Republic of the Philippines SUPREME COURT Manila EN BANC DECISION August 21, 1937 G.R. No.

L-43361 THE PROVINCE OF CAMARINES SUR, applicant, vs. THE DIRECTOR OF LANDS, oppositor-appellee. CIRIACO CHUNACO and JOSE ARAMBURO, oppositors and appellants. Vera and Vera and J. E. Blanco for appellants. Office of the Solicitor-General Hilado for appellee. LAUREL, J.: On February 12, 1930, the Province of Camarines Sur, thru its provincial fiscal, filed with the Court of First Instance of said province an application for the registration of several parcels of land comprised in the agricultural school site of the province. The Director of Lands opposed the registration on the ground that these parcels are public lands. An opposition was also filed on January 19, 1931, by Ciriaco Chunaco but only with respect to lot No. 3 of Plan II-12638, Amd., Exhibit A. Jose Aramburo, who had sold this lot to Ciriaco Chunaco, joined the latter on account of his warranty in case of eviction. The present controversy relates only to lot No. 3 as the other parcels of land had already been adjudicated by the Court of First Instance of Camarines Sur to the applicant and the Insular Government. The parties appear to have agreed upon the identity of the controverted lot (t. s. n., pp. 15, 147). After hearing, His Honor, Judge Eulalio Garcia, on October 29, 1934, denied the application of the Province of Camarines Sur, overruled the opposition of Ciriaco Chunaco and Jose Aramburo, and declared lot No. 3 public land which had been reserved by the GovernorGeneral on October 19, 1933 for use as site of the Camarines Sur Agricultural School. The oppositors, Ciriaco Chunaco and Jose Aramburo, moved for reconsideration and new trial which motion was denied. Exception was taken and the case finally elevated to this court by bill of exceptions. Oppositors by their counsel assign ten errors all of which, however, with the exception of the last one with reference to the alleged error in refusing a new trial may be reduced to one single propositions, namely: Whether or not upon the evidence presented, the court below erred in declaring lot No. 3 public land subject to reservation by the Chief Executive

for the stated public purpose, instead of adjudicating the same and ordering its registration in the name of the oppositor-claimant Ciriaco Chumaco. Appellants claim that they and their predecessor in interest have been since time immemorial in the continuous, open, peaceful and adverse possession of lot No. 3 under a bona fide claim of ownership and that, therefore, they are entitled to the registration of the same under the provisions of Act No. 496, or, in the alternative, under the beneficial provisions of Act No. 926, section 54, paragraph 6, and Act No. 2874, Chapter VIII, section 45, paragraph (b), respectively. The appellants called to the witness-stand eight witnesses to substantiate their claim. Documentary evidence was also presented and admitted (Exhibits 1 to 23). No claim is made that the lot had been acquired either by purchase from or composition title with the Government (Royal Decree of June 25, 1880). No step was even taken towards securing possessory information title under the Royal Decree of February 13, 1984 and the provisions of the Spanish Mortgage Law of July 14, 1983. The appellants, therefore, cannot invoke the provisions of section 19, paragraph 3, of Act No. 496, as amended by section 1 of Act No. 2164, which require that an applicant for registration of title must claim to own or hold any land under a possessory information title, acquired under the provisions of the Mortgage Law of the Philippine Islands and the general regulations for the execution of same. (Fernandez Hermanos vs. Directors of Lands, 57 Phil. 929, 933.) The failure of the appellants predecessors in interest to legalize their possession of the land in question by the institution of possessory information proceedings for the gratuitous grant to file from the Spanish Government, thereby perfecting and covering their possessory right into one of ownership, caused the land to revert to the Government. (Fuster vs. Director of Lands, G. R. No. 40129, 61 Phil. 687; Heirs of Datu Pendatun vs. Director of Lands, 59 Phil. 600.) In the first cited case, this court said: No existe en autos prueba alguna que demuestre que Severino Tamayo y Juan de la Cruz, ni sus compaeros, hayan solicitado la composicion de los terrenos en controversia de acuerdo con el mencionado Reglamento, cuyo objetivo era precisamente el legitimar la posesion de los que posein ilegitimamente terrenos del Estado, ni de que sehayan acogido a los beneficios del Real Estado, ni de que se hayan acogido a los beneficious del Real Decreto de 13 de febrero de 1894 que tenia por especial fin dar una vez mas oportunidad a dichos posedores a que pudiesen obtener titulo gratuito previos los tramites de informacion posesories, ni tampoco a los del Real Decreto de 21 de febrero de 1895. Si fuera cierto, como la solicitante apelada Antonia C. Fuster ha tratado de probar, que Severino Tamayo y Juan de la Cruz y compaeros hubieran estado en posesion continua del referido terreno y lo hubieran estado cultivando por media de inquilinos hasta que traspasaron sus derechos sobre el mismo a Matias Fuster el 15 de mayo de 1895 (Exh. I), no se comprende como no se habian acogido ni los beneficios del Real Decreto de 25 de junio de 1880, para lo cual tenian tiempo hasta el 17 de abril de 1894, ni a los del Real Decreto de 21 de febrero de 1895, para legitimar su posesion y adquirir titulo gratuito de propiedad sobre dicho terreno.

Si hubiesen estado tan empeados e interesados en cultivar el citado terreno, hasta el extremo de poner encargados en el, por que no pusieron el mismo empeo e interes en legitimar su posesion, y adquirir titulo gratuito de propiedad sobre el mismo, aprovechandose de la oportunidad y de los medios que las leyes les brindaban para ello y asegurando de este modo el fruto de sus desvelos, trabajo y privaciones? No se pretende que no habian tenido conocimiento de dichos reales decretos; por consiguiente, es de presumir que sa cumplido con lo ordenado en el articulo 17 de Reglamento tantas veces citado de que se diese la mayor publicidad al mismo en las Islas a fin de que se conocieran las facilidades que por sus disposiciones se daban para legitimar la posesion ilegal de terrenos del Estado y adquirir la propiedad de los mismos. (Fuster vs. Director of Lands, supra.) The appellants, however, also invoke the benefits of paragraph 6 of section 54 of Act No. 926, as amended by paragraph (b) of section 45 of Act No. 2874 and contend that they and their predecessors in interest had possessed the land not only for a period of ten years next preceding the 26th day of July 1904 as said Act No. 926 provides, but from the year 1874. They claim that the repeal of Act No. 926 by Act No. 2874 cannot adversely affect their vested right of ownership under the former Public Land Law because of the constitutional inhibition against the enactment of ex post facto law or bill of attainder. In the first place, it should be observed that the constitutional provision that no ex post facto law or bill of attainder shall be enacted cannot be invoked to protect allegedly vested civil rights, because it is only applicable to criminal proceedings, and into to civil proceedings which affect private rights retrospectively (See Mekin vs. Wolfe, 2 Phil. 74; Paynaga vs. Wolfe, 2 Phil. 146; U. S. vs. Ang Kan Ko, 6 Phil. 376; Concepcion vs. Garcia, 54 Phil. 81; and U. S. vs. Heinszen, 206 U. S., 370; 51 Law. ed., 1098; 27 Sup. Ct. Rep., 742; 11 Ann. Cas., 688). In the second place, section 54 of Act No. 926 provides that . . . persons or their legal successors in right, occupying public lands in the Philippine Islands, or claiming to own any such lands or an interest therein, but whose titles to such lands have not been perfected, may apply to the Court of Land Registration of the Philippine Islands for confirmation of their claims and the issuance of a certificate of title therefor . . . . No application was filed under Act No. 926 by the appellants or their predecessors in interest, and it is clear that without such application no confirmation of their claims could be had and much less the issuance of a certificate of title in their favor. Under these circumstances, no vested right could have accrued to them. The claim that the appellants should, in the alternative, be the recipients of the beneficial provisions of Act No. 2874 (par. [b], sec. 45) is also without merit. Paragraph (b), section 45 of Act No. 2874 substantially incorporates paragraph 6 of section 54 of Act No. 926. The possession and occupation under both laws must not only be under a bona fide claim of ownership but must also be open, continuous, exclusive and notorious to give rise to a presumptive grant from the State.

It has been uniformly held by his court that to justify judicial confirmation of title to a public agricultural land, the claimant must prove actual and physical occupation of said land, and that the possession must be continuous, open, exclusive, notorious, adverse and under a bona fide claim of ownership from July 26, 1894 (Tiglao vs. Insular Government, 7 Phil. 80 affd in 215 U. S., 410; 54 Law. ed., 257; 30 Sup. Ct. Rep., 129; 40 Phil. 1029; Vao vs. Insular Government, 41 Phil. 161; Government of the Philippines Islands vs. Abadejos, G. R. No. 21184, March 12, 1924; Gallado vs. Director of Lands, G. R. No. 23109; Fernandez Hermanos vs. Director Lands, supra; Heirs of Datu Pendatun vs. Director of Lands, supra; Director of Lands vs. Abarca and Enage, G. R. No. 38277, 58 Phil. 950; Director of Lands vs. Abdul, G. R. No. 36867, 58 Phil. 932; Government of the Philippine Islands vs. Agta, G. R. No. 36479, 57 Phil. 979) up to the date of the filing of the application or at least up to July 1, 1919 when Act No. 2874 was enacted (Ongsiaco vs. Magsilang, 50 Phil. 380; Government of Philippine Islands vs. Adelantar, 55 Phil,. 703; Government of the Philippine Island vs. Abadejos,supra; Government of Philippine Island vs. Abad, 56 Phil. 75). If the possessory right has been enjoyed in the manner set forth in the foregoing cases, it ripens into one of presumptive ownership. The appellants, to be sure, attempted to prove the element of the required possession. We find, however, the evidence on his point unsatisfactory. Their witness Timoteo Velasco, Jose Bantugay, Mariano Berba and Felix Bolayon testified that the original owner of the land in question was one Juan Garay who, according to the first witness, had possessed the land since 1874; that during the period of the possession of Garay the land had been dedicated to the planting and cultivation of abaca, coconuts, rice, corn, camotes and other plants, as well as to the pasture of cattle and carabaos, and that Garay employed encargados and day-laborers ( jornaleros) for the purpose. But their own testimony shows that the possession of Juan Garay did not last long enough as he left the Philippines before the revolution against Spain and died while away. And while the possession of Garay might have passed to Ceferino Aramburo, father of the appellant, Aramburo, who died in 1899, began to occupy the land in question or any portion of it. The record is notably deficient of proof both of the exact commencement of possession and its continuity. As a matter of fact, the appellant Jose Aramburo himself admit this lack of continuity of possession when, upon cross-examination by counsel for the Government, he testified that when his father died in 1899, the time when he was supposed to have inherited the land in question he was then in Spain and came to the Philippines only in 1911 or 1912 (t. s. n., p. 162) and actually saw and took possession of the land only in 1913 (t. s. n., p. 158). Upon the testimonial evidence presented we cannot give weight to their alleged possession through their encargados. While Timoteo Velasco testified that Ceferino Aramburo had as encargados Petronilo Guevara, Mariano de las Llagas and Manuel Pelayo (t. s. n., pp. 5, 6), Mariano Berba who also testified for the appellants declared that Petronilo Guevara was Garays encargado (t. s. n., p. 166). Another of the appellants witnesses, Felix Bolayon, contradicted this assertion of Mariano Berba that Petronilo Guevara served under Garay by stating that Garays encargado was his uncle, Estanislao Gonos (t. s. n., p. 173). Furthermore, the appellant Jose Aramburo who took possession of

the land only in 1913 declared that after the death of Petronilo Guevara, he named Manuel Pelayo as encargado (t. s. n., p. 152), thus discounting the statement of Timoteo Velasco who, as stated, expressly included one Mariano de las Llagas among the encargados of Jose Aramburo. Again, the witness Timoteo Velasco admitted that he lived near the land in question only up to 1902 (t. s. n., p. 4) and we are at a loss to understand how he could affirm that he knew Petronilo Guevara and Manuel Pelayo to be encargados of Jose Aramburo when by the testimony of the latter, Petronilo Guevara and Manuel Pelayo only became his encargados in 1913. Manuel Pelayo who also took the witness stand for the appellants positively declared that he only knew the land in question in 1922 and remained therein for only two years up to 1924 (t. s. n., p. 130). The appellants claim of ownership, therefore, fails for lack of sufficient proof of continuity of possession on their part or on the part of their predecessors in interest during the time required by section 45, paragraph (b), of Act No. 2874. (Heirs of Luno vs. Marguez, 48 Phil. 855; Government of the Philippine Island vs. Heirs of Abella, 49 Phil. 374, 380; Fernandez Hermanos vs. Director of Lands,supra.) No competent or satisfactory evidence was presented by the appellants to establish the privity of title or possession between Garay, the alleged successor in interest. Antonio Gaya and Leopoldo Terran testified that in the year 1900, upon the arrival of the American in the Philippines, the house of Ceferino Aramburo, deceased father of the appellant Jose Aramburo, together with several other houses in the town of Daraga, Albay, were set on fire by other of one General Pawa, a revolutionary leader, thus reducing to ashes the said house of Ceferino Aramburo and the safe therein kept by the latter to shelter the papers and documents relating to his property. With respect to the testimony of those two witnesses, however, the trial court observed: . . . Estos testigos Antonio Gaya y Leopoldo Terran, tampoco han afirmado que habian visto y leido el documento o titulo a nobre de Ceferino Aramburo del terreno en cuestion; si fuera verdad haberse quemado el documento del terreno en cuestion, la existencia del supuesto titulo que se alega haberse quemado en un incendio que tuvo lugar el ao 1900 en el Municipio de Daraga, Albay, era muy facil comprobarlo por los medios siguientes: 1. Por una copia de la escritura que indudablemente se podria hallar en el protocolo del notario publico que intervino en la redaccion y otorgamiento de dicho documento; 2. La naturaleza y relacion de los documentos de Ceferino Aramburo que se alegan haber sido destrozados por el incendio; y 3. Por los testigos que intervinieron en la cesion en pago de una deuda de Juan Garay a favor de Ceferino Aramburo. (B. E., pp. 16, 17.) After rendition of judgment by the lower court, appellants filed a motion for a new trial on the ground of newly discovered evidence, the evidence consisting of documents said to have been found in the archives of the National Library. The nature and character of these documents were not even mentioned to apprise the court of their importance and value and

the lower court denied the motion. On appeal to this court, announcement is made by the appellants in their brief that a motion for a new trial would be filed because of the discovery of documentary evidence, but up to this time no such motion has been received. The trial court, in declining to accept the explanation of witnesses for the oppositor regarding the alleged destruction of papers and documents pertaining to the property in controversy, contrary to the contention of counsel for the oppositors-appellants, did not apply the statute of frauds (sec. 335, Code of Civil Procedure) but followed the ruling of this court in the cases of Director of Lands vs. Abarca and Enage, supra, and Director of Lands vs. Abdul, supra. In the first case, this court said: The claimant did not testify, but his attorney presented two witnesses, Estanislao de la Cruz and Higino Enage, aged 50 and 56, respectively, to show that the lot in question formerly belonged to Eleno de la Cruz, and that it was purchased from him by Enage, the father of the claimant, but it is clear from their testimony that this land, or rather a part of it, was in the possession of Emeterio Enage when they first knew it. No competent evidence was offered to show that Emeterio Enage acquired this lot from Eleno de la Cruz, nor does the evidence show with any certainly when Emeterio Enage, who died in 1910, began to occupy a portion of the land in question. And in the second case, this court held: There is absolutely no documentary evidence that Gigling himself ever obtained title to the property, and there is no proof that he had had possession for a time sufficiently long to justify the court in awarding ownership to him. There is no document crediting that the interest of Gigling was ever conveyed to Conway. It result that the action of the trial court in awarding the lots mentioned to James Conway was erroneous. The mere fact, relied upon by the appellee, that the Province of Lanao, through its division superintendent of education, offered to buy the claim of Conway to these lots from his administrator is of no value as proof of title. Even the evidence respecting the alleged possessory acts exercised by the appellants predecessors in interest and their agent is conflicting. Whereas some of their witness testified that the controverted parcel had been dedicated by the original owner thereof and his alleged immediate successor in interest to the cultivation of abaca, coconuts, rice, corn, camotes and other plants, other, more particularly the appellant Jose Aramburo himself, declared that the land had never been dedicated to anything else except cattle grazing (t. s. n., p. 152), and that the earth dike ( pilapiles) and irrigation canal did not really exist until after 1918 when the Government Agricultural School of Camarines Sur actually took the physical and material occupation and possession of the Land, and began to improve the same (t. s. n., pp. 10, 99, 106, 110, 111, 113-117, 142), While grazing live stock over land is of course to be considered with other acts of dominion to show a possession, the mere occupancy of land by grazing live stock upon it, without substantial inclosures or other permanent improvements, is not sufficient to support a plea of limitations, and this is especially true where the claimant used no means to restrain the live stock to any particular

