspended the proceedings without touching on the merits of the case or disposing of the issues involved therein, said order cannot be said to be final in character but clearly an interlocutory one which in this case cannot be the subject of an action for certiorari. Wherefore, and acting merely on the question of procedure submitted to Us by the instant appeal, We have to affirm, as We do hereby affirm, the order of the lower Court dismissing appellant's petition for certiorari and prohibition. Without pronouncement as to costs. It is ordered.

U.S. Supreme Court BARNES v. GLEN THEATRE, INC., 501 U.S. 560 (1991) 501 U.S. 560 BARNES, PROSECUTING ATTORNEY OF ST. JOSEPH COUNTY, INDIANA, ET AL. v. GLEN THEATRE, INC., ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 90-26 Argued January 8, 1991 Decided June 21, 1991 Respondents, two Indiana establishments wishing to provide totally nude dancing as entertainment and individual dancers employed at those establishments, brought suit in the District Court to enjoin enforcement of the state public indecency law - which requires respondent dancers to wear pasties and a G-string - asserting that the law's prohibition against total nudity in public places violates the First Amendment. The court held that the nude dancing involved here was not expressive conduct. The Court of Appeals reversed, ruling that nonobscene nude dancing performed for entertainment is protected expression, and that the statute was an improper infringement of that activity because its purpose was to prevent the message of eroticism and sexuality conveyed by the dancers. Held: The judgment is reversed. 904 F.2d 1081 (CA9 1990), reversed. The CHIEF JUSTICE, joined by JUSTICE O'CONNOR and JUSTICE KENNEDY, concluded that the enforcement of Indiana's public indecency law to prevent totally nude dancing does not violate the First Amendment's guarantee of freedom of expression. Pp. 565-572. (a) Nude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment, although only marginally so. See, e.g., Doran v. Salem Inn, Inc., 422 U.S. 922, 932 . Pp. 565-566. (b) Applying the four-part test of United States v. O'Brien, 391 U.S. 367, 376 -377 which rejected the contention that symbolic speech is entitled to full First Amendment protection - the statute is justified despite its incidental limitations on some expressive activity. The law is clearly within the State's constitutional power. And it furthers a substantial governmental interest in protecting societal order and morality. Public indecency statutes reflect moral disapproval of people appearing in the nude among strangers in public places, and this particular law follows a line of state laws, dating back to 1831, banning public nudity. The States' traditional police power is defined as the authority to provide for the public health, safety, and morals, and such a basis for legislation [501 U.S. 560, 561] has been upheld. See, e.g., Paris Adult Theatre I v. Slaton, 413 U.S. 49, 61 . This governmental interest is unrelated to the suppression of free expression, since public nudity is the evil the State seeks to prevent, whether or not it is combined with expressive activity. The law does not proscribe nudity in these establishments because the dancers are conveying an erotic message. To the contrary, an erotic performance may be presented without any state interference, so long as the performers wear a scant amount of clothing. Finally, the incidental restriction on First Amendment freedom is no greater than is essential to the furtherance of the governmental interest. Since the statutory prohibition is not a means to some greater end, but an end itself, it is without cavil that the statute is narrowly tailored. Pp. 566-572.