land, or where the live stock of other was not excluded from the land. Such a use, it has been said is to be deemed merely permissive, whether the lands are public or private, and may be terminated at any time. (2 C. J., pp. 67, 68.) And in the case of Director of Lands vs. Absolo (46 Phil. 282), it was held: The more fact that during the Spanish regime one had made on public land some inclosures for his cattle and cottages for his shepherds and said cattle had been pasturing thereon for a number of years, and said shepherds cultivated a small portion thereof for a like period, is not a possession under claim of title, when it appears that he did not break up any ground, or bring the land to a state of cultivation and the cattle of other people grazed thereon, just as his cattle did, and the cultivation of the land by his shepherds was not permanent but casual, and stopped as soon as said shepherds ceased to live on the land on account of all the cattle having perished. (Syllabus. See also Roman Catholic Bishop of Lipa vs. Municipality of Taal, 38 Phil. 367, 372.) Counsel for the appellant vigorously assert in their brief that the Province of Camarines Sur and the Insular Government had recognized the ownership of the appellants of the land in question by the assessment thereof three times by the provincial assessor of Camarines Sur in the name of Jose Aramburo. Assessment alone, however, is of little value as proof of title. Mere tax declaration does not vest ownership of the property in the declarant (Evangelista vs. Tabayuyong, 7 Phil. 607; Casimiro vs. Fernandez 9 Phil. 562; Elumbaring vs. Elumbaring, 12 Phil. 384). Neither is the alleged offer (Exhibit 7, p. 37, rec.) made by the provincial governor to buy the claims of the appellant Jose Aramburo any concession or evidence of ownership (Director of Lands vs. Abdul, supra); nor does the issuance of a certificate of repurchase by the provincial treasurer of Camarines Sur in favor of Jose Aramburo upon the redemption payment of the accused taxes on the land up to 1929 vest in him any title or operate as an estoppel against the Government. The repurchase certificate was issued with the understanding that it does not acknowledge a better right to the properties being redeemed but said Jose Aramburo than that had by their former owners prior to the forfeiture thereof and without prejudice to the right of the Government to contest the title thereto, if deemed necessary, in proper proceedings. (Exhibit 6, p 36, rec.) Furthermore, the purchaser of land acquires the interest held by the delinquent owner and the Government is not deemed to have included in the conveyance the title which it holds over the land. (Government of the Philippine Island vs. Adriano, 41 Phil. 112.). The decision of the trial court, being on the whole supported by the evidence on record, is hereby affirmed, with costs against the appellants. So ordered.

Republic of the Philippines SUPREME COURT Manila

EN BANC G.R. No. L-1867 April 8, 1950

CARMEN DE LA PAZ VDA. DE ONGSIAKO, petitioner, vs. TEODORICO GAMBOA and PANTALEON GAMBOA ET AL., respondents. Jose Dacquel and Florencio Florendo for petitioner. TORRES, J.: The question raised primarily in this appeal by certiorari is as to whether or not contracts of tenancy, entered into by petitioner and respondents prior to the date when Republic Act No. 34 became effective, are governed by the provisions thereof and not by the provisions of Act No. 4054 and Commonwealth Act No. 178, which were in force when those contracts were signed. At first blush, it would seem that the above query should be answered in the negative, on the ground that, as contended by counsel for petitioner, the application of the provisions of Republic Act No. 34 which amended those of Act No. 4054 as amended by Commonwealth Act No. 178 (a) "clearly and palpably impair the obligation of contracts which is prohibited by the Constitution"; and (b) give said Republic Act No. 34 a retroactive effect, which would also "be contrary to section 10 of Bill of Rights of the Constitution." It appears that during the period of June to July, 1946, pursuant to the provisions of section 8 of Act No. 4054, as amended by Commonwealth Act No. 178, petitioner and respondents entered into tenancy contracts, which, among other things, provided for a 50-50 division of the crop, under a stipulation of the effect that the petitioner-land-owner would exclusively shoulder the planting expenses which shall not be more than ten planters for every hectare, the wages for each planter to be determined at the prevailing rate generally charged in the community, and that in return, the tenant shall solely defray the harvesting expenses (Translation of Tenancy Contracts, Annex B). A short time thereafter, that is, on September 30, 1946, Republic Act No. 34 was approved by the Congress of the Philippines, and on November 12, 1946, by Proclamation No. 14, the President of the Philippines made effective the provisions of said Act No. 4054, known as "The Philippine Rice Share Tenancy Act," as amended by said Republic Act No. 34, "to be in full force and effect throughout the Philippines." During the liquidation of the palay crop for the agricultural year 1946-1947, the herein respondentstenants sought the application of the provisions of the new law on the crop division, by filing the corresponding complaints with the Tenancy Law Enforcement Division, on the ground that in the harvest of present agricultural year (1946-1947), they could not agree on: (a) the liquidation of the crop; (b) the division thereof; (c) the apportionment of their expenses; and (d) the settlement of their accounts. The Tenancy Law Enforcement Division, after going over the facts and the question involved, found that, although according to the contracts between respondents and petitioner, it was stipulated that the division of the crop would be on the 50-50 basis, in the light of the provisions of section 7(a) of Republic Act No. 34, such stipulations is against public policy, and therefore, the crop division should be on the 55-45 basis in favor of the tenants, as provided in the amendatory law.

The ruling of the Tenancy Law Enforcement Division was appealed to the Court of Industrial Relations, which, in its decision (Annex D), sustained the findings and conclusion of the Tenancy Law Enforcement Division of the Department of Justice, and ruled that the division of the share of the tenants and landlord should be on the basis of 55-45, respectively. The court further found that inasmuch as the stipulation made in paragraph 12 of the tenancy contracts, to the effect that the respondents herein, not being against public policy, the law or the morals, said division would be "from the net produce, after deducting the seedlings and threshing expenses." Unlike the indifferent attitude shown by the Spanish Government in the Philippines towards the fate of the laboring class whether they were tillers of the land or earning their wages in a factory even prior to the adoption of our Constitution, the Philippine Government, under the American regime, had, from time to time, shown its deep concern over the well-being of the wage earners. Our statute books are witness to that fact; they contained legislation enacted and intended to ameliorate the conditions of the laboring man. The administration, under the leadership of Manuel L. Quezon, became social justice minded, and implementing his strong advocacy of social justice, the framers of our Constitution, in section 5 of Article II of our fundamental law, adopted the principle that "the promotion of social justice to insure the well-being and economic security of all the people should be the concern of the State." Since then, the government has always been, by fast strides, drawing near its goal the amelioration, the well-being of the conditions of the working man. The legislation which particularly concerns the relations between landowner and tenant, has been the object of constant attention on the part of the government, as shown in the various laws that have been successively enacted for that purpose, and which, under those circumstances, may be considered as having the nature of remedial legislation. That Republic Act No. 34 was enacted on that basis, is clearly shown in the recommendation of the President for the passage of House Bill No. 582, which became Republic Act No. 34. It says: This bill seeks to amend the Rice Share Tenancy Act in such a way to make the division of the crops more equitable to the tenants . . . . The bill embodies the principal recommendations of the President of the Philippines, as outlined in the message send by His Excellency to Congress. . . . The principal feature of this bill is to increase the participation of the tenants in the production of the land that he is cultivating. This participation is further increased as the productivity of the land decreases. Contrary to the contention of counsel, Republic Act No. 34 is, therefore, not an ex post facto law, for it is well-known that the prohibition of ex post facto laws applies only to criminal or penal, and not to civil matters. It is well established that the constitutional prohibition of the passage of ex post facto laws applies only to criminal or penal matters, and not to laws which concern civil matters or proceedings generally, or which affect or regulate civil or private rights. Nor does such constitutional prohibition apply to laws affecting civil remedies. The prohibition can not be evaded by giving a civil form to provisions and are in effect criminal as in the guise of prescribing qualifications for holding office or praticing certain callings. (Ex parte Garland, 4 Wallace 33, 18 Law. ed., 366; Cummings vs. Missouri, 4 Wallace, 277, 18 Law. ed., 356.) (16 C.J.S., pp. 889-891.) Neither said Act impairs the obligation of contracts in violation of paragraph 10, section 1 of Article III of the Constitution. Corpus Juris Secundum, summarizing the interpretations given by the American courts, says that constitutional provisions against impairing the obligation of contracts do not prevent the same from being subject to legislation enacted by the State in the proper exercise of its police power. Thus, at pages 701, 702, Vol. 16, it says:

The prohibition contained in constitutional provisions against impairing the obligation of contracts is not an absolute one and it is not to be read with literal exactness like a mathematical formula. Such provision are restricted to contracts which respect property, or some object or value, and confer rights which may be asserted in a court of justice, and have no application to statute relating to public subjects within the domain of the general legislation powers of the State, and involving the public rights and welfare of the entire community affected by it. They do not prevent a proper exercise by the State of its police powers. By enacting regulations reasonably necessary to secure the health, safety, morals, comfort, or general welfare of the community, even the contracts may thereby be affected; for such matter can not be placed by contract beyond the power of the State to regulate and control them. Furthermore, it is very manifest that when our lawmaking body was considering House Bill No. 582, it undoubtedly had in mind the circumstances and conditions surrounding the relations between landlord and tenant. It therefore, could not have failed to take notice of the existence of contracts which stipulated a division of the crop on the 50-50 basis, and had the Congress intended to except those contracts from the operation of the new law (Republic Act No. 34), doubtless, it would have done so by inserting therein the corresponding provision; but on the contrary, it expressly provided therein that a stipulation whereby "the tenant shall receive less than 55 per cent of the net produce ...," is against public policy, which is equivalent to a declaration by the Congress that a stipulation in a contract that the division of the crop shall be on the 50-50 basis, is against public policy. In People vs. Pomar (46 Phil. 440) and in Philippine National Bank vs. Vda. e Hijos de Angel Jose (63 Phil., 814), this court, citing article 1255 of the Civil Code, says that the rule in this jurisdiction is that the contracting parties may establish any agreements, terms, and conditions they deem advisable, "provided they are not contrary to laws, morals or public policy"; and while we have searched in vain for a concrete definition of the term "public policy," in its treatise on the law of contracts, in dealing with agreements against public policy, American Jurisprudence gives a summary of the doctrines laid down by the American courts on this matter. It says xxx xxx xxx

It is a general rule that agreements against public policy are illegal and void. Under the principles relating to the doctrine of public policy, as applied to the law of contracts, courts of justice will not recognize or uphold any transaction which, in its object, operation, or tendency, is calculated to be prejudicial to the public welfare, to sound morality, or to civic honesty. The test is whether the parties have stipulated for something inhibited by the law or inimical to, or inconsistent with, the public welfare. An agreement is against public policy if it is injurious to the interests of the public, contravenes some established interest of society, violates some public statute, is against good morals, tends to interfere with the public welfare or safety, or, as it is sometimes put, if it is at war with the interests of society and is in conflict with the morals of the time. An agreement either to do anything which, or not to do anything the omission of which, is in any degree clearly injurious to the public and an agreement of such nature that it cannot be carried into execution without reaching beyond the parties and exercising an injurious influence over the community at large are against public policy. There are many things which the law does not prohibit, in the sense of attaching penalties, but which are so mischievous in their nature and tendency that on grounds of public policy they cannot be admitted as the subject of a valid contract. The question whether a contract is against public policy depends upon its purpose and tendency, and not upon the fact that no harm results from it. In other words, all agreements the purpose of which is to create a situation which tends to operate to the detriment of the public interest are against public policy and void, whether in the particular case the purpose of the agreement is or is not effectuated. For a particular undertaking to be against public policy actual injury need not be

shown; it is enough if the potentialities for harm are present. Where the precise question as to whether or not a particular agreement is against public policy has not been determined, analogous cases involving the same general principle may be looked to by the courts in arriving at a satisfactory conclusion." (12 Am. Jur., pp. 662-664.) It would thus appear that, while it is the inherent and inalienable right of every man to have the utmost liberty of contracting, and agreements voluntarily and fairly made will be held valid and enforced in the courts, the general right to contract is subject to the limitation that the agreement must not be in violation of the Constitution, the statute or some rule of law (12 Am. Jur., pp. 641642). Finally, Sutherland, in his well-known Treatise on Statutory Construction, says: The intent of a statute is the law. If a statute is valid it is to have effect according to the purpose and intent of the lawmaker. The intent is the vital part, the essence of the law, and the primary rule of construction is to ascertain and give effect to the intent. The intention of the legislature in enacting a law is the law itself, and must be enforced when ascertained, although it may not be consistent with the strict letter of the statute. Courts will not follow the letter of a statute when it leads away from the true intent and purpose of the legislature and to conclusions inconsistent with the general purpose of the act. Intent is the spirit which gives life to a legislative enactment. In construing statutes the proper course is to start out and follow the true intent of the legislature and to adopt that sense which harmonizes best with the context and promotes in the fullest manner the apparent policy and objects of the legislature. (Vol. II, Sutherland, Statutory Construction, pp. 693-695.) The above disposes of the first error assigned by the petitioner in her brief.. As regards the second error, it appears that counsel for petitioner, in making the corresponding assignment, admits that the finding of the Court of Industrial Relations, that the sum of P25 should be the contribution of the petitioner for planting and cultivation expenses for every hectare of land planted, is based "on the preponderance of evidence." Rule 44 of the Rules of Court, governing the procedure to be followed in appeals from an award, order of decision of the Court of Industrial Relations to the Supreme Court, provides that "only questions of law, which must be distinctly set forth, may be raised in the petition" for certiorari from an award, order or decision of the Court of Industrial Relations (section 1 and 2; section 14 of Commonwealth Act No. 103). This Court is not, therefore, empowered to look into the correctness of the findings of fact in an award, order or decision of the Court of Industrial Relations. With the denial of the petition, the decision of the Court of Industrial Relations is hereby affirmed, with costs.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-13777 June 30, 1960

PHILIPPINE NATIONAL BANK, plaintiff, vs. CORNELIO S. RUPERTO, ET AL., defendants. Ramon B. de los Reyes and Santos D. Ordiz for appellee. Cornelio S. Ruperto for appellants. REYES, J. B. L., J.: On August 1, 1951, the plaintiff, Philippine National Bank, filed with the Court of First Instance of Manila a complaint for the recovery of a sum of money allegedly due it from the defendants, Cornelio S. Ruperto and Juana S. Ruperto, under a promissory note as follows: Manila, November 24, 1948 P2,500.00 NINETY DAYS ... after date, for value received, I promise to pay the order of the PHILIPPINE NATIONAL BANK at its Office in ________________________ or Manila, the sum of two thousand five hundred pesos _____________, Philippine Currency, with interest at the rate of 8 percent per annum from Maturity until paid. In case of judicial execution of this obligation or any part of it, the debtor waives all his rights under the provisions of Rule 39, Section 12 of the Rules of Court. In case it is necessary to collect this note by or through an attorney-at-law, the makers and endorsers shall pay 10 per cent of the amount due on the note as attorney's fees. DEMAND AND DISHONOR WAIVED. Holder may accept partial payment reserving his right of recourse against each and all indorsers. (SGD.) CORNELIO S. RUPERTO (SGD.) JUANA S. RUPERTO It is averred that after making partial payments in the sums of P200.00 and P50.00 on March 11, 1949 and May 15, 1950, respectively, defendants failed to make any other payment despite written demands from the plaintiff for the balance. Defendants filed answers, admitting the existence of the debt as evidenced by the promissory note, but alleging, as special defense, that defendant Cornelio Ruperto had offered to pay and tendered payment of the balance of the note by means of his backpay certificate in the amount of P7,079.64 issued by the Insular (National) Treasurer on June 23, 1949, which offer and tender plaintiff "was reluctant to accept since November 10, 1951". It is prayed, therefore, that, among other things, plaintiff be required to accept the tender of payment on the balance of the loan by means of Backpay Certificate No. 139765; defendants be exempted from the payment of interest from and after the date the plaintiff

refused to honor the tender of payment; and, after such payment, the promissory note be cancelled. Because of several postponements "on the ground that the defendants would settle the case amicably with the plaintiff or on the grounds", the case was finally decided by the court only on February 21, 1958. Portions of the Court's decision as are pertinent to the present appeal are stated as follows: It must be stated at the outset that when Republic Act No. 304 was approved on June 18, 1948, the loan in question was not yet subsisting, the same having been contracted on November 24, 1948, and that Republic Act No. 897, approved June 20, 1953, amending Republic Act No. 304, allows the use of certificates of indebtedness for payment of obligations "subsisting at the time of the approval of this Act". It must be further noted that on June 16, 1956, Republic Act No. 1576 was approved amending the charter of plaintiff bank, and prohibiting the acceptance by the Bank of backpay certificates in payment of outstanding obligations contracted after the promulgation of the aforesaid Republic Act No. 304. From this, it is seen that had this case been tried and submitted for decision before the approval of the aforesaid Republic Act No. 1576, on June 16, 1956, the provisions of Republic Act No. 897 would unquestionably have been applied, as was done in the aforementioned Florentino case. But, as already stated above, the trial of this case did not start until September 16, 1957, and the case is only now submitted for decision, when the law in force on the matter is the aforesaid Republic Act No. 1576. In view hereof the question above-propounded is answered in the negative. It is needless to state that the allegation of defendants that defendant Juana S. Ruperto merely acted as guarantor is untenable. WHEREFORE, judgment is hereby rendered, sentencing defendants, jointly and severally, to pay plaintiff the sum of P2,250.00, with interest thereon at 8 per cent per annum from March 1, 1949, until fully paid, plus 10 per cent of the said sum as attorney's fees, and the costs. Not satisfied with the decision, defendants Ruperto appealed directly to this Court on points of law, insisting in effect that since they had tendered payment through back pay certificate on November 10, 1951 and on May 22, 1952, their right to have said back pay certificate applied to their debt could not be barred by R.A. 1576, enacted on June 16, 1956. We think this appeal is not meritorious. Since the debt of appellants was contracted on November 24, 1948, they could not validly seek to discharge it by application of their backpay certificate under Republic Act 304, passed on June 18, 1948, because that act, in terms, limited any such application to "obligations subsisting at the time of the approval of this Act" (Sec. 2). The appellants might have compelled the Bank to consent to the application when Republic Act No. 897 was approved on June 20, 1953. But the record is barren of any proof that the debtors demanded any application during the period when Republic Act No. 897 was in

effect, and before it was repealed by Act 1576, enacted June 16, 1956. The only demands alleged were made in 1951 and 1952, before Republic Act 897 was passed, and such tender was invalid under the reigning statute (R. A. 304) for the reasons previously expressed. After Republic Act 1576 was enacted in 1956, the Philippine National Bank was prohibited from accepting back pay certificates in discharge of pre-existing obligations. Even if the amended answer were construed as an offer of appellants to apply the backpay certificate to their debt, it came too late, since the amended answer was filed only on September 19, 1957, when the prohibitory law (Republic Act 1576) was already in force. Republic Act No. 1576 may not be condemned as being an ex post facto law, for this constitutional principle applies only in criminal proceedings or in instances where the law inflicts criminal punishment, but cannot be invoked to protect allegedly vested civil rights (Prov. of Camarines Sur vs. Director of Lands, 64 Phil., 600 see also Roman Catholic Bishop of Lipa vs. Municipality of Taal, 38 Phil., 367). Neither did the amending statute impair the obligation of contract between the parties herein, since the loan in question was contracted before the effectivity of Republic Act No. 897, which allowed payments to the bank by means of mere certificates of indebtedness. Wherefore, the judgment appealed from is affirmed. Costs against appellants Ruperto.
UNITED STATES v. ARCEO UNITED STATES of America, Plaintiff-Appellee, v. Edgar ARCEO, DefendantAppellant. 07-3296. No. Argued April 14, 2008. -- July 28, 2008 Before FLAUM, EVANS, and TINDER, Circuit Judges. Thomas D. Shakeshaft (argued), Office of the United States Attorney, Chicago, IL, for PlaintiffAppellee.Pablo DeCastro (argued), Rascia & DeCastro Chicago, IL for Defendant-Appellant. After a brief presentation of the facts, we turn to Arceo's arguments. 3C1.1 was not appropriate and that the district court did not adequately consider his cooperation with the government. He also challenges his sentence, arguing that the obstruction of justice adjustment under U.S.S.G. While he raises three issues, his main argument is that his right to a speedy trial was violated. The district court sentenced Arceo to 108 months' imprisonment followed by a term of supervised release. Arceo appeals. Arceo then pled guilty to the conspiracy charge, conditioning his plea on the right to appeal the denial of his motion to dismiss. His motion was denied. He moved to dismiss the indictment based on an alleged violation of his constitutional right to a speedy trial. More than six years later Arceo was arrested. 846. Edgar Arceo and a

co-defendant were charged with a conspiracy to possess with intent to distribute and to distribute a controlled substance in violation of 21 U.S.C. Background I. Arceo subsequently was transported to the Palatine, Illinois, Police Department for processing. The agents accompanied Arceo to a residence in Palatine, resulting in Salazar-Felix's arrest and eventual prosecution. He identified his source of supply of cocaine, Jose Salazar-Felix, and agreed to show the agents where he got the cocaine. He waived his Miranda rights and agreed to cooperate with law enforcement. Immediately after his arrest, Arceo was interviewed by agents. On August 11, 1999, Arceo was arrested in a parking lot in Aurora, Illinois, after delivering approximately 5 kilograms of cocaine to a confidential informant who was working with the Drug Enforcement Agency (DEA). Both at the time of his arrest in the parking lot and again while at the Palatine Police Department, Arceo was advised by the DEA Task Force Officer Lou Dominguez and other agents that they did not know when he would be charged, but that he would, in fact, be charged at a later time after his cooperation ended.1 Law enforcement and Arceo agreed to contact each other the next day. He identified his source of marijuana, Jesus Rodriguez-Medina, and arrangements were made for a meeting. Arceo was released from custody in order to continue his cooperation. They were As a result the agents went looking for Arceo at his residence. Other agents likewise tried to contact Arceo but did not succeed. On August 13, however, when Officer Dominguez called Arceo to arrange to meet, he was unable to reach him. Law enforcement and Arceo agreed to meet the next day. Arceo did meet with Rodriguez-Medina, who was arrested. He arranged for a marijuana transaction on August 12 with Rodriguez-Medina. For two days Arceo cooperated with law enforcement. After the usual law-enforcement checks in the Northern District of Illinois, Arceo still did not turn up. unable to find him and determined he had moved out. On July 27, 2000, Arceo's case was reassigned to the fugitive calendar. Between November 1999 and July 2000, there were a number of court proceedings involving Rodriguez-Medina but no docket entries reflect any activity as to Arceo. The docket does not show that an arrest warrant was issued for Arceo. An arraignment notice was entered the next day. Enter order. A minute order was entered that day, stating: The government will seek to have the defendant detained without bond as to Edgar Arceo, granted. On November 4, 1999, Arceo and Rodriguez-Medina were charged in a one-count indictment with a cocaine and marijuana conspiracy.

On December 20, that warrant, along with a second warrant issued December 19, were quashed for reasons not indicated in the record, and a third bench warrant was issued. None was issued until December 15, 2005, however. The agent who took over this case made two attempts in 2003 to have an arrest warrant issued for Arceo. No warrant was issued, so Officer Dominguez contacted the AUSA once again in 2001 and still later in 2002, before he stopped working as a DEA task officer. So on April 4, 2001, he contacted the Assistant United States Attorney (AUSA) assigned to the case in an effort to obtain an arrest warrant. In early 2001, Officer Dominguez discovered that no arrest warrant had been issued for Arceo. He was living there under the assumed identity of Rowdy Sepulvida, which he admitted he purchased from a friend. On April 4, 2006, Arceo was arrested in the Middle District of Pennsylvania. She explained that Arceo could not use his own name because of the problem he had in Chicago. She also said it was about that time that Arceo began using the Rowdy Sepulvida name. Maria said that they returned to the United States in 2002 and lived in Spring Grove, Pennsylvania, near her family. She testified that she believed her husband knew he was wanted in Chicago. According to Maria, it was her husband's idea to go to Mexico. She stated that in August 1999 she and her husband left Chicago for Mexico because of the problem in Chicago (without any details about the nature of the problem) and that they lived in Mexico for about three years. A detention hearing was held on April 5, 2006, in Pennsylvania, at which Arceo's wife of twelve years, Maria Arceo, testified. 2 The court indicated that the government may not have done as much as it could have but concluded that Arceo's attempt to avoid arrest and prosecution outweighed any negligence by the government. The court found that Arceo was aware he had been arrested and that criminal charges would be filed, yet chose to remove himself from the United States, later returning to another jurisdiction under an assumed name until his arrest. The court considered the transcript of Maria's testimony at the detention hearing and the testimony of former Task Force Officer Dominguez about Arceo's arrest, cooperation, and flight, and then denied the motion to dismiss. The district court held a hearing on the motion. Prior to trial Arceo moved to dismiss the indictment. The district court accepted his conditional plea and entered a judgment against him. His plea was conditioned on his right to appeal the denial of his motion to dismiss. 846. On April 2, 2007, Arceo pled guilty pursuant to a plea agreement to a conspiracy to possess with intent to distribute and to distribute a controlled substance, in violation of 21 U.S.C.

Arceo appeals. The court sentenced him to 108 months' imprisonment, at the bottom of the guidelines range. 3553(a) sentencing factors, specifically including Arceo's family history and circumstances, his lack of criminal history since 1999, and his cooperation with the government immediately following his arrest. 3C1.1 and acceptance of responsibility, and considered the 18 U.S.C. At sentencing the district court heard arguments relating to adjustments for obstruction of justice under U.S.S.G. Sixth Amendment Right to A Speedy Trial II.

See United States v. King, 338 F.3d 794, 797 (7th Cir.2003) (stating explicitly the standard of review for a Speedy Trial Act claim and applying the same standard to a Sixth Amendment speedy trial claim); see also United States v. Sutcliffe, 505 F.3d 944, 956 (9th Cir.2007) (stating explicitly the standard of review for a constitutional speedy trial claim); United States v. Brown, 498 F.3d 523, 530 (6th Cir.) (same), cert. denied, --- U.S. ----, 128 S.Ct. 674, 169 L.Ed.2d 528 (2007). We review a speedy trial claim de novo and review the district court's factual findings for clear error. The government responds that there was no error because Arceo's own conduct in evading law enforcement outweighs any government conduct contributing to the six-year and eight-month delay following his initial arrest. Arceo's first and principal argument is that the district court erred in denying his motion to dismiss because he was deprived of his Sixth Amendment right to a speedy trial. Doggett, 505 U.S. at 651, 112 S.Ct. 2686; see also White, 443 F.3d at 589. In doing so we assess whether delay before trial was uncommonly long, whether the government or the criminal defendant is more to blame for that delay, whether, in due course, the defendant asserted his right to a speedy trial, and whether he suffered prejudice as the delay's result. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In determining whether a defendant has been deprived of this speedy trial right, we consider and weigh the conduct of the government and the defendant. Doggett v. United States, 505 U.S. 647, 655, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992); United States v. White, 443 F.3d 582, 589 (7th Cir.2006). The Sixth Amendment right to a speedy trial is triggered by an arrest, indictment, or some other official accusation. This lengthy delay weighs in favor of Arceo. See Doggett, 505 U.S. at 652, 112 S.Ct. 2686. This extraordinary delay stretches well beyond the minimum needed to trigger a further speedy trial analysis. Here, more than six and one-half years passed from the time of Arceo's arrest in August 1999 to his plea in April 2007. United States v. Oriedo, 498 F.3d 593, 597 (7th Cir.2007); White, 443 F.3d at 589-90. A delay approaching one year is presumptively prejudicial. Barker, 407 U.S. at 530, 92 S.Ct. 2182; White, 443 F.3d at 589. Unless the delay

is presumptively prejudicial, we need not consider the other factors. The length of the delay acts as a triggering mechanism. The government argues that the principal reason for the delay was Arceo's intentional attempt to evade law enforcement. Arceo contends the delay is attributable to the government's negligence. A more neutral reason such as negligence should be weighted less heavily Barker, 407 U.S. at 531, 92 S.Ct. 2182. Different weights should be given to different reasons for delay: A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. The second factor is the reason for the delay, and it is this factor that is at the heart of Arceo's claim. This error seems to have contributed to over one year's worth of the delay as it was not until early 2001 that the fact that no arrest warrant had been issued was first discovered. Nothing in the record before us suggests that the delay caused by this error is attributable to the government. Then on July 27, 2000, this case was reassigned to the fugitive calendar, which implies that someone in the clerk's office and/or court staff believed there was an outstanding warrant for Arceo's arrest. From the best we can glean from the record, for several months no one noticed that an arrest warrant had not been issued. For one, when Arceo was indicted on November 4, 1999, a minute entry reflects that an order for Arceo's arrest and detention would be issued but, for some inexplicable reason-the government suggests a clerical error in the clerk's office-none was entered. Here there were a few reasons for the delay. See Barker, 407 U.S. at 531, 92 S.Ct. 2182. Thus, while we consider the reason for this part of the total delay, we do not weight it heavily against the government. This negligence contributed to the delay from April 2001 through December 15, 2005, approximately four years and eight months. However, Arceo has offered nothing to suggest that the government acted intentionally in causing this delay. The government's apparent inaction in response to repeated notification that no warrant had been issued seems negligent. That warrant was later quashed and ultimately a warrant issued on December 19, 2005. In total in the next few years, the DEA agents made five attempts to have an arrest warrant issued, without success until December 15, 2005. It was in early 2001 that Officer Dominguez discovered that no arrest warrant had been issued, so he contacted the AUSA assigned to the case in an effort to obtain an arrest warrant. Id. at 652-53, 112 S.Ct. 2686. The Court deferred to the lower court's finding that the delay was attributable to the government's negligence. Id. at 649-50, 112 S.Ct. 2686. He later was found pursuant to a mass credit check on several thousand persons subject to outstanding arrest warrants. Approximately two and one-half years after his indictment, Doggett returned to the United States, where he lived openly under his own name. The DEA attempted to catch

Doggett on his return to the United States, but these efforts ceased with time.

When law

enforcement attempted to arrest him, they learned that he had left the country a few days before. Doggett, 505 U.S. at 648, 112 S.Ct. 2686. Doggett was indicted with others for a drug conspiracy. Arceo likens his case to Doggett, in which the Supreme Court held that an eight and one-half year delay between the defendant's indictment and arrest violated his speedy trial rights. His actions support the conclusion that he was hiding from authorities in a calculated effort to avoid arrest and prosecution. He returned instead to another jurisdiction hundreds of miles away in Pennsylvania, where he lived under an assumed name. Arceo intentionally fled to Mexico for three years, and returned to the United States, but not to the Chicago area. But most of the blame for the delay lies with Arceo himself. Thus, the district court's finding in this regard is not erroneous. Both at the time of his arrest in the parking lot and again while at the police department, Arceo was advised by Officer Dominguez and other agents that he would be charged, though they did not know when the charges would be filed. This finding is well-supported by the record. While Arceo may have been unaware of the indictment against him until his April 2006 arrest, the district court found that when Arceo fled in August 1999, he was aware that criminal charges were forthcoming. Id. at 653-54, 112 S.Ct. 2686. Another significant difference is that Doggett had no knowledge of the charges against him until his arrest. While Arceo was arrested relatively quickly-three and one-half months-after the December 2005 arrest warrant was issued, this was due in part, no doubt, to good investigative work and perhaps some good luck. It cannot be said that law enforcement could have quickly and easily found him within minutes if only they had made an effort. Here, in contrast, Arceo was living under an assumed name: he was in hiding. Id. at 653, 112 S.Ct. 2686. Thus, the Court observed that for six years, the government investigators made no serious effort to find Doggett, but had they done so they could have found him within minutes. Id. at 649, 112 S.Ct. 2686. Two facts easily distinguish this case from Doggett: First, Doggett lived openly under his own name upon his return to the United States. Thus, the reason for the delay weighs in favor of the government. While the government may have acted negligently, Arceo acted intentionally and he therefore bears more blame for the delay. Arceo argues that he was using an assumed name simply for employment purposes, but the district court could reasonably reject this explanation. This testimony does not contradict the officer's testimony that he and others had discussed with Arceo several times on August 11 that he would be charged following his cooperation. Arceo makes much of testimony by Officer Dominguez about conversations with Arceo as to when he would be charged with a crime and whether the officer told Arceo on August 12 that he was going to be charged, to which Officer Dominguez responded no and I don't recall.