JUSTICE SCALIA concluded that the statute - as a general law regulating conduct and not specifically directed at expression, either in practice or on its face - is not subject to normal First Amendment scrutiny, and should be upheld on the ground that moral opposition to nudity supplies a rational basis for its prohibition. Cf. Employment Division, Oregon Dept. of Human Resources v. Smith, 494 U.S. 872 . There is no intermediate level of scrutiny requiring that an incidental restriction on expression, such as that involved here, be justified by an important or substantial governmental interest. Pp. 572-580. JUSTICE SOUTER, agreeing that the nude dancing at issue here is subject to a degree of First Amendment protection, and that the test of United States v. O'Brien, 391 U.S. 367 , is the appropriate analysis to determine the actual protection required, concluded that the State's interest in preventing the secondary effects of adult entertainment establishments - prostitution, sexual assaults, and other criminal activity - is sufficient under O'Brien to justify the law's enforcement against nude dancing. The prevention of such effects clearly falls within the State's constitutional power. In addition, the asserted interest is plainly substantial, and the State could have concluded that it is furthered by a prohibition on nude dancing, even without localized proof of the harmful effects. See Renton v. Playtime Theatres, Inc., 475 U.S. 41, 50 . Moreover, the interest is unrelated to the suppression of free expression, since the pernicious effects are merely associated with nude dancing establishments and are not the result of the expression inherent in nude dancing. Id., at 48. Finally, the restriction is no greater than is essential to further the governmental interest, since pasties and a G-string moderate expression to a minor degree when measured against the dancer's remaining capacity and opportunity to express an erotic message. Pp. 581-587. [501 U.S. 560, 562] REHNQUIST, C.J., announced the judgment of the Court and delivered an opinion in which O'CONNOR and KENNEDY, JJ., joined. SCALIA, J., post, p. 572, and SOUTER, J., post, p. 581, filed opinions concurring in the judgment. WHITE, J., filed a dissenting opinion, in which MARSHALL, BLACKMUN, and STEVENS, JJ., joined, post, p. 587. Wayne E. Uhl, Deputy Attorney General of Indiana, argued the cause for petitioners. With him on the briefs was Linley E. Pearson, Attorney General. Bruce J. Ennis, Jr., argued the cause for respondents. Lee J. Klein and Bradley J. Shafer filed a brief for respondents Glen Theatre, Inc., et al. Patrick Louis Baude and Charles A. Asher filed a brief for respondents Darlene Miller et al. * [ Footnote * ] Briefs of amici curiae urging reversal were filed for the State of Arizona et al. be Robert K. Corbin, Attorney General of Arizona, and Steven J. Twist, Chief Assistant Attorney General, Clarine Nardi Riddle, Attorney General of Connecticut, and John J. Kelly, Chief State's Attorney, William L. Webster, Attorney General of Missouri, Lacy H. Thornburg, Attorney General of North Carolina, and Rosalie Simmonds Ballentine, Acting Attorney General of the Virgin Islands; for the American Family Association, Inc., et al. by Alan E. Sears, James Mueller, and Peggy M. Coleman; and for the National Governors' Association et al. by Benna Ruth Solomon and Peter Buscemi. Brief of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Spencer Neth, Thomas D. Buckley, Jr., Steven R. Sharpiro, and John A. Powell; for the Georgia on Premise & Lounage Association, Inc., by James A. Walrath; for People for the American Way et al. by Timothy B. Dyk, Robert H. Klonoff, Patricia A. Dunn, Elliot M. Mincberg, Stephen F. Rohde, and Mary D. Dorman. James J. Clancy filed a brief pro se as amicus curiae. CHIEF JUSTICE REHNQUIST announced the judgment of the Court and delivered an opinion, in which JUSTICE O'CONNOR and JUSTICE KENNEDY join. Respondents are two establishments in South Bend, Indiana, that wish to provide totally nude dancing as entertainment, and individual dancers who are employed at these [501 U.S. 560,

563] establishments. They claim that the First Amendment's guarantee of freedom of expression prevents the State of Indiana from enforcing its public indecency law to prevent this form of dancing. We reject their claim. The facts appear from the pleadings and findings of the District Court, and are uncontested here. The Kitty Kat Lounge, Inc. (Kitty Kat) is located in the city of South Bend. It sells alcoholic beverages and presents "go-go dancing." Its proprietor desires to present "totally nude dancing," but an applicable Indiana statute regulating public nudity requires that the dancers wear "pasties" and a "G-string" when they dance. The dancers are not paid an hourly wage, but work on commission. They receive a 100 percent commission on the first $60 in drink sales during their performances. Darlene Miller, one of the respondents in the action, had worked at the Kitty Kat for about two years at the time this action was brought. Miller wishes to dance nude because she believes she would make more money doing so. Respondent Glen Theatre, Inc., is an Indiana corporation with a place of business in South Bend. Its primary business is supplying so-called adult entertainment through written and printed materials, movie showings, and live entertainment at an enclosed "bookstore." The live entertainment at the "bookstore" consists of nude and seminude performances and showings of the female body through glass panels. Customers sit in a booth and insert coins into a timing mechanism that permits them to observe the live nude and seminude dancers for a period of time. One of Glen Theatre's dancers, Gayle Ann Marie Sutro, has danced, modeled, and acted professionally for more than 15 years, and in addition to her performances at the Glen Theatre, can be seen in a pornographic movie at a nearby theater. App. to Pet. for Cert. 131-133. Respondents sued in the United States District Court for the Northern District of Indiana to enjoin the enforcement of the Indiana public indecency statute, Ind.Code 35-45-4-1 [501 U.S. 560, 564] (1988), asserting that its prohibition against complete nudity in public places violated the First Amendment. The District Court originally granted respondents' prayer for an injunction, finding that the statute was facially overbroad. The Court of Appeals for the Seventh Circuit reversed, deciding that previous litigation with respect to the statute in the Supreme Court of