The fact that Arceo moved to dismiss the indictment for a speedy trial violation cuts in his favor; however, the fact that he knew that charges were certain but fled the jurisdiction to avoid prosecution cuts against him. Upon fleeing to Mexico, he was no longer cooperating, so he was on notice that charges would soon follow. But Arceo had been arrested and knew that he would be charged following his cooperation. And Arceo did move to dismiss the indictment, asserting his speedy trial rights. See id. at 653-54, 112 S.Ct. 2686 (stating that if defendant knew of his indictment for years before he was arrested, the third factor would be weighed heavily against him, but where he was not aware of the indictment prior to his arrest, he is not to be taxed for invoking his speedy trial right only after his arrest). Arceo was not informed that the indictment had been returned against him until his arrest. The third factor is somewhat neutral. Considering all of the circumstances including the absence of any particularized prejudice to Arceo, we conclude that the district court did not err in concluding that Arceo had not shown a deprivation of his constitutional speedy trial right. This conduct weighs heavily against him and outweighs the government's negligence. He acted intentionally and deliberately in attempting to avoid arrest and prosecution. Here, in sharp contrast, Arceo is at fault. Doggett, 505 U.S. at 657-58, 112 S.Ct. 2686. But there, Doggett could not be blamed for the delay; but for the government's egregious negligence, he would have been prosecuted six years earlier than he was. Again, Arceo likens his case to Doggett where the presumptive prejudice caused by the delay was sufficient to warrant relief for a speedy trial violation. Oriedo, 498 F.3d at 600. Yet this presumed prejudice is not sufficient to carry a speedy trial claim absent a strong showing on the other Barker factors. Id. at 655-56, 112 S.Ct. 2686; Oriedo, 498 F.3d at 600. Proof of particular prejudice is not necessary in every case; in some cases of excessive delay prejudice may be presumed. He argues that the extraordinary length of the delay suffices to establish prejudice. Arceo does not claim that he suffered any particularized prejudice caused by the delay. The fourth factor is prejudice to the defendant. Obstruction of Justice III.

Porter, 145 F.3d at 903 (quoting Draves, 103 F.3d at 1337). 3C1.1, cmt. n. 5(d); see Porter, 145 F.3d at 903, our cases draw a line between panicked, instinctive flight, which does not warrant an enhancement, and calculated evasion, which does. 3C1.1 states that avoiding or fleeing from arrest generally will not warrant an obstruction of justice enhancement, U.S.S.G. While the application note to Porter, 145 F.3d at 903 (quoting United States v. Draves, 103 F.3d 1328, 1338 (7th Cir.1997)). 3C1.1 is whether the defendant's conduct evidences a willful intent to obstruct justice. The pertinent question under United States v. King, 506 F.3d 532, 535 (7th Cir.2007) (per curiam); United States v. Porter, 145 F.3d 897, 902 (7th Cir.1998). 3C1.1. We review an obstruction of justice finding for clear error, giving deference to the district

court's application of the guidelines to the facts. Arceo's next challenge is to the district court's application of the obstruction of justice adjustment under U.S.S.G. Arceo knew he would be charged with a crime; yet he fled the jurisdiction, living in Mexico for several years and later returning to the United States, relocating to distant Pennsylvania under an assumed name. See King, 506 F.3d at 535 (concluding challenge to obstruction of justice finding would be frivolous where defendant while on pretrial release absconded for two months, obtained a driver's license using a stolen social security number, and used that false identity to buy a car); Porter, 145 F.3d at 903-04 (concluding obstruction of justice enhancement warranted where defendant, though not yet arrested, knew an indictment against him was imminent and nonetheless fled the jurisdiction and changed his identity). Arceo engaged in conduct that clearly supports the obstruction of justice finding. We agree that Arceo's conduct was a calculated effort to evade prosecution, and we find no error in the district court's obstruction of justice finding. But again he offers no evidence to substantiate this assertion. Arceo also suggests that he left Chicago because of fear of retaliation from the individuals who were arrested because of his cooperation. Arceo suggests that he had reason to believe he might not be charged because of his substantial assistance to law enforcement over two days, but he points to nothing in the record-nothing said by Officer Dominguez, another DEA agent, or any other law enforcement or government agent-to make such a belief reasonable. Nothing in the record suggests that these assertions were ever retracted. While Officer Dominguez did not tell Arceo specifically when he would be charged and did not discuss with him on August 12 whether he would be charged at all, it is undisputed that Arceo was told several times on August 11, both when he was arrested and while he was being processed at the police station, that he would in fact be charged. The record belies this claim. He claims that he only knew that he might be charged. Arceo argues that it is not clear that he fled the jurisdiction because he knew he would be charged with a crime. Substantial Cooperation IV. United States v. Harvey, 516 F.3d 553, 556 (7th Cir.2008). 3553(a) factors. But this presumption may be rebutted by a showing that the sentence is unreasonable when considered against the Id. (citing Rita v. United States, --- U.S. ----, 127 S.Ct. 2456, 2462-63, 168 L.Ed.2d 203 (2007)). A properly calculated within-guidelines sentence is presumed reasonable. United States v. Omole, 523 F.3d 691, 696 (7th Cir.2008) (citing Gall v. United States, --- U.S. ---, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007)). The third issue is whether the withinguidelines sentence was reasonable given Arceo's substantial cooperation with the government. We review a sentence for reasonableness under an abuse-of-discretion standard.

In his view, he should have received a below-guidelines sentence. He contends that his sentence was unreasonable because it did not adequately account for his substantial cooperation with law enforcement. Arceo's objection is more pointed. 3553(a) factors. The record also reflects the district court's consideration of the The record shows that he did. 3553(a) factors that might warrant a non-guidelines sentence. Nor does he dispute that he had an opportunity to identify the Arceo does not argue that the district court erred in calculating the applicable guidelines range. See United States v. Willis, 523 F.3d 762, 770 (7th Cir.2008) ( [T]he district court has substantial discretion in choosing a reasonable sentence.). This case exemplifies what sentencing discretion is all about. Neither fairness nor the requirement that a sentence be no greater than necessary compels the conclusion that a sentence at the very bottom of the guidelines range was unreasonable. The 108-month sentence adequately accounts for Arceo's cooperation along with the other facts and circumstances of the case. While the court could have relied on Arceo's cooperation as a basis for going below the guidelines range, it was not required to do so. We think this effective 14-month reduction adequately accounts for Arceo's cooperation. Thus, Arceo received 108 months instead of 122. The court sentenced him at the low end of the guidelines range (108-135 months) instead of the midrange-where the judge said he typically sentences defendants-based in large measure on Arceo's cooperation. The district court did account for Arceo's cooperation though.
3

Accordingly, we conclude that the district court did not abuse its discretion in imposing Arceo's sentence. Arceo has not shown that his sentence at the very bottom of the guidelines range was unreasonable. Conclusion V. For the foregoing reasons, Arceo's conviction and sentence are Affirmed. FOOTNOTES 1 For example, on direct examination Officer Dominguez stated that we told him [Arceo] that we didn't know when we would be charging him, but that we would charge him at a later time after his cooperation was done. The transcript of that hearing contradicts this claim. Arceo also claims that Officer Dominguez testified at the hearing on the motion to dismiss that Arceo was told that he may be charged. However, he did not present any testimony, not even his own, or any other evidence to support his assertion. Arceo argues that he was not told that he definitely would be indicted, but only that it was a possibility. .

2 We have no basis for concluding that the district court erred in disbelieving this testimony, which was more favorable to Arceo than Maria's initial testimony. On redirect, however, Maria claimed that she had no idea what the problem in Chicago was and that Arceo started using Sepulvida's name just so he could work. .

3 That determination does not appear to be the product of an unconstitutional motive. 5K1.1 motion. From the government's perspective, Arceo's deliberate flight made him unqualified for a His flight left him unable to follow through with his initial cooperation by testifying, if necessary, at Rodriguez-Medina's and Salazar-Felix's trials. Moreover, although Arceo initially cooperated with law enforcement, providing valuable information which led to the arrest and convictions of Rodriguez-Medina and Salazar-Felix, a short while later he fled the jurisdiction. 5K1.1 motion was based on an unconstitutional motive. Arceo does not argue that the government's decision not to make a United States v. Bosque, 312 F.3d 313, 318 (7th Cir.2002). [W]e may review the government's refusal to move for a departure based on substantial assistance only for unconstitutional motive. 5K1.1 motion and the government's explanation for not making the motion-office policy-was a whim. Arceo also suggests that his cooperation would justify a U.S.S.G. TINDER, Circuit Judge. .

Republic of the Philippines SUPREME COURT Manila EN BANC March 5, 1904 G.R. No. 1491 THE UNITED STATES, complainant-appellee, vs. LORENZO ARCEO ET AL., defendants-appellants. Crispin Oben for appellants. Office of the Solicitor-General Araneta for appellee. JOHNSON, J.: The defendants were charged with entering the house of one Alejo Tiongson on the night of February 20, 1903, armed with deadly weapons, against the will of the said Alejo Tiongson. The evidence shows that Alejo Tiongson lived in his house in company with his wife, Alejandra San Andres, and his wifes sister, Marcela San Andres. On the night of the 20th of

February, 1903, between 8 and 9 oclock at night, the accused, one of whom was armed with a gun and the other two each with bolo, entered the house of the said Alejo Tiongson without first obtaining the permission of any person. It appears from the proof that there was a light burning in the house at the time the accused entered, which was immediately put out by one of the accused; that Alejo and his wife had retired for the night; that Marcela was still sitting up sewing; that as soon as Marcela had discovered the accused in the house she awoke Alejo and his wife; that immediately after the accused were in the house, one of them wounded, by means of a bolo, Alejo Tiongson, the owner the house; that the accused to their own use a certain quantity of money; that the accused took and carried away out of the said house toward the fields the said Marcela San Andres and illtreated her. The evidence on the part of the defense tended to prove an alibi. The court below found that this testimony was not to be believed. We find no occasion, from the proof, to change this finding of fact. The court below found that the defendants were each guilty of the crime of entering the house of another, with violence and intimidation, which crime is punishable under subsection 2 of article 491 of the Penal Code, and sentenced each of them to be imprisoned for the term of three years six months and twenty-one days of prision correccional, and also imposed upon each a fine of 271 pesos and costs. In reaching this conclusion the court took into consideration the aggravating circumstance of nighttime and the extenuating circumstance provided for in article 11 of the Penal Code. Article 491 of the Penal Code provides that He who shall enter the residence (dwelling house) of another against the will of the tenant thereof shall be punished with the penalty of arresto mayor and a fine of from 325 to 3,259 pesetas. Subsection 2 provides that If the act shall be executed with violence or intimidation the penalty shall be prision correccional in the medium and maximum grade, and a fine of from 325 to 3,250 pesetas. Under the facts presented in this case, was the trial court justified in finding that the accused were guilty of the crime of entering the residence of another against his will and with violence or intimidation? We think that it was. We are not of the opinion that the statute relates simply to the method by which one may pass the threshold of the residence of another without his consent. We think it relates also to the conduct, immediately after entrance, of him who enters the house of another without his consent. He who being armed with deadly weapons enters the residence of another in the nighttime, without consent, and immediately commits acts of violence and intimidation, is guilty of entering the house of another with violence and intimidation and is punishable under subsection 2 of article 491 of the Penal Code. (See Viada, vol. 3, p. 303; Gazette of Spain of the 28th of March, 1883; Viada, vol. 6, p. 363; Gazette of Spain of the 19th of May, 1892, p. 165.)

The inviolability of the home is one of the most fundamental of all the individual rights declared and recognized in the political codes of civilized nations. No one can enter into the house of another without the consent of its owners or occupants. The privacy of the home the place of abode, the place where a man with his family may dwell in peace and enjoy the companionship of his wife and children unmolested by anyone, even the king, except in rare cases has always been regarded by civilized nations as one of the most sacred personal rights to which men are entitled. Both the common and the civil law guaranteed to man the right of absolute protection to the privacy of his home. The king was powerful; he was clothed with majesty; his will was the law, but, with few exceptions, the humblest citizen or subject might shut the door of his humble cottage in the face of the monarch and defend his intrusion into that privacy which was regarded as sacred as any of the kingly prerogatives. The poorest and most humble citizen or subject may, in his cottage, no matter how frail or humble it is, bid defiance to all the powers of the state; the wind, the storm and the sunshine alike may enter through its weather-beaten parts, but the king may not enter against its owners will; none of his forces dare to cross the threshold of even the humblest tenement without its owners consent. A mans house is his castle, has become a maxim among the civilized peoples of the earth. His protection therein has become a matter of constitutional protection in England, America, and Spain, as well as in other countries. However, under the police power of the state the authorities may compel entrance to dwelling houses against the will of the owners for sanitary purposes. The government has this right upon grounds of public policy. It has a right to protect the health and lives of all of its people. A man can not insist upon the privacy of his home when a question of the health and life of himself, his family, and that of the community is involved. This private right must be subject to the public welfare. It may be argued that one who enters the dwelling house of another is not liable unless he has been forbidden i.e., the phrase against the will of the owner means that there must have been an express prohibition to enter. In other words, if one enters the dwelling house of another without the knowledge of the owner he has not entered against his will. This construction is certainly not tenable, because entrance is forbidden generally under the spirit of the law unless permission to enter is expressly given. To allow this construction would destroy the very spirit of the law. Under the law no one has the right to enter the home of another without the others express consent. Therefore, to say that ones home is open for the entrance of all who are not expressly forbidden. This is not the rule. The statute must not be given that construction. No one can enter the dwelling house of another, in there Islands, without rendering himself liable under the law, unless he has the express consent of the owner and unless the one seeking entrance comes within some of the exceptions dictated by the law or by a sound public policy.

So jealously did the people of England regard this right to enjoy, unmolested, the privacy of their houses, that they might even take the life of the unlawful intruder, if it be nighttime. This was also the sentiment of the Romans expressed by Tully: Quid enim sanctius quid omni religione munitius, quam domus uniuscu jusque civium. It may be argued that the offense punishable under article 491 of the Penal Code corresponds to the crime of burglary at the common law. It is true that the offense of entering the house of another without the latters consent and the common-law crime of burglary are both offenses against the habitation of individuals. But these crimes are distinctively different. The punishment for burglary is to prevent the breaking and entering of a dwelling house of another in the nighttime for the purpose of committing a felony therein, while the object of article 491 is to prevent entrance into the dwelling house of another at any time, either by day or by night, for any purpose, against the will of its owner. In burglary there must have existed an intent to enter for the purpose of committing a felony, while under article 491 of the Penal Code entrance against the will, simply, of the owner is punishable. Under the provisions of the Penal Code entrance in the nighttime can only be regarded as an aggravation of the offense of entering. We are of the opinion, under all the facts in the case, that the extenuating circumstance provided for in article 11 of the Penal Code should not be considered in favor of these defendants. We find that the defendants are guilty of the crime of entering the house of another with violence and intimidation, without the consent of the owner, with the aggravating circumstance of nocturnity, and hereby impose the maximum degree of prision correccional, and the fine provided for in subsection of 2 article 491 of the Penal Code should be imposed. The sentence of the court below is therefore modified, and each of the said defendants is hereby sentenced to be imprisoned for the term of six years of prision correccional, and each to pay a fine of 271 pesos and the costs of this suit or in default thereof to suffer subsidiary imprisonment. Arellano, C. J., Torres, Willard and Mapa, JJ., concur. Cooper and McDonough, JJ., dissent.

Republic of the Philippines SUPREME COURT Manila EN BANC DECISION

July 26, 1918 G.R. No. L-12097 THE ROMAN CATHOLIC BISHOP OF LIPA, petitioner-appellant, vs. THE MUNICIPALITY OF TAAL, objector-appellant. THE MUNICIPALITY OF SANTO TOMAS and THE DIRECTOR OF LANDS, objectors-appellees. Hartigan & Welch for petitioner and appellant. , J.: This was a proceeding in the Court of First Instance of Batangas had in accordance with the provisions of the Land Registration Act. The court below refused to register two of the parties of land included in the petition, and from that part of the decision petitioner has appealed to this court. The municipality of Taal unsuccessfully opposed the registration of one of the parcels of land included in the petition, and has appealed from that part of the decision was the owner of the tract claimed by the municipality. The appeal of the petitioner relates to two tracts of land, one of which is described in the petition as parcel, 74, the registration of which was opposed by the municipality of Santo Tomas, and the other is described in the petition as parcel 71, lot 9, the registration of which was opposed by the Director of Forestry. Parcel 74. This is a tract of land containing 544 square meters, situated between the front wall of the atrium of the church and the public highway in the municipality of Santo Tomas, Province of Batangas. Concerning this tract of land the trial court, said: The church applies for the registration of a tract of land containing an area of 12,995 square meters, as described in the plan Exhibit A-2, to which the acting provincial fiscal and Attorney Modesto Castillo, in representation of the municipality opposed. The objector maintains that the land applied for, known as Plaza Malvar and situated in front of the church walls, is a public square under the control of the municipality of Santo Tomas. Counsel for the petitioner informed the court that he amended the application for registration so as to exclude from the land applied for that part thereof included within the walls of the church, inasmuch as it had already been registered formerly in accordance with a notice in the Official Gazette of April 10, 1912, p. 809, parcel 13, and the court agreed to such amendment and exclusion of the land already registered, included within the walls, the application being based on the land designated as Plaza Malvar; in other words, on the area included within numbers, 1, 7, 8, and 9, marked in the plan with letter (a). The petitioner presented three witnesses to support its application, and the opposing party, i.e., the municipality, presented also three witnesses who testified in its favor, and introduced as evidence p. 809 of the Official Gazette of April 10, 1912, referring to parcel 13, lot 1, of the application of land where the convent and the church with its courtyard are located.

After a careful study of the testimony of the witnesses of both parties, inasmuch as none of them has presented documents of ownership, we believe that considering the location of the land, which is said to be Plaza Malvar and which according to the municipality constitutes a square and according to the church is its own property the yard of the church being surrounded by walls, we cannot understand why if the tract of land in question really belonged to it, the church allowed it to remain outside its walls. It must be taken into account that it is prevalent custom, as seem in several towns, to have the yards of churches readily recognized by their surrounding fences of stone or other materials. In the case at bar, the church inclosed its yard with walls, and the land in litigation is outside the said walls, forming a square at the side of a public street. Furthermore, if the portion constituting the subject matter of the controversy known as Plaza Malvar really belonged to the church, we cannot understand why the church in applying for the inspection of its title to parcel 13, lot 1, p. 809 of the Official Gazette of April 10, 1912, had particularly described as its boundary on the northeast the Plaza Malvar which it now claims as its own. This amounts to an admission by the church itself that the parcel of land which it now claims was a public square which, according to law, comes under the control of the municipality. These facts and the very act of the church itself militate against its claim. The oral evidence of both parties contradict each other. The witnesses of the church state that formerly the parish priests exercised certain acts of ownership over this portion of the land, such as for example, prohibiting the tying of animals there to avoid filth in the place; while those of the municipality have shown that this parcel of land was formerly used as a market place during certain days of the week, and these facts have not been contradicted by the petitioner. The mere fact that a certain priest had really prohibited the tying of animals in this parcel of land does not, according to our opinion, constitute an act whereby the church can be considered as the owner of the land, for, considering that the land in question lies in front of a sacred place, as the church, it seems rather disrespectful that one should tie animals there, not to say anything of the fact that such practice would pollute the very place where the public which attends the religious ceremonies would pass. Hence, it is but natural that the parish priest should prohibit it, their authority at that time under our former Government being absolute in the towns where all obeyed them either out of respect or of fear, and for this reason, the said prohibitions and the acts testified to by the witnesses of the petitioner are insufficient to give the latter a title of ownership. On the other hand, the acts performed by the municipality and by the church itself, which in its application has admitted that the land in litigation belonged to the municipality or Plaza Malvar the parish priests of the towns of the Philippines took particular pains for here the yard or plazas of the churches, as in this case, for here the yard of the church was fenced with the walls constitute clear and sufficient evidence of ownership performed by the municipality. Wherefore, the court denies the petitioners application for registration, as amended, of that portion of the land comprised as amended, of that portion of the land comprised with numbers, 1, 7, 8 and 9 of the plan Exhibit A-2, that is, the land in litigation known as Plaza Malvar, which is outside of the walls and according to the evidence, a public square.

We have examined the evidence relative to this parcel of land, and are of the opinion that the court below did not err in refusing to decree its registration as the property of the petitioner. The so-called acts of dominion mentioned in the decision of the court, and which are invoked by petitioner in its brief as the sole ground upon which it relies to show its ownership of the land in dispute, are wholly insufficient for that purpose. The decision must be affirmed as regards the denial of the petition of applicant for the registration of parcel 74. Parcel 71. This is a tract of land in the municipality of Rosario, Province of Batangas. The petition of the applicant for the registration of this tract was opposed by Benedicto de Villa, with respect to 78,473 square meters, and by the Director of Forestry, with respect to 71 hectares which he contends are public forest land. The petitioner withdrew its application as regards the land claimed by Benedicto de Villa, and the trial court excluded from the decree of registration the 71 hectares claimed by the Director of Forestry as being public forest land. The decision of the trial court, regarding parcel 71, lot 9, is as follows: Respecting parcel 71, lot 9, of which the Bureau of Forestry and the municipality of Rosario were the objectors, both being represented by the acting provincial fiscal, the evidence has shown that the land applied for by the church should be considered as a forest, for there are no signs of cultivation therein, but on the other hand, there are trees of much importance and some trees of the first group. This piece of land is approximately 71 hectares, as shown in the plan Exhibit A-1, marked therein with the letter (a,) and Exhibit 2 of the objectors, and is situated in the southeastern part of the land applied for. Hence, there should be adjudged to the church that part of the whole area described in the plan Exhibit F-2 after deducting the 71 hectares claimed by the Bureau of Forestry and the area of 78,473 square meters marked as lot 9 in the name of Benedicto de Villa and should therefore be considered as the property of the latter all in accordance with the cession or dismissal prayed for by the petitioner during the trial. We have carefully examined the evidence adduced by the petitioner regarding that part of parcel 71, lot 9, excluded by the court below upon the opposition of the Bureau of Forestry, but are unable to find the remotest indication that it was the property of the petitioner. There is no suggestion that there has ever been a grant of this land from the Government, and there is no such proof of possession as to warrant us in decreeing title in accordance with section 54, paragraph 6, Act No. 926, as amended by section 1 of Act No. 1908 which reads as follows: All persons who by themselves or their predecessors in interest have been in open, continuous, exclusive, and notorious possession and occupation of agricultural public lands, as defined by said Act of Congress of July first, nineteen hundred and two, under a bona fide claim of ownership except as against the Government, for a period of ten years next preceding the twenty-sixth day of July, nineteen hundred and four, except when prevented by war or force majeure, shall be conclusively presumed to have performed all the conditions essential to a government grant and to have received the same, and shall be entitled to a certificate of title to such land under the provisions of this chapter.

The only proof of cultivation of the land in question is that at times part of it has been cultivated by the caigin system. The evidence does not show how long this has been done or what portion of the land was so cultivated. We take judicial notice of the fact that the caigin system of cultivation is essentially temporary in character. Apart from evidence regarding the occasional cultivation of the property by the caigin system, the only proof of possession is that cattle were occasionally pastured on part of the land, and that some trees were cut on it under the direction of persons ostensibly acting on behalf of the petitioner. Obviously, none of these acts constituted compliance with the requirements of the statute as above quoted. We are of the opinion that the decision of the lower court concerning this tract must be affirmed. Parcel 30, Lot No. 13. This parcel of land is described in the petition as follows: Parcel 30 (lot No. 13). Situated in the barrio of Balibago, municipality of Taal. Bounded on the NE. by the property of Matilde Martinez and Juan Cabrera; on the SE. by the property of Matilde Martinez and Juan Cabrera; on the SW. by the road; on the NW. by the properties of Andres Collantes and Hilariona Collantes. Area: 1,706 square meters. The registration of this parcel of land as the property of the petitioner was opposed by the municipality of Taal, but the opposition was overruled, and the registration of the land on behalf of the petitioner was decreed by the trial court. From this part of the decision, the municipality of Taal has appealed. The decision of the trial court regarding lot 13, parcel 30, is as follows: On parcel 30, lot 13, to the inscription whereof the municipality of Taal objects, there is a chapel of mixed materials. The preponderance of evidence has shown that the land came from one Maria Caibigan, alias Apong, who then gave it to the Roman Catholic Church, and no one has presented any claim against the church, according to witness Sebastian Lontok, 86 years of age, who was gobernadorcillo in 1862 and 1867. He stated that as gobernadorcillo he knew that the land was donated to the Catholic church and that the chapel had been administered by the parish priests of Taal; but these proofs refer only to the land occupied by the chapel, and there should be excluded from the plan Exhibit X-1 that which upon by the petitioner and the objector in the hearing of September 8, 1915, and the petitioner stated that the petitioner be considered as thus amended, excluding said part claimed, that is, the part where the stone walls stand, which should be considered as belonging to the municipality of Taal. It is contended in the brief filed on behalf of the municipality of Taal, as appellant, with regard to the registration of lot 13, parcel 30, that the evidence shows that the land in dispute is the property of the municipality, but, as there was no application by the municipality for the registration of this land, our inquiry must be limited to determining whether the evidence does or does not show that it is the property of the applicant. With respect to this tract of land, we hold that the clear preponderance of the evidence establishes the facts that the land in question was originally the property of Juan Collantes and his wife Maria Kaibigan; that in 1862 or 1863 they gave the land to the people of the town of San Luis, now a barrio

of Taal, so that a building might be erected upon it to serve as a meeting place or tribunal for the transaction of the public business of the town; that a building was constructed there for that purpose and so used for many years; that it was also used as a place of public worship; that about the year 1879 the first building erected on the land was destroyed by fire; that the people of the town, with the assistance of the parish priest, then built the present chapel or visita on the land in which the patron said of the town is housed; that the cost of maintaining the building is defrayed by the contributions of the people composing the congregation of the chapel, who elect a person to take charge of the chapel and act as custodian of the funds collected for its upkeep; that the Catholic parish priest of Taal goes to the chapel to say mass whenever he is called upon to do so by the congregation of the chapel and is paid for so doing out of the chapel funds. The petitioner in this case is the Roman Catholic Bishop of Lipa, a corporation sole. We are of the opinion that the title of this corporation to the land in question is not established by the showing that the Catholic priest of Taal has from time to time said mass in the chapel existing on that land. Even if we were to assume that the Catholic parish priest of Taal is the agent of the applicant corporation, there is nothing incompatible with the ownership by the congregation of the chapel and of the lot occupied by it, in the celebration of mass in the chapel by the priest of the parish. It is not necessary for us to determine whether the chapel and the lot in dispute are the property of the municipality of Taal, or of some entity or person. The only applicant for the registration of title is the Roman Catholic Bishop of Lipa described in the petition as a unipersonal corporation duly organized in accordance with the laws of the Philippine Islands. We are not justified in permitting the registration of the title to the land in question in favor of this applicant merely because the proof does not show that the land belongs to the opponent. One of the primary and fundamental purposes of the registration of land under the Torrens system is to secure to the owner an absolute, indefeasible title, free from all encumbrances and claims whatsoever, except those mentioned in the certificate of title, and, so far as it is possible, to make the certificate issued to the owner by the court, absolute proof of such title. In order, however, that the petitioner for registration of his land under the Torrens system shall be permitted to have the same registered and to have the benefit resulting from the certificate of title finally issued, the burden is upon him to show that he is the real and absolute owner, in fee simple, of the lands which he is attempting to have registered. The petitioner is not entitled to have his lands registered under the Torrens system simply because no one appears to oppose his title and to oppose the registration of his lands. In order that land may be registered under the Torrens system, the petitioner must show, even though there is no opposition, that he is the absolute owner, in fee simple, of the same. Courts are not justified in registering property under the Torrens system in the name of the petitioner simply because there is no opposition offered. In view of the fact that the entire revenues of the state under certain conditions are made subject to the payment of damages for errors in the wrongful registration of property, courts should insist upon unquestionable proof of absolute ownership in fee simple on the part of the petitioner. The petitioner may be the owner, as a matter of fact, of the land and yet be unable to furnish satisfactory proof of the kind and yet be unable to furnish satisfactory proof of the

kind required for registration under the Torrens system at the time of the presentation of his petition for registration. The denial of the petition for registration is not conclusive proof that the petitioner is not the owner. The denial of a petition for registration simply indicates that he has not furnished that kind of proof showing an absolute title in fee simple which is required under the Torrens system. It is the duty of the courts, even in the absence of any opposition, to require the petitioner to show, by a preponderance of the evidence and by positive and absolute proof, so far as it is possible, that he is the owner in fee simple of the lands which he is attempting to have registered. (Maloles vs. Director of Lands, 25 Phil. Rep., 548.) As the evidence does not show that lot 13 of parcel 30 is the property of the applicant corporation, the decision of the lower court concerning this parcel must be reversed. Costs. The petition for the registration of the property described therein was filed before the passage of Act No. 2556, and the costs demandable under the law then in force were paid by the petitioner. Act No. 2556 provides for the payment of higher costs in land registration proceedings. By the terms of the Act its provisions are made applicable to land registration proceedings pending at the time it took effect. The lower court made an order requiring the petitioner to pay the difference between the costs paid under the former law, in force when the proceeding was commenced, and the amount due as costs under Act No. 2556. Petitioner appeals from this order and contends that the application of Act No. 2556 to pending proceedings for the registration of title is void as being ex post facto, as impairing the obligation of a contract, and as depriving petitioner of property without due process of law. None of these contentions can be upheld. The Act in question is not an ex post facto law, as it is not penal in its nature. It has long been settled that the phrase ex post facto laws relate to penal and criminal laws which punish a party for acts antecedently down which were not punishable at all, or not punishable to the extent or in the manner prescribed. In short ex post facto laws relate to penal and criminal proceedings, which impose punishment or forfeitures, and not to civil proceedings, which affect private rights retrospectively. (Ency. of U.S. Supreme Court Reports, vol. 4, 517, and cases cited in Note 29.) There was no contract between the petitioner and the Government that no change would be made in the law regarding the costs to be charged in land registration proceedings. Petitioners property is not being taken without due process of law. The commencement and continuance of the proceeding for the registration of its lands is a purely voluntary act on petitioners part, and if it had deemed the costs demandable under Act No. 2556 as being higher than it was warranted in paying for the benefit to be derived from the registration of its title, it might have been withdrawn its application. There is no vested right to the maintenance of any given tariff of court costs. If the Legislature were to repeal in toto the Land Registration Act and thereby make it impossible for petitioner and other similar applicants to obtain a registered title to land, no vested right would be impaired. It the Legislature may validly repeal the statute in toto clearly it has power to amend it in any particular it may deem essential.

The judgment of the lower court is affirmed with regard to parcel 71, lot 9, and as to parcel 74, and is reversed as regards lot 13 of parcel 30, as to which petition will be dismissed. The order of April 1, 1916, regarding costs is affirmed. No costs will be allowed on this appeal. So ordered. Torres, Johnson, Carson, Street and Malcolm, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC DECISION December 19, 1908 G.R. No. 4630 THE UNITED STATES, plaintiff-appellee, vs. TORCUATA GOMEZ and RAMON NARCISO CORONEL, defendants-appellants. Ramon Narciso Coronel, on his own behalf. Perfecto Salas, for appellant Torcuata Gomez. Attorney-General Villamor, for appellee. TORRES, J.: The complaint upon which these proceedings were brought is as follows: The undersigned fiscal charges Torcuata Gomez and Ramon Narciso Coronel with the crime of adultery committed as follows: That on or about the beginning of the year 1906, until the 30th of September, 1907, in the municipality of Oroquieta, Province of Misamis, P.I., the said Torcuata Gomez, maliciously, and feloniously, and being then lawfully married to Fabiano Martinez Lao, without the said marriage having been in any manner dissolved, attempted to lie and did lie with Ramon Narciso Coronel; knowing that the said Torcuata Gomez is a married woman whose marriage is not dissolved, he lay with her, and afterwards lived in marital relations with her in the same house in the said municipality of Oroquieta, with public scandal, all contrary to law. Jimenez, Province of Misamis, this the 18th day of January, 1908. (Signed) Jose de la Rama, provincial fiscal of Surigao, Misamis, and Agusan. The case was proceeded with through all its stages against both the accused; the husband as the aggrieved party did not file any charge, although he testified as a witness in this case. On the 25th of January, 1908, the trial judge, considering that the crime of adultery had been proven and that the guilt of the accused Torcuata Gomez and Ramon Narciso Coronel had been established, sentenced each one of them to the penalty of three years, six months, and twenty-one days of prision correccional, to the accessory penalties, and costs. From said judgment the accused have appealed.