Indiana and this Court precluded the possibility of such a challenge, 1 and remanded to the District Court in order for the plaintiffs to pursue their claim that the statute violated the First Amendment as applied to their dancing. Glen Theatre, Inc. v. Pearson, 802 F.2d 287, 288-290 (1986). On remand, the District Court concluded that [501 U.S. 560, 565] "the type of dancing these plaintiffs wish to perform is not expressive activity protected by the Constitution of the United States," and rendered judgment in favor of the defendants. Glen Theatre, Inc. v. Civil City of South Bend, 695 F.Supp. 414, 419 (1988). The case was again appealed to the Seventh Circuit, and a panel of that court reversed the District Court, holding that the nude dancing involved here was expressive conduct protected by the First Amendment. Miller v. Civil City of South Bend, 887 F.2d 826 (CA7 1989). The Court of Appeals then heard the case en banc, and the court rendered a series of comprehensive and thoughtful opinions. The majority concluded that nonobscene nude dancing performed for entertainment is expression protected by the First Amendment, and that the public indecency statute was an improper infringement of that expressive activity because its purpose was to prevent the message of eroticism and sexuality conveyed by the dancers. Miller v. Civil City of South Bend, 904 F.2d 1081 (CA7 1990). We granted certiorari, 498 U.S. 807 (1990), and now hold that the Indiana statutory requirement that the dancers in the establishments involved in this case must wear pasties and a G-string does not violate the First Amendment. Several of our cases contain language suggesting that nude dancing of the kind involved here is expressive conduct protected by the First Amendment. In Doran v. Salem Inn, Inc., 422 U.S. 922, 932 (1975), we said: "[A]lthough the customary "barroom" type of nude dancing may involve only the barest minimum of protected expression, we recognized in California v. LaRue, 409 U.S. 109, 118 (1972), that this form of entertainment might be entitled to First and Fourteenth Amendment protection under some circumstances." In Schad v. Borough of Mount Ephraim, 452 U.S. 61, 66 (1981), we said that "[f]urthermore, as the state courts in this case recognized, nude dancing is not without its First Amendment protections from official regulation" (citations omitted). These statements support the conclusion of the Court of Appeals [501 U.S. 560, 566] that nude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment, though we view it as only marginally so.

This, of course, does not end our inquiry. We must determine the level of protection to be afforded to the expressive conduct at issue, and must determine whether the Indiana statute is an impermissible infringement of that protected activity. Indiana, of course, has not banned nude dancing as such, but has proscribed public nudity across the board. The Supreme Court of Indiana has construed the Indiana statute to preclude nudity in what are essentially places of public accommodation such as the Glen Theatre and the Kitty Kat Lounge. In such places, respondents point out, minors are excluded and there are no nonconsenting viewers. Respondents contend that, while the state may license establishments such as the ones involved here and limit the geographical area in which they do business, it may not in any way limit the performance of the dances within them without violating the First Amendment. The petitioner contends, on the other hand, that Indiana's restriction on nude dancing is a valid "time, place or manner" restriction under cases such as Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984). The "time, place, or manner" test was developed for evaluating restrictions on expression taking place on public property which had been dedicated as a "public forum," Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989), although we have on at least one occasion applied it to conduct occurring on private property. See Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986). In Clark, we observed that this test has been interpreted to embody much the same standards as those set forth in United States v. O'Brien, 391 U.S. 367 (1968), and we turn, therefore, to the rule enunciated in O'Brien. O'Brien burned his draft card on the steps of the South Boston courthouse in the presence of a sizable crowd, and [501 U.S. 560, 567] was convicted of violating a statute that prohibited the knowing destruction or mutilation of such a card. He claimed that his conviction was contrary to the First Amendment because his act was "symbolic speech" - expressive conduct. The court rejected his contention that symbolic speech is entitled to full First Amendment protection, saying: "[E]ven on the assumption that the alleged communicative element in O'Brien's conduct is sufficient to bring into play the First Amendment, it does not necessarily follow that the destruction of a registration certificate is constitutionally protected activity. This Court has held that, when "speech" and "nonspeech" elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong. Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." Id., at 376-377 (footnotes omitted). Applying the four-part O'Brien test enunciated above, we find that Indiana's public indecency statute is justified despite its incidental limitations on some expressive activity. The public indecency statute is clearly within the constitutional power of the State, and furthers substantial governmental interests. It is impossible to discern, other than from the text of the statute, exactly what governmental interest the Indiana legislators had in mind when they enacted [501 U.S. 560, 568] this statute, for Indiana does not record legislative history, and the state's highest court has not shed additional light on the statute's purpose. Nonetheless, the statute's purpose of protecting societal order and morality is clear from its text and history. Public indecency statutes of this sort are of ancient origin, and presently exist in at least 47 States. Public indecency, including nudity, was a criminal offense at common law, and this Court recognized the common law roots of the offense of "gross and open indecency" in Winters v. New York, 333 U.S. 507, 515 (1948). Public nudity was considered an act malum en se. Le Roy v. Sidley, 1 Sid. 168, 82 Eng.Rep. 1036 (K.B. 1664). Public indecency statutes such as the one before us reflect moral disapproval of people appearing in the nude among strangers in public places.