In this case it has been fully proven that Ramon Narciso Coronel, by reason of his living in the house of Torcuata Gomez, a woman lawfully married to Fabiano Martinez, contracted with her illicit and hence adulterous relations which lasted for a period of seventeen months, from April, 1906, to September, 1907. There being no necessity of considering the allegations of the defense, this decision will be limited to deciding whether, in view of the fact that no complaint was brought by the aggrieved husband, Fabiano Martinez Lao, it would be lawful to sustain the proceedings and the condemnatory judgment appealed from, merely by virtue of the complaint presented by the provincial fiscal of Misamis. Proceedings instituted for crimes defined and punished by the Penal Code in force are regulated by the law of criminal procedure, that is, General Orders, No. 58, and that law recognizes as an exception the right of the offended party in crimes of a private nature, in respect to which the provisions of the Penal Code were still in force; in the application of said provisions, as regards the prosecution, those of the former law of procedure have continued to be observed, since they are in perfect harmony with the code now in force, and the public prosecutor is under no obligation to prosecute, among other crimes of a private nature, that of adultery, which is defined in article 433 of the Penal Code, since the offended husband alone is entitled to bring such action before the courts. Article 434 of the said code reads: No penalty shall be imposed for the crime of adultery except upon the complaint of the aggrieved husband. The latter can enter a complaint against both guilty parties, if alive, and never, if he has consented to the adultery or pardoned either of the culprits. So that, under provisions of the foregoing article, no complaint or charge having been presented by the husband, Fabiano Martinez, against the parties accused of said crime, no valid judgment could entered nor could any proceedings be brought against them, in view of the fact that proceedings are instituted in order to prosecute for a crime and to punish the guilty; the absence of a complaint or charge by the aggrieved husband can not be substituted by the complaint filed by the provincial fiscal of Misamis as such a substitution is not authorized by law. Such has always been the constant and genuine interpretation of the provision of the criminal law in relation to this crime, according to the doctrine laid down by the supreme court of Spain when applying a similar article of the Penal Code of that country, as appears in its decisions of January 17, 1874, and January 16, 1875. The crime in question was committed prior to the enforcement of Act No. 1773 of the Philippine Commission, which went into effect on the 11th of October, 1907. Although the complaint was filed by the fiscal on the 18th of January, 1908, it is not lawful to attribute retroactive effects to the said Act of the Philippine Commission for the reason that, even though it refers to a matter of procedure, it does not any clause making it retroactive in its

effects, and furthermore, the provisions thereof if applied now are prejudicial to the accused. Hence, in view of the terms of the aforesaid article 433 of the Penal Code, the proceedings instituted by virtue of the complaint filed by the fiscal can not be sustained, as they were brought without the necessary previous complaint of the aggrieved husband, and in violation of the criminal law; therefore, the said proceedings, together with the judgment rendered therein, and decidedly null and void. On these grounds all the proceedings in this case, together with the judgment appealed from, are hereby held to be null and void; the bond executed by the accused is set aside with costs de oficio. So ordered. Arellano, C.J., Mapa, Johnson, Carson, Willard, and Tracey, JJ., concur.

Republic of the Philippines SUPREME COURT Manila EN BANC DECISION November 20, 1917 G.R. No. L-18619 GEORGE H. GANAWAY, petitioner, vs. J. W. QUILLEN, Warden of Bilibid Prison, respondent. M. V. del Rosario for appellants. No appearance for appellee. Johnson, J.: The facts in this case have been stipulated by the respective parties. The stipulation is as follows: 1. That the plaintiff was appointed election inspector of the precinct of Daraga, municipality of Albay, on the 13th day of September, 1909, and did qualify and act as such election inspector in the general elections held in this province on November 2, 1909. 2. That on February 26, 1910, the plaintiff presented to the municipal council of Albay his written resignation from the office of election inspector. 3. That the municipality council of Albay, at its session of March 7, 1910, accepted the resignation tendered by the plaintiff.

4. That on March 21, 1910, at the session held by the municipal council of Albay, the municipal president of the said municipality appointed the plaintiff lieutenant of police of Albay, which appointment was unanimously approved by the council; and on the following day, March 22, 1910, the municipal president issued to the said plaintiff the proper certificate of appointment. 5. That on March 22, 1910, the plaintiff legally qualified for, and took possession of, the office of lieutenant of police of the municipality of Albay. 6. That on March 26, 1910, the municipal president of Albay, acting in pursuance of an order received from the provincial governor, suspended the plaintiffs appointment and summoned the latter to appear before the provincial board of Albay on the 29th of March, 1910, for the purpose of deciding upon the legality of his appointment as such lieutenant of police, in view of his having discharged the duties of election inspector in the last election. 7. That on March 29, 1910, the plaintiff, through his attorney, appeared before the provincial board and demanded that it abstain from passing any resolution with respect to the legality of the said appointment, alleging that the said board lack both the power and the jurisdiction so to do; but that the board did, notwithstanding, disapprove the resolution passed by the municipal council of Albay on March 21, 1910. 8. That on March 26, 1910, the plaintiff ceased to discharge the duties of the office of lieutenant of police of Albay, and, by the aforecited resolution of the provincial board, is prevented from holding the said office in the future. 9. That the municipal council of Albay resolved not to appeal, and did not appeal, administratively to the Honorable GovernorGeneral from the resolution of the provincial board, and the said council does not permit nor will it permit the plaintiff to occupy or again to take possession of the said office. 10. That the municipal board is disposed to carry out its resolution disapproving the appointment of the plaintiff, and to prevent the latter from continuing in the discharge of the duties of the office of lieutenant of police. 11. Both parties agree, furthermore, that the court admit and consider the following documents, attached hereto and marked as Exhibits A, B, C, D, E, F, G, H, and I. Section 15 of the Election Law (Act No. 1582) contains the provision for the appointment of inspectors of elections, among other things. Said section also provides that: Said inspectors shall be ineligible to be elected or appointed to any other office during their term of office. Said section further provides that the inspectors of elections . . . shall hold office for two years, from the date of their appointment. From the stipulated facts above quoted, it will be seen that the plaintiff was appointed as election inspector on the 13th of September, 1909, and resigned on the 26th of February, 1910, and was appointed by the municipal president as teniente de policia on the 21st of March, 1910, which appointment was approved by the municipal council on the 22nd of March, 1910. It will thus be seen that the plaintiff accepted an appointive position within the period of two years from the date of his appointment as election inspector. The provincial board, upon receiving notice of the appointment as teniente de policia, immediately ordered the municipal council to revoke the appointment, relying upon the provisions of section 15 above referred to. Immediately upon the revocation of said

appointment, the plaintiff presented a petition for a writ of prohibition against the provincial board as well as the municipal council, to prevent them from carrying into effect the said revocation. The lower court issued said writ. From that order the defendants appealed to this court. Several questions are presented by the brief filed by the Attorney-General. The plaintiff presented no brief. In our opinion the only question which it is necessary to discuss in the present case is whether or not that provision of section 15 which provides that said inspectors shall be ineligible to be elected or appointed to any other office during their term of office, renders ineligible an inspector of elections from accepting an appointive office after the acceptance of his resignation and within his term of office (two years). Of course what is said here with reference to the acceptance of an appointive office will also be applicable to the acceptance of an elective office. The lower court reached the conclusion that said provision did not apply after the resignation of the inspector, and cited in support of that conclusion the case of Barnum vs. Gilman (27 Minn., 466, decided March 29, 1881). The constitution of the State of Minnesota, among other things, provides that ? No senator or representative (state) shall, during the time for which he is elected, hold any office under the authority of the United States, or the State of Minnesota, except that of postmaster. In that case (Barnum vs. Gilman) the respondent was elected as lieutenant-governor of the State of Minnesota in the year 1879, for the term commencing January 1, 1880; at the time of his nomination he was holding the office of representative in the legislature, under an election for the term extending to the 1st of January, 1881; but prior to the said state election he resigned his office as representative and his resignation was duly accepted. Mr. Justice Cornell, in writing the opinion in that case for the majority of the court, said: When he ceases to be such (senator or representative) whether by the lapse of time, resignation or otherwise, the disability terminates. The clause, during the time for which he is elected can not properly be construed as enlarging the scope of the prohibition so as to include persons not in fact members of the legislature. This case (Barnum vs. Gilman) has been cited in support of the proposition that after the resignation of officers included in the provisions of the constitution, and the resignation is accepted, such persons are no longer bound by such provisions. We find, however, that this same question came before the supreme court of the State of Minnesota again in the case of State vs. Sutton (63 Minn., 147, decided December 12, 1895). The supreme court of Minnesota, referring to the case of Barnum vs. Gilman, said: We must regard what was there said in reference to the constitutional provision here under consideration as mere obiter.

In the case of State vs. Sutton, supra, the supreme court (of Minnesota) held that under this constitutional provision, the disability of a member of the legislature to hold office does not cease until the expiration of the full period of time for which he was elected. Even granting that the decision in the case of Barnum vs. Gilman decided that a senator or representative might be relieved from the operation of the constitutional provision by resigning, the same is expressly overruled in the case of State vs. Sutton, supra. In the latter case Mr. Sutton was elected to the office of representative on the 16th of November, 1894, for the term commencing on the first Monday of January, 1895, and ending on the first Monday of January, 1897. Pursuant to his election he duly qualified and entered upon the discharge of his duties as such member and served until the 2nd of May, 1895. On the 4th of May, 1895, Mr. Sutton was appointed to the public office of inspector of boilers for the fourth congressional district, and qualified and entered upon the performance of the duties of that office. Proceedings were commenced to oust him of his office and the court in deciding the case said: We are of the opinion that the respondent, in holding the office of inspector of boilers, as charged in the writ of quo warranto, comes within the prohibition of the constitution (art. 4, sec. 9), and it is therefore adjudged that said respondent, John B. Sutton, is guilty of unlawfully holding and exercising the office of inspector of boilers for the fourth congressional district in this state. And it is further ordered and adjudged that said John B. Sutton be ousted and excluded from said office of inspector of boilers and that judgment be entered accordingly. The question which we are discussing here came before the supreme court of the State of Michigan in the case of Ellis vs. Lennon (86 Mich., 468, decided June term, 1891). In Michigan the general law for the incorporation of cities contains the following provision: No alderman shall be elected or appointed to any other office in the city during the term for which he was elected as alderman, nor appointed to any other office in the city within one year thereafter. The constitution of the State of Michigan also provides the following: No person elected a member of the legislature shall receive any civil appointment within this State, or to the Senate of the United States, from the governor, the governor and senate, from the legislature, or any other State authority, during the term for which he is elected. In the said case of Ellis vs. Lennon supra, a member of the city council resigned his position and was appointed chief of police. Quo warranto proceedings were commenced against him. The supreme court decided that: An Alderman, . . ., can not, by resigning his office prior to the expiration of the term for which he was elected, render himself eligible to receive the appointment of chief of police. In the case of Waldo vs. Wallace (12 Ind., 569) it appears that Wallace was mayor of the city of Indianapolis and that during the continuance of his term of office as such he resigned, became a

candidate and received the highest number of votes for the office of sheriff of his country. His right to hold the office of sheriff was presented to the courts. The court held that he could not exercise the duties of the office of sheriff, for the reason that his election to the latter office occurred during the continuance of his term as mayor. See also Gulick vs. New, 14 Ind., 93.) Provisions similar to that contained in said section 15 of Act No. 1582 are found in the constitutions of many of the States of the United States. It is common provision of municipal charters. The purpose of such provision is to guard against trafficking in office and the further purpose is to remove from the incumbent of the office any inducement for causing a vacancy. (Ellis vs. Lennon, 86 Mich., 468; Waldo vs. Wallace, 12 Ind., 569; Shellby vs. Alcorn, 36 Miss., 273; Sublett vs. Bedwell, 47 Miss., 266; Smith vs. Moore, 90 Ind., 294; Story on Constitutional Law, sections 867-969.) Another purpose for the existence of such constitutional or statutory provisions is to prevent officers from using their official positions in the creation of offices for themselves, or for the appointment of themselves to other more lucrative positions. The law of course recognizes the right of an official to resign under certain circumstances, but the policy of the law as announced in said section 15 of Act No. 1582 is to take away from public officials all inducements to the vacation of their office. The provision of said section 15 seems to be clear. It says that said inspectors shall be ineligible to be elected or appointed during their term of office. The time included within the phrase during their term of office is easy to compute. Laws should be given their natural interpretation. Had the legislature intended that said inspectors should be ineligible to be elected or appointed simply during the time which they held the office of an inspector, the language of the statute would have been different. The statute naturally would have read: During the time they continue to hold the office of inspector. The statute, however, is broader. It used the phrase during their term of office.1 In reading said section it will be noted that inspectors of elections are appointed for a term of two years. Statutes should be construed so as to give every word and phrase used its common and approved meaning. If it had been the intention of the Legislature to limit the prohibition to the term of actual service, or simply to make inspectors of elections ineligible to other offices during the term of actual service, the phrase during their term of office would have been substituted by the phrase during the term of actual service. For the foregoing reasons we are fully persuaded that inspectors of elections are ineligible to be elected or appointed to any other office during their term of office, and this prohibition is not limited to their term of actual service. The judgment of the lower court is therefore hereby reversed and the defendants are absolved from any liability under the petition presented in the lower court for the writ of prohibition, with costs against the plaintiff. Arellano, C.J., Torres, Mapa, Carson, Moreland and Trent, JJ., concur. echo

LOZANO VS. MARTINEZ Case Digest

FLORENTINA A. LOZANO VS. MARTINEZ G.R. NO. L-63419 146 SCRA 323 DECEMBER 18, 1986 FACTS: The constitutionality of Batas Pambansa Bilang 22 (BP 22 for short), popularly known as the Bouncing Check Law, which was approved on April 3, 1979, is the sole issue presented by these petitions for decision. The question is definitely one of first impression in our jurisdiction. These petitions arose from cases involving prosecution of offenses under the statute. The defendants in those cases moved seasonably to quash the information on the ground that the acts charged did not constitute an offense, the statute being unconstitutional. ISSUE: Whether or not the bouncing check law is unconstitutional? HELD: BP 22 is aimed at putting a stop to or curbing the practice of issuing checks that are worthless, i.e. checks that end up being rejected or dishonored for payment. The practice, as discussed later, is proscribed by the state because of the injury it causes to the public interests. Those who question the constitutionality of BP 22 insist that: (1) it offends the constitutional provision forbidding imprisonment for debt; (2) it impairs freedom of contract; (3) it contravenes the equal protection clause; and (4) it unduly delegates legislative and executive powers; Has BP 22 transgressed the constitutional inhibition against imprisonment for debt? To answer the question, it is necessary to examine what the statute prohibits and punishes as an offense. Is it the failure of the maker of the check to pay a debt? Or is it the making and issuance of a worthless check in payment of a debt? What is the gravamen of the offense? This question lies at the heart of the issue before us. The gravamen of the offense punished by BP 22 is the act of making and issuing a worthless check or a check that is dishonored upon its presentation for payment. It is not the non-payment of an obligation which the law punishes. The law is not intended or designed to coerce a debtor to pay his debt. The thrust of the law is to prohibit, under pain of penal sanctions, the making of worthless checks and putting them in circulation. Because of its deleterious effects on the public interest, the practice is proscribed by the law. The law punishes the act not as an offense against property, but an offense against public order. The police power of the state has been described as "the most essential, insistent and illimitable (least limitable) of powers" which enables it to prohibit all things hurtful to the comfort, safety and welfare of society. It is a power not emanating from or conferred by the constitution, but inherent in the state, plenary, "suitably vague and far from precisely defined, rooted in the conception that man in organizing the state and imposing upon the government limitations to safeguard constitutional rights did not intend thereby to enable individual citizens or group of citizens to obstruct unreasonably the enactment of such salutary measures to ensure communal peace, safety, good order and welfare." The enactment of BP 22 is a declaration by the legislature that, as a matter of public policy, the making and issuance of a worthless check is deemed public nuisance to be abated by the imposition of penal sanctions. It is not for us to question the wisdom or impolicy of the statute. It is sufficient that a reasonable nexus exists between means and end. Considering the factual and legal antecedents that led to the

adoption of the statute, it is not difficult to understand the public concern which prompted its enactment. It had been reported that the approximate value of bouncing checks per day was close to 200 million pesos, and thereafter when overdrafts were banned by the Central Bank, it averaged between 50 million to 80 million pesos a day. By definition, a check is a bill of exchange drawn on a bank and payable on demand. It is a written order on a bank, purporting to be drawn against a deposit of funds for the payment of all events, of a sum of money to a certain person therein named or to his order or to cash and payable on demand. Unlike a promissory note, a check is not a mere undertaking to pay an amount of money. It is an order addressed to a bank and partakes of a representation that the drawer has funds on deposit against which the check is drawn, sufficient to ensure payment upon its presentation to the bank. There is therefore an element of certainty or assurance that the instrument will be paid upon presentation. For this reason, checks have become widely accepted as a medium of payment in trade and commerce. Although not legal tender, checks have come to be perceived as convenient substitutes for currency in commercial and financial transactions. The basis or foundation of such perception is confidence. If such confidence is shakes the usefulness of checks as currency substitutes would be greatly diminished or may become nit. Any practice therefore tending to destroy that confidence should be deterred for the proliferation of worthless checks can only create havoc in trade circles and the banking community. The effects of the issuance of a worthless check transcends the private interests of the parties directly involved in the transaction and touches the interests of the community at large. The mischief it creates is not only a wrong to the payee or holder, but also an injury to the public. The harmful practice of putting valueless commercial papers in circulation, multiplied a thousand fold, can very well pollute the channels of trade and commerce, injure the banking system and eventually hurt the welfare of society and the public interest. As aptly stated: The 'check flasher' does a great deal more than contract a debt; he shakes the pillars of business; and to my mind, it is a mistaken charity of judgment to place him in the same category with the honest man who is unable to pay his debts, and for whom the constitutional inhibition against' imprisonment for debt, except in cases of fraud was intended as a shield and not a sword. In sum, we find the enactment of BP 22 a valid exercise of the police power and is not repugnant to the constitutional inhibition against imprisonment for debt. As stated elsewhere, police power is a dynamic force that enables the state to meet the exigencies of changing times. There are occasions when the police power of the state may even override a constitutional guaranty. For example, there have been cases wherein we held that the constitutional provision on non-impairment of contracts must yield to the police power of the state. Whether the police power may override the constitutional inhibition against imprisonment for debt is an issue we do not have to address. This bridge has not been reached, so there is no occasion to cross it. We hold that BP 22 does not conflict with the constitutional inhibition against imprisonment for debt. We find no valid ground to sustain the contention that BP 22 impairs freedom of contract. The freedom of contract which is constitutionally protected is freedom to enter into "lawful" contracts. Contracts which contravene public policy are not lawful. Besides, we must bear in mind that checks cannot be categorized as mere contracts. It is a commercial instrument which, in this modem day and age, has become a convenient substitute for money; it forms part of the banking system and therefore not entirely free from the regulatory power of the state. Neither do we find substance in the claim that the statute in question denies equal protection of the laws or is discriminatory, since it penalizes the drawer of the check, but not the payee. It is

contended that the payee is just as responsible for the crime as the drawer of the check, since without the indispensable participation of the payee by his acceptance of the check there would be no crime. This argument is tantamount to saying that, to give equal protection, the law should punish both the swindler and the swindled. The petitioners' posture ignores the well-accepted meaning of the clause "equal protection of the laws." The clause does not preclude classification of individuals, who may be accorded different treatment under the law as long as the classification is no unreasonable or arbitrary. It is also suggested that BP 22 constitutes undue or improper delegation of legislative powers, on the theory that the offense is not completed by the sole act of the maker or drawer but is made to depend on the will of the payee. If the payee does not present the check to the bank for payment but instead keeps it, there would be no crime. The logic of the argument stretches to absurdity the meaning of "delegation of legislative power." What cannot be delegated is the power to legislate, or the power to make laws which means, as applied to the present case, the power to define the offense sought to be punished and to prescribe the penalty. By no stretch of logic or imagination can it be said that the power to define the crime and prescribe the penalty therefor has been in any manner delegated to the payee. Neither is there any provision in the statute that can be construed, no matter how remotely, as undue delegation of executive power. The suggestion that the statute unlawfully delegates its enforcement to the offended party is far fetched.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-4221 MARCELO vs. GEN. MARIANO CASTAEDA, and COLONEL EULOGIO BALAO, respondents-appellees. August 30, 1952 D. MONTENEGRO, petitioner-appellant,

Felixberto

M.

Serrano

and

Honorio

Ilagan

for

appellant.

Office of the Solicitor General Pompeyo Diaz and Solicitor Felix V. Makasiar for appellees.

DECISION BENGZON, J.: The purpose of this appeal from the Court of First Instance of Quezon City is to test the validity of Proclamation No. 210 suspending the privilege of the writ of habeas corpus. A few months ago the same proclamation came up for discussion in connection with the request for bail of some prisoners charged with rebellion.1 The divided opinion of this Court did not squarely pass on the validity of the proclamation; but, assuming it was obligatory, both sides proceeds to determine its effect upon the right of which prisoners to go on bail.

This decision will now consider the points debated regarding the aforesaid residential order. The facts are few and simple: About five oclock in the morning of October 18, 1950, Maximino Montenegro was arrested with others at the Samanillo Bldg. Manila, by agents of the Military Intelligence Service of the Armed Forces of the Philippines, for complicity with a communistic organization in the commission of acts of rebellion, insurrection or sedition. So far as the recorddiscloses, he is still under arrest in the custody by respondents. On October 22, 1950, The President issued Proclamation No. 210 suspending the privilege of the writ of habeas

corpus. On October 21, 1950, Maximinos father, the petitioner, submitted thisapplication for a
writ of habeas corpus seeking the release of his son. Opposing the writ, respondents admitted having the body of Maximino, but questioned judicial authority to go further in the matter, invoking the above-mentioned proclamation. Petitioner replied that such proclamation was void, and that, anyway, it did not apply to his son, who had been arrested before its promulgation. Heeding the suspension order, the court of first instance denied the release prayed for. Hence this appeal, founded mainly on the petitioners propositions:. (a) The proclamation is unconstitutional because it partakes of bill of attainder, or an ex post

facto law; and unlawfully includes sedition which under the Constitution is not a ground for
suspension; (b) Supposing the proclamation is valid, no prima facie. (c) There is no state of invasion, insurrection or rebellion, or imminent danger thereof, the only situations permitting discontinuance of the writ of habeas corpus; showing was made that the petitioners son was included within the terms thereof. Proclamation No. 210 reads partly as follows: WHEREAS, lawless elements of the country have committed overt acts of sedition, insurrection and rebellion for the purpose of overthrowing the duly constituted authorities and in pursuance thereof, have created a state of lawlessness and disorder affecting public safety and the security of the state; WHEREAS, these acts of sedition, insurrection, and rebellion consisting of armed raids, sorties, and ambushes and the wanton acts of murder, rape, spoilage, looting, arson, planned destruction of public and private buildings, and attacks against police and constabulary detachments, as well as against civilian lives and properties as reported by the Commanding General of the Armed Forces, have seriously endangered and still continue to endanger the public safety;

WHEREAS, these acts of sedition, insurrection and rebellion have been perpetrated by various groups well organized for concerted actions and well armed with machine guns, rifles, pistols and other automatic weapons, by reason whereof there is actual danger of rebellion which may extend throughout the country; Whereas, 100 leading members of these lawless elements have been apprehended and the presently under detentions, and strong and convincing evidence has been found in their possession to show that they are engaged in the rebellious, seditious and otherwise subversive acts as above set forth; and Whereas, public safety requires that immediate and effective action be taken to insure the peace and security of the population and to maintain the authority of the government; NOW, THEREFORE, I, ELPIDIO QUIRINO, President of the Philippines, by virtue of the powers vested upon me by article VII, section 10, paragraph (2) of the Constitution, do hereby suspend the privilege of the writ of habeas corpus for the persons presently detained, as well as all others who may be hereafter similarly detained for the crimes of sedition, insurrection or rebellion, and or on the occasion thereof, or incident thereto, or in connection therewith. A. It is first argued that the proclamation is invalid because it partakes of a bill of attainder or an ex post facto law, and violates the constitutional percept that no bill of attainder or ex post

facto law shall be passed. The argument is devoid of merit. The prohibition applies only to
statutes. U.S. vs. Gen. El., 80 Fed. Supp. 989; De Pass vs. Bidwell, 24 Fed., 615.2 A bill of attainder is a legislative act which inflicts punishment without judicial trial. (16 C.J.S. p. 902; U.S. vs. Lovett (1946) 328 U.S. 303). Anyway, if, as we find, the stay of the writ was ordered in accordance with the powers expressly vested in the President by the Constitution, such order must be deemed an exception to the general prohibition against ex post facto laws and bills of attainder supposing there is a conflict between the prohibition and the suspension. On the other hand there is no doubt it was erroneous to include those accused of sedition among the persons as to whom suspension of the writ is decreed. Under the Constitution the only grounds for suspension of the privilege of the writ are invasion, insurrection, rebellion or imminent danger thereof. Obviously, however, the inclusion of sedition does not invalidate the entire proclamation; and it is immaterial in this case, inasmuch as the petitioners descendant is confined in jail not only for sedition, but for the graver offense of rebellion and insurrection. Without doing violence to the presidential directive, but in obedience to the supreme law of the land, the word sedition in Proclamation No. 210 should be deemed a mistake or surplusage that does not taint the decree as a whole.

B. In his second proposition appellant insists there is no state of invasion, insurrection, rebellion or imminent danger thereof. There are he admits intermittent sorties and lightning attacks by organized bands in different places; but, he argues, such sorties are occasional, localized and transitory. And the proclamation speaks no more than of overt of insurrection and rebellion, not of cases of invasion, insurrection or rebellion or imminent danger thereof. On this subject it is noted that the President concluded from the facts recited in the proclamation, and the other connected therewith, that there is actual danger rebellion which may extend throughout the country. Such official declaration implying much more than imminent danger of rebellion amply justifies the suspension of the writ. To the petitioners unpracticed eye the repeated encounters between dissident elements and military troops may seem sporadic, isolated, or casual. But the officers charged with the Nations security, analyzed the extent and pattern of such violent clashes and arrived at the conclusion that they are warp and woof of a general scheme to overthrow his government vi et

armis, by force and arms.

And we agree with the Solicitor General that in the light of the views of the United States Supreme Court thru, Marshall, Taney and Story quoted with approval in Barcelon vs. Baker (5 Phil., 87, pp. 98 and 100) the authority to decide whenever the exigency has arisen requiring the suspension belongs to the President and his decision is final and conclusive upon the courts and upon all other persons. Indeed as Justice Johnston said in that decision, whereas the Executive branch of the Government is enabled thru its civil and military branches to obtain information about peace and order from every quarter and corner of the nation, the judicial department, with its very limited machinery can not be in better position to ascertain or evaluate the conditions prevailing in the Archipelago. But even supposing the Presidents appraisal of the situation is merely prima facie, we see that petitioner in this litigation has failed to overcome the presumption of correctness which the judiciary accords to acts of the Executive and Legislative Departments of our Government. C. The petitioners last contention is that the respondents failed to establish that this son is included within the terms of the proclamation. On this topic, respondents return officially informed the court that Maximino had been arrested and was under custody for complicity in the commission of acts of rebellion, insurrection and sedition against the Republic of the Philippines. Not having traversed that allegation in time, petitioner must be deemed to have conceded it.

. . . In the absence of a denial, or appropriate pleading avoiding their effect, averment of facts in the return will be taken as true and conclusive, regardless of the allegations contained in the petition; and the only question for determination is whether or not the facts stated in the return, as a matter of law, authorizes the restraint under investigation. (39 C.J.S., 664-655.) D. An interesting issue is posed by amici curiae. The Bill of Rights prohibits suspension of the privilege of the writ of habeas corpus except when the public safety requires it, in cases of (1) invasion (2) insurrection or (3) rebellion. Article VII Section 10 authorizes the President to suspend the privilege, when public safety requires it, in cases of (1) invasion (2) insurrection or (3) rebellion or (4) imminent

danger thereof.
Imminent danger, is no cause for suspension under the Bill of Rights. It is under Article VII. To complicate matters, during the debates of the Constitutional Convention on the Bill of Rights, particularly the suspension of the writ, the Convention voted down an amendment adding a fourth cause of suspension: imminent danger of invasion, insurrection of rebellion. Professor Aruego a member of the Convention, describes the incident as follows: During the debates on the first draft, Delegate Francisco proposed as an amendment inserting, as a fourth cause for the suspension of the writ of habeas corpus imminent danger of the three causes included herein. When submitted to a vote for the first time, the amendment was carried. After this motion for a reconsideration of the amendment was approved, Delegate Orense spoke against the amendment alleging that it would be dangerous to make imminent danger a ground for the suspension of the writ of habeas corpus. In part, he said: Gentlemen, this phrase is too ambigous, and in the hands of a President who believes himself more or less a dictator, it is extremely dangerous, it would be a sword with which he would behead us.. In defense of the amendment, Delegate Francisco pointed out that it was intended to make this part of the bill of rights conform to that part of the draft giving the President the power to suspend the writ of habeas corpus also in the case of an imminent danger of invasion or rebellion. When asked by Delegate Rafols if the phrase, imminent danger, might not be struck out from this corresponding provisions under the executive power instead, Delegate Francisco answered: Outright, it is possible to eliminate the phrase, imminent danger thereof, in the page I have mentioned. But I say, going to the essence of referring exclusively to the necessity of including the words, of imminent danger of one or the other, I wish to say the following: that it should

not be necessary that there exists a rebellion, insurrection or invasion in order that habeas

corpus may be suspended. It should be sufficient that there exists not a danger but an
imminent danger, and the word, imminent, should be maintained. When there exists an imminent danger, the State requires for its protection and for that of all the citizens the suspension of habeas corpus. When put to vote for the second time, the amendment was defeated with 72 votes against and 56 votes in favor of the same. (I Aruegos Framing of the Philippine Constitution, pp. 180-181) Nevertheless when the Presidents specific powers under Article VII, were taken up there was no objection to his authority to suspend in case of imminent danger. (At least we are not informed of any debate thereon.) Now then, what is the effect of the seeming discrepancy? Is the prohibition of suspension in the bill of rights to be interpreted as limiting Legislative powers only not executive measures under section VII? Has article VII (sec. 10) pro

tanto modified the bill of rights in the same manner that a subsequent section of a statue
modifies a previous one? The difference between the two constitutional provisions would seem to be: whereas the bill of rights impliedly denies suspension in case of imminent dangers of invasion etc., article VII sec. 10 expressly authorizes the President to suspend when there is imminent danger of invasion etc. The following statements in a footnote in Cooleys Constitutional limitations (8th Ed.) p. 129, appear to be persuasive: It is a general rule in the construction of writings, that, a general intent appearing, it shall control the particular intent; but this rule must sometimes give way, and effect must be given to a particular intent plainly expressed in one part of a constitution, though apparently opposed to a general intent deduced from other parts. Warren V. Shuman, 5 Tex. 441. In Quick V. Whitewater Township, 7 Ind. 570, it was said that if two provisions of a written constitutions are irreconcilably repugnant, that which is last in order of time and in local position is to be preferred. In Gulf, C. & S. F. Ry. Co. v. Rambolt, 67 tex. 654, 4 S.W. 356, this rule was recognized as a last resort, but if the last provision is more comprehensive and specific, it was held that it should be given effect on that ground. And in Hoag vs. Washington Oregon Corp. (1915) 147 Pac. Rep., 756 at p. 763 it was said: It is a familiar rule of construction that, where two provisions of a written Constitution are repugnant to each other, that which is last in order of time and in local position is to be preferred. Quick v. White Water Township, 7 Ind., 570; G., C. & S.F. Ry. Co. v. Rambolt, 67

Tex. 654, 4 S.W. 356. So, even assuming the two clauses discuss are repugnant, the latter must prevail. Wherefore in the light of this precedents, the constitutional authority of the President to suspend in case of imminent danger of invasion, insurrection or rebellion under article VII may not correctly be placed in doubt. E. The petitioner insisted in the court below that the suspension should not apply to his son, because the latter had been arrested and had filed the petition before the Executive proclamation. On this phase of the controversy, it is our opinion that the order of suspension affects the power of the courts and operates immediately on all petitions therein pending at the time of its promulgation. A proclamation of the President suspending the writ of habeas corpus was held valid and efficient in law to suspend all proceedings pending upon habeas corpus, which was issued and served prior to the date of the proclamation. Matter of Dunn, D.C. N.Y. 1863, 25 How. Prac. 467, 8 Fed. Cas. 4,171. F. Premises considered, the decision of the court a quo refusing to release the prisoner is affirmed, without costs.