This public indecency statute follows a long line of earlier Indiana statutes banning all public nudity. The history of Indiana's public indecency statute shows that it predates barroom nude dancing, and was enacted as a general prohibition. At least as early as 1831, Indiana had a statute punishing "open and notorious lewdness, or . . . any grossly scandalous and public indecency." Rev. Laws of Ind., ch. 26, 60 (1831); Ind. Rev. Stat., ch. 53, 81 (1834). A gap during which no statute was in effect was filled by the Indiana Supreme Court in Ardery v. State, 56 Ind. 328 (1877), which held that the court could sustain a conviction for exhibition of "privates" in the presence of others. The court traced the offense to the Bible story of Adam and Eve. Id., at 329330. In 1881, a statute was enacted that would remain essentially unchanged for nearly a century: "Whoever, being over fourteen years of age, makes an indecent exposure of his person in a public place, or in any place where there are other persons to be offended or annoyed thereby, . . . is guilty of public indecency. . . ." 1881 Ind.Acts, ch. 37, 90. [501 U.S. 560, 569] The language quoted above remained unchanged until it was simultaneously repealed and replaced with the present statute in 1976. 1976 Ind. Acts, Pub.L. 148, Art. 45, ch. 4, 1. 2 This and other public indecency statutes were designed to protect morals and public order. The traditional police power of the States is defined as the authority to provide for the public health, safety, and morals, and we have upheld such a basis for legislation. In Paris Adult Theatre I v. Slaton, 413 U.S. 49, 61 (1973), we said: "In deciding Roth v. United States, 354 U.S. 476 (1957)], this Court implicitly accepted that a legislature could legitimately act on such a conclusion to protect "the social interest in order and morality." [Id.], at 485." (Emphasis omitted.) And in Bowers v. Hardwick, 478 U.S. 186, 196 (1986), we said: "The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed." Thus, the public indecency statute furthers a substantial government interest in protecting order and morality. [501 U.S. 560, 570] This interest is unrelated to the suppression of free expression. Some may view restricting nudity on moral grounds as necessarily related to expression. We disagree. It can be argued, of course, that almost limitless types of conduct - including appearing in the nude in public - are "expressive," and in one sense of the word this is true. People who go about in the nude in public may be expressing something about themselves by so doing. But the court rejected this expansive notion of "expressive conduct" in O'Brien, saying: "We cannot accept the view that an apparently limitless variety of conduct can be labelled "speech" whenever the person engaging in the conduct intends thereby to express an idea." 391 U.S., at 376 . And in Dallas v. Stanglin, 490 U.S. 19 , we further observed: "It is possible to find some kernel of expression in almost every activity a person undertakes - for example, walking down the street or meeting one's friends at a shopping mall - but such a kernel is not sufficient to bring the activity within the protection of the First Amendment. We think the activity of these dance-hall patrons coming together to engage in recreational dancing - is not protected by the First Amendment." Id., at 25. Respondents contend that, even though prohibiting nudity in public generally may not be related to suppressing expression, prohibiting the performance of nude dancing is related to expression because the state seeks to prevent its erotic message. Therefore, they reason that the application of the Indiana statute to the nude dancing in this case violates the First Amendment, because it fails the third part of the O'Brien test, viz: the governmental interest must be unrelated to the suppression of free expression.

But we do not think that, when Indiana applies its statute to the nude dancing in these nightclubs it is proscribing nudity because of the erotic message conveyed by the dancers. [501 U.S. 560, 571] Presumably numerous other erotic performances are presented at these establishments and similar clubs without any interference from the state, so long as the performers wear a scant amount of clothing. Likewise, the requirement that the dancers don pasties and a G-string does not deprive the dance of whatever erotic message it conveys; it simply makes the message slightly less graphic. The perceived evil that Indiana seeks to address is not erotic dancing, but public nudity. The appearance of people of all shapes, sizes and ages in the nude at a beach, for example, would convey little if any erotic message, yet the state still seeks to prevent it. Public nudity is the evil the state seeks to prevent, whether or not it is combined with expressive activity. This conclusion is buttressed by a reference to the facts of O'Brien. An act of Congress provided that anyone who knowingly destroyed a selective service registration certificate committed an offense. O'Brien burned his certificate on the steps of the South Boston Courthouse to influence others to adopt his anti-war beliefs. This Court upheld his conviction, reasoning that the continued availability of issued certificates served a legitimate and substantial purpose in the administration of the Selective Service System. O'Brien's deliberate destruction of his certificate frustrated this purpose and "for this noncommunicative aspect of his conduct, and for nothing else, he was convicted." 391 U.S., at 382 . It was assumed that O'Brien's act in burning the certificate had a communicative element in it sufficient to bring into play the First Amendment, id., at 376, but it was for the noncommunicative element that he was prosecuted. So here with the Indiana statute; while the dancing to which it was applied had a communicative element, it was not the dancing that was prohibited, but simply its being done in the nude. The fourth part of the O'Brien test requires that the incidental restriction on First Amendment freedom be no greater than is essential to the furtherance of the governmental interest. As indicated in the discussion above, the [501 U.S. 560, 572] governmental interest served by the text of the prohibition is societal disapproval of nudity in public places and among strangers. The statutory prohibition is not a means to some greater end, but an end in itself. It is without cavil that the public indecency statute is "narrowly tailored;" Indiana's requirement that the dancers wear at least pasties and a G-string is modest, and the bare minimum necessary to achieve the state's purpose. The judgment of the Court of Appeals accordingly is Reversed.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-45404 August 7, 1987 G. JESUS B. RUIZ, petitioner, vs. ENCARNACION UCOL and THE COURT OF APPEALS, respondents.

such a petition defies logic or reason. It is totally inexplicable how a member of the bar could be so careless or, if the act was deliberate, could have the courage to come before this Court asking us to review a dissenting opinion. Counsel is warned that we do not find his mistake in the slightest bit amusing. Turning now to the present appeal, plaintiff-appellant Ruiz contends that there can be no res judicata since nowhere in its decision did the trial court pass upon the civil aspect of the criminal case nor did it make any express declaration that the fact on which said case was predicated did not exist. He cites the pertinent provisions of Article 29 of the Civil Code and Rule III, Section 3 subsection (c) of the Rules of Court which respectively provide: ART. 29. When the accused in a criminal prosecution is acquitted on the ground that his guilt has not been proved beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted. ... xxx xxx xxx RULE III, Sec. 3(c) Extinction of the penal action does not carry with it extinction of the civil, unless the extinction proceeds from a declaration in a final judgment that the fact from which the civil might arise did not exist. ... We may also mention Article 33 of the Civil Code which gives an offended party in cases of defamation, among others, the right to file a civil action separate and distinct from the criminal proceedings whether or not a reservation was made to that effect. The plaintiff-appellant's contentions have no merit. The right of the plaintiff-appellant under the above provisions to file the civil action for damages based on the same facts upon which he instituted the libel case is not without limitation. We find the appeal of G. Jesus B. Ruiz without merit. We see no advantage or benefit in adding to the clogged dockets of our trial courts what plainly appears from the records to be a harassment suit. In acquitting Encarnacion Ucol of the libel charge, the trial court made these factual findings: Clearly then, Atty. Ruiz filed the instant Criminal Case against Encarnacion Ucol as retaliation for what he believed was an act of ingratitude to him on the part of her husband. The precipitate haste with which the administrative complaint was filed shows that he was the one personally interested in the matter. All that Agustina Tagaca told him was double hearsay. The incident, if there was, happened between the accused and Ceferino in the absence of Agustina; so that, all that Ceferina allegedly told her, and she in turn told Atty. Ruiz, was undoubtedly double check hearsay; and Atty. Ruiz should therefore check the facts with Ceferino, but he did not do that, and he did not even present Ceferino as a witness. For these reasons, accused has every reason to believe that Atty. Ruiz was the author who concocted the charges in the administrative complaint and had his laundrywoman, complainant Agustina Tagaca, sign it. Agustina has very little education and could hardly speak English, yet the administrative complaint was written in polished English, and who else but Atty. Ruiz could have authored those phrases in the complaint: "The retention of Mrs. Ucol in this government service is inimical to the good intentions of the Department to serve humanity and a disgrace and liability to

GUTIERREZ, JR., J: This is an appeal from the order of the Court of First Instance of Ilocos Norte dismissing the plaintiff-appellant's complaint for damages against defendant-appellee on the ground of res judicata. The issue involved being a pure question of law, the appellate court certified the appeal to us for decision on the merits. The facts are not disputed, Agustina Tagaca, laundrywoman for plaintiff-appellant Atty. Jesus B. Ruiz filed an administrative charge against defendant-appellee Encarnacion Ucol, a midwife in the health center of Sarratt Ilocos Norte. In her answer to the charges, Ucol alleged that Tagaca was merely used as a tool by Atty. Ruiz who wanted to get back at the Ucol's because of a case filed by Encarnacion Ucol's husband against Ruiz. She was also alleged to have made remarks that Atty. Ruiz instigated the complaint and fabricated the charges. The administrative case was dismissed. Ruiz decided to file his own criminal complaint for libel against Ucol based on the alleged libelous portion of Ucol's answer. Upon arraignment, Ucol entered a plea of not guilty. During the proceedings in the libel case, complainant Atty. Ruiz entered his appearance and participated as private prosecutor. After trial, the lower court rendered judgment acquitting Ucol on the ground that her guilt was not established beyond reasonable doubt. No pronouncement was made by the trial court as to the civil liability of the accused. Instead of appealing the civil aspects of the case, Ruiz filed a separate complaint for damages based on the same facts upon which the libel case was founded. Ucol filed a motion to dismiss stating that the action had prescribed and that the cause of action was barred by the decision in the criminal case for libel. The trial court granted the motion to dismiss on the ground of res judicata. As earlier stated, on appeal, the Court of Appeals certified the case to us, the only issue being whether or not the civil action for damages was already barred by the criminal case of libel. Before going into the merit of this appeal, it is noteworthy to mention that there are actually two cases now before us involving the contending parties. Defendant-appellee Ucol filed an "appeal by certiorari" before this Court questioning the dissenting opinion of the Court of Appeals. Ucol prays for a ruling "that the respondent Court of Appeals committed a grave abuse of discretion in not dismissing the present case but instead in ordering the same remanded to the lower court for further proceedings ... ." Any ordinary student in law school should readily know that what comprises a decision which can be the subject of an appeal or a special civil action is the majority opinion of the members of the court, but never the dissenting opinion. Moreover, no decision on appeal has as yet been rendered in this case. The act of the defendant-appellee's counsel in filing

present administration." As will be shown later on, it appears that it is this complaint signed by Agustina, but authored by Atty. Ruiz, that is libelous and not the respondent's answer; and even, assuming that the administrative complaint may not have been impelled by actual malice, the charge(s) were certainly reckless in the face of proven facts and circumstances. Court actions are not established for parties to give bent to their prejudice. The poor and the humble are, as a general rule, grateful to a fault, that intrigues and ingratitude are what they abhor. (Amended Record on Appeal, pp. 8-10). The findings in the criminal case, therefore, show a pattern of harassment. First, petitioner Ruiz had something to do with the administrative complaint. The complaint was dismissed. Second, he filed a criminal case for libel based on portions of Mrs. Ucol's answer in the administrative case. Third, he acted as private prosecutor in the criminal case actively handling as a lawyer the very case where he was the complainant. And fourth, after the accused was acquitted on the basis of the facts stated above, Atty. Ruiz pursued his anger at the Ucols with implacability by filing a civil action for damages. As stated by the trial judge, "court actions are not established for parties to give bent to their prejudice." This is doubly true when the party incessantly filing cases is a member of the bar. He should set an example in sobriety and in trying to prevent false and groundless suits. In Roa v. de la Cruz, et al. (107, Phil. 10) this Court ruled: Under the above provisions (Art. 33 of the Civil Code), independently of a criminal action for defamation, a civil suit for the recovery of damages arising therefrom may be brought by the injured party. It is apparent, however, from the use of the words "may be," that the institution of such suit is optional." (An Outline of Philippine Civil Law by J.B.L. Reyes and R.C. Puno, Vol. I, p. 54) In other words, the civil liability arising from the crime charged may still be determined in the criminal proceedings if the offended party does not waive to have it adjudged, or does not reserve his right to institute a separate civil action against the defendant. (The case of Reyes v. de la Rosa (52 Off. Gaz., [15] 6548; 99 Phil., 1013) cited by plaintiff in support of her contention that under Art. 33 of the New Civil Code the injured party is not required to reserve her right to institute the civil action, is not applicable to the present case. There was no showing in that case that the offended party intervened in the prosecution of the offense, and the amount of damages sought to be recovered was beyond the jurisdiction of the criminal court so that a reservation of the civil action was useless or unnecessary.) (Dionisio v. Alvendia, 102 Phil., 443; 55 Off. Gaz., [25]4633.]) In the instant case, it is not disputed that plaintiff Maria C. Roa upon whose initiative the criminal action for defamation against the defendant Segunda de la Cruz was filed did not reserve her right to institute it, subject, always to the direction and control of the prosecuting fiscal. (Section 15 in connection with section 4 of Rule 106, Rules of Court; Lim Tek Goan v. Yatco, 94 Phil., 197). The reason of the law in not permitting the offended party to intervene in the prosecution of the offense if he had waived or reserved his right to institute the civil action is that by such action her interest in the criminal case has disappeared. Its prosecution becomes the sole function of the public prosecutor. (Gorospe, et al., v. Gatmaitan, et al., 98 Phil., 600; 52 Off. Gaz., [15] 2526). The rule, therefore, is that the right of intervention reserved to the injured party is for the sole purpose of enforcing the civil liability

born of the criminal act and not of demanding punishment of the accused. (People v. Orais, 65 Phil., 744; People v. Velez, 77 Phil., 1026; People v. Flores, et al., G.R. No. L-7528, December 18,1957; see also U.S. v. Malabon, 1 Phil., 731; U.S. v. Heery, 25 Phil., 600). Plaintiff having elected to claim damages arising from the offense charged in the criminal case through her appearance or intervention as private prosecutor we hold that the final judgment rendered therein constitutes a bar to the present civil action for damages based upon the same cause. (See Tan v. Standard Vacuum Oil Co., et al., 91 Phil., 672; 48 Off. Gaz., [7] 2745.). We are, therefore, constrained to dismiss the present appeal. Atty. Ruiz has more than had his day in court. The then court of first instance acquitted Mrs. Ucol and stated in the dispositive portion of its decision that her guilt was not established beyond reasonable doubt. A review of the court's findings, however, indicates that the disputed Answer of Mrs. Ucol in the administrative case contains no libel. As stated by the trial court, "As will be shown later, it appears that it is this complaint signed by Agustina, but authored by Atty. Ruiz, that is libelous and not the respondent's answer." (Emphasis supplied). The court found the charges against Ucol, if not malicious, at least reckless in the face of proven facts and circumstances. The trial court stated. Analyzing defendant's answer Exh. "5", even with meticulous care, the Court did not find any defamatory imputation which causes dishonor or discredit to the complainant. She was the victim of an unprovoked, unjustified and libelous attack against her honor, honesty, character and reputation; she has a right to self-defense, which she did in her answer, to protect her honesty and integrity and the very job upon which her family depend for their livelihood. Every sentence in her answer (Exh. "5") is relevant, and constitutes privileged matter. She did not go further than her interest or duties require. She did not go beyond explaining what was said of her in the complaint for the purpose of repairing if not entirely removing the effects of the charge against her. She had absolutely no motive to libel Atty. Ruiz who, by the way, cast the first stone. ... (Amended Record on Appeal pp. 10-11) WHEREFORE, the appeal filed by appellant Jesus B. Ruiz is DISMISSED for lack of merit. The petition filed by petitioner Encarnacion Ucol is likewise DISMISSED for patent lack of merit. SO ORDERED.