Paras, C.J., Pablo, Padilla, Montemayor, Bautista Angelo and Labrador, JJ., concur.

Republic of the Philippines SUPREME COURT Manila

EN BANC

G.R. No. 70748 October 21, 1985

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF LAURENTE C. ILAGAN, ANTONIO B. ARELLANO, and MARCOS D. RISONAR, JR., Integrated Bar of the Philippines [IBP]; Free Legal Assistance

Group [FLAG] and Movement of Attorneys For Brotherhood, Integrity and Nationalism, Inc., [MABINI], petitioners,

vs.

HON. JUAN PONCE ENRILE, Minister of National Defense; LT. GEN. FIDEL V. RAMOS, Acting Chief of Staff, Armed Forces of the Philippines; BRIG. GEN. DIONISIO TAN-GATUE, PC-INP Regional Commander for Region XI, Camp Catitipan, Davao City, respondents.

Roberto Concepcion, Jose B.L. Reyes, Raul S. Goco, Joker Arroyo, Haydee Yorac, Fulgencio S. Factoran, Francisco I. Chavez , Lorenzo M. Taada, Wigberto Taada and Martiniano Vivo for petitioners.

The Solicitor General for respondents.

MELENCIO-HERRERA, J.:

This is a petition for Habeas Corpus filed by the Integrated Bar of the Philippines (IBP), the Free Legal Assistance Group (FLAG); and the Movement of Attorneys for Brotherhood, Integrity and Nationalism (MABINI) on behalf of Attorneys Laurente C. Ilagan, Antonio B. Arellano, and Marcos Risonar, Jr.

The facts follow:

On May 10, 1985, Attorney Laurente C. Ilagan was arrested in Davao City by elements of the PC-INP and detained at Camp Catitipan on the basis of a Mission Order allegedly issued by the Ministry of National Defense. On that same day, fifteen lawyers from the IBP Davao Chapter visited Atty. Ilagan. One of the visiting lawyers, Atty. Antonio Arellano, was also arrested and detained on the basis of an unsigned Mission Order. On May 13, 1985, the military sent word to the IBP Davao Chapter that Attorney Marcos Risonar would likewise be arrested. The latter went to Camp Catitipan to verify his arrest papers and

was detained on the basis of a Mission Order signed by General Echavarria, Regional Unified Commander.

This petition for habeas corpus was then filed by and on behalf of the three arrested lawyers hereinafter referred to as the detained attorneys on the ground that their arrests were illegal and violative of the Constitution, since arrests cannot be made on the basis of Mission Orders. and that there appears to be a military campaign to harass lawyers involved in national security cases.

On May 16, 1985, the Court issued the Writ, required a Return, and set the petition for hearing on May 23, 1985.

In their Return, respondents contended that the detained attorneys were arrested on the basis of a PDA issued by the President on January 25, 1985; that the Writ of habeas corpus is suspended as to them by virtue of Proclamation No. 2045-A; and that pursuant to the ruling in Garcia-Padilla vs. Ponce Enrile, et al, [1] Courts lack the authority to inquire into the cause and validity of detention of persons held pursuant to the suspension. Respondents further expounded on the state of rebellion in Davao City on the basis of seized subversive documents, implying that the detained attorneys played active roles in organizing mass actions of the Communist Party of the Philippines and the National Democratic Front. Respondents then prayed for the denial of the petition.

During the hearing on May 23, 1985, the detained attorneys narrated to the Court the circumstances of their arrest and detention. Counsel for the respondents, on the other hand, presented evidence of subversive activities in Davao, but due to lack of evidence linking the detained attorneys with the alleged subversive activities, the Court, on the same day resolved to order the temporary release of the detained attorneys on the recognizance of the principal counsel of petitioners, namely, retired Chief Justice Roberto Concepcion and retired Associate Justice J.B.L. Reyes. The Court further resolved to give petitioners ten days within which to file a traverse to the Return of the Writ and the respondents ten days to file a Reply thereto.

The next day, or on May 24, 1985, petitioners filed a Manifestation and Motion stating that the detained attorneys had not yet been released and praying that they be released to the custody of the principal counsel of petioners at the Supreme Court.

On May 27, 1985, respondents filed an Urgent Motion for Reconsideration of this Courts Order of Release reiterating that the suspension of the Writ of Habeas Corpus has the effect of ousting the Court of its jurisdiction to hear the case, and attached thereto classified documents consisting of the Report of respondent Brig. Gen. Tan-Gatue stating that the detained attorneys were arrested not on the basis of their lawyering but for specific acts of rebellion and economic sabotage as well as for their leadership in the CPP even to the extent of attending CPP and NPA rites and using their profession as lawyers as cover-up for their activities in furtherance of CPP goals and objectives; and that the detained attorneys were involved in the Welgang Bayan in Davao City, a mass action with demands for the armed overthrow of the government. Sworn statements of several persons also implicated the detained attorneys in alleged subversive activities. Respondents added that, while there is a Court Order directing release, they, too, are under orders, pursuant to the PDA, to hold in custody the detained attorneys until ordered released by the President or by his duly authorized representative, and that the PDA, when issued, constitutes authority to preventively detain them for a period not exceeding one year.

On May 28, 1985, respondents filed an Urgent Manifestation/Motion stating that an Information for Rebellion was filed on May 27, 1985 against the detained attorneys before the Regional Trial Court of Davao City, Branch X, docketed as Criminal Case No. 12,349; that a Warrant of Arrest had been issued against them; and praying that this Petition be dismissed for having been rendered moot and academic.

On May 30, 1985, petitioners filed an Opposition to respondents Urgent Motion/Manifestation contending that since the detained attorneys were not given the benefit of preliminary investigation, they were denied their constitutional right to due process; consequently, the Information for Rebellion filed against them is void. Respondents, on the other hand, filed on the same day a Comment to petitioners Manifestation and Motion reiterating their prayer for the dismissal of the petition on the ground of mootness by virtue of the proceedings before the Regional Trial Court of Davao.

On June 3, 1985, petitioners filed a consolidated Comment and Traverse contending that the Welgang Bayans were in legitimate exercise of the constitutional right of expression and assembly to petition the government for redress of grievances; that the detained attorneys participation was limited to serving in the legal panel and the negotiating panels; that Proclamation No. 2045 is unconstitutional because there exists no factual or legal basis for the suspension of the Writ of Habeas Corpus as provided for in the Constitution; that the evidence presented by respondents against the detained attorneys are of a doubtful and flimsy nature; and that the PDA is unconstitutional because it violates Section 3, Article IV, of the Constitution prohibiting unreasonable searches and seizures.

On July 1, 1985, petitioners filed a Manifestation and Motion praying that the Court immediately resolve the issues raised as the case affects not only the detained attorneys but the entire legal profession and the administration of justice as well.

Finally, after two extensions granted by the Court, on July 8, 1985, respondents filed a Consolidated Reply, reiterating first, the validity of Proclamation No. 2045, as amended by Proclamation No. 2045-A and of the PDA issued against petitioners as an incident to the suspension of the privilege of the Writ of habeas corpus: secondly, the ruling in Garcia-Padilla vs. Ponce Enrile, et al.; [2] and thirdly, its prayer for the dismissal of the petition on the ground of mootness by virtue of the filing of an Information for Rebellion against the detained attorneys before the Regional Trial Court of Davao City.

As contended by respondents, the petition herein has been rendered moot and academic by virtue of the filing of an Information against them for Rebellion, a capital offense, before the Regional Trial Court of Davao City and the issuance of a Warrant of Arrest against them. [3] The function of the special proceeding of habeas corpus is to inquire into the legality of ones detention. Now that the detained attorneys incarceration is by virtue of a judicial order in relation to criminal cases subsequently filed against them before the Regional Trial Couravao City, the remedy of habeas corpus no longer lies. The Writ had served its purpose.[4]

SEC. 4. When writ not allowed or discharge authorized.-If it appears the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment, or order of a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment or order. Nor shall anything in this rule be held to authorize to discharge of a person charged with or convicted of an offense in the Philippines, or of a person suffering imprisonment under lawful judgment. (Rule 102)

If the detained attorneys question their detention because of improper arrest, or that no preliminary investigation has been conducted, the remedy is not a petition for a Writ of Habeas Corpus but a Motion before the trial court to quash the Warrant of Arrest, and /or the Information on grounds provided by the Rules or to ask for an investigation / reinvestigation of the case. [5] Habeas corpus would not lie after the Warrant of commitment was issued by the Court on the basis of the Information filed against the accused. [6] So is it explicitly provided for by Section. 14, Rule of 102 of the Rules of Court, reading:

SEC. 14. When person lawfully imprisoned recommitted and when let to bail.- If it appears that the prisoner was lawfully committed, and is plainly and specifically charged in the warrant of commitment with an offense punishable by death, he shall not be released, discharged, or bailed. If he is lawfully imprisoned or restrained on a charge of having committed an offense not so punishable, he may be recommitted to imprisonment or admitted to bail in the discretion of the court or judge. . . .

But petitioners submit that because of the absence of a preliminary investigation, the Information for Rebellion filed against the detained attorneys is void and the Court below could not have acquired jurisdiction over them, and consequently, they are entitled to release.

On the other hand, respondents contend that a preliminary investigation was unnecessary since the detained attorneys were lawfully arrested without a warrant.

Pursuant to the 1985 Rules on Criminal Procedure, no Information for an offense cognizable by the Regional Trial Court shall be filed without a preliminary investigation having been first conducted, except as provided for in Section 7 of Rule 112. [7] The Information filed by the City Fiscal before the Regional Trial Court of the City of Davao fell within the exception. Thus, the Verification reads:

VERIFICATION

I HEREBY CERTIFY that I am filing this Information in pursuance with Rule 112, Section 7 of the 1985 Rules on criminal Procedure, wherein after examining the affidavits of the government witnesses and other documents attached to the records, I found sufficient ground to hold respondents for trial.

(SGD.) EMMANUEL E. GALICIA

City Fiscal

Section 7, Rule 112, of the 1985 Rules on Criminal Procedure above referred to provides:

SEC. 7. When accused lawfully arrested without warrant.- When a person is lawfully arrested without a warrant for an offense cognizable by the Regional Trial Court the complaint or information may be filed by the offended party, peace officer or fiscal without preliminary investigation having been first conducted on the basis of the affidavit of the offended party or arrested officer or person.

However, before the filing of such complaint or information, the person arrested may ask for a preliminary investigation by a proper officer in accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended, with the assistance of a lawyer and in case of non-availability of a lawyer, a responsible person of his choice. Notwithstanding such waiver, he may apply for bail as provided in the corresponding rule and the investigation must be terminated within fifteen (15) days from its inception.

If the case has been filed in court without a preliminary investigation having been first conducted, the accused may within five (5) days from the time he learns of the filing of the information, ask for a preliminary investigation with the same right to adduce evidence in his favor in the manner prescribed in this Rule.

Section 5, Rule 113 of the same Rules enumerates the instances when an arrest without warrant is lawful.

SEC. 5. Arrest without warrant; when lawful.A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

In cases falling under paragraphs [al and [b] hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Section 7. (Rule 113)

Paragraphs (a) and (b) refer to cases when a suspect is caught in flagrante delicto or immediately thereafter, while paragraph (c) refers to escaping prisoners. As to whether the detained attorneys fall under either of the first two instances enumerated is a question of fact, which will need the presentation of evidence and is more properly within the province of the trial Court.

The question of absence of a proper preliminary investigation is also better inquired into by the Court below. When so raised, this Court, speaking through Mr. Justice Claudio Teehankee, has held that the trial Court is called upon not to dismiss the information but hold the case in abeyance and conduct its own investigation or require the fiscal to hold a reinvestigation. [8] As stressed in People vs. Casiano, 1 SCRA 478 [1961], this is the proper procedure since the absence of such investigation did not impair the validity of the Information or otherwise render it defective. Much less did it affect the jurisdiction of the Court of First Instance. [9] The right to a preliminary investigation, being waivable, does not argue against the validity of the proceedings, the most that could have been done being to remand the case in order that such investigation could be conducted. [10]

The proper forum before which absence of preliminary investigation should be ventilated is the Court of First Instance, not this Court. Reason is not wanting for this view. Absence of preliminary investigation does not go to the jurisdiction of the court but merely to the regularity of the proceedings. It could even be waived. Indeed, it is frequently waived. These are matters to be inquired into by the trial court, not an appellate Court. [11]

The Nolasco case, which petitioners invoke, [12] wherein this Court ordered the release of two of the accused, is not on all fours with the case at bar as, in that case, the accused were charged only with Illegal Possession of Subversive documents under Presidential Decree No. 33, which is punishable by prision correccional in its minimum period, and the trial Court had granted bail; whereas in this case, petitioners are charged with the capital offense of Rebellion, and the trial Court has not allowed bail.

WHEREFORE, this petition for Habeas Corpus is hereby dismissed for having become moot and academic. Petitioners are now detained by virtue of a Warrant of Arrest issued by the Regional Trial Court of Davao City in relation to the criminal case for Rebellion filed against them before said Court.

SO ORDERED.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-2781 May 4, 1946

HAYDEE HERRAS TEEHANKEE, vs. DIRECTOR OF PRISONS, ET AL. In re ANTONIO QUIRINO, respondent. Judge Antonio Quirino in his own behalf. Emerito M. Ramos, Pres., Civil Liberties Union, Francisco A. Delgado, Pres., Philippine Bar Association, and Manuel M. Crudo, Vice-Pres., Philippine Lawyers' Guild, as amici curiae. PER CURIAM, J.: For the first time, this body is called upon to sit in proceeding for contempt committed against it by a judge of a lower court. The situation is novel, but the governing principles are not uncertain, parallel incidents having happened before in other jurisdiction is under the American flag. There is no dispute as to the facts: On February 16, 1946, by a six-to-five resolution, we directed that, upon filing a bond of fiftythousand pesos, Haydee Herras Teehankee, a political detainee, be forthwith released from official custody. The resolution upset a previous order of the fifth division of the People's Court denying her petition for bail under Act No. 682. Three days later, Judge Antonio Quirino, a member of said division, speaking in the presence of newspaper reporters and for publication, criticized this Supreme Court for allegedly "committing its biggest blunder" because it "robbed" the People's Court of its "inherent power" to decide cases for bail. Mincing no words, he said: "The Supreme Court has no intellectual leadership. What it has is mere sentimental leadership." In the heat of the denunciation he added that the case had been decided against him "by quantitative voting, not qualitative," even branding some of the members of this Court as "intellectually dishonest." His words were accordingly published in several local dailies. It was unusual for a judge, so to talk publicly to defend his decision that had been reversed by a higher Tribunal. It was unheard of that an inferior judge should so warmly uphold his views in a case. Local judges had heretofore regarded reversals as mere differences of opinion, involving no personal considerations. But the respondent, judge of a court of recent creation, hated the beaten path. He sought to blaze a new trail. He knew so he asserted that, as a private citizen, he had

the privilege to criticize this Court's pronouncements, in the exercise of his constitutional privilege of free speech. Unfortunately he spoke too soon. Our resolution specifically announced the intention of the majority to write and promulgate a more extended decision, and the reservation of the dissenting members to deliver a written opinion. The cause had not finally ended, not only because of that reservation, but also because it was still open to a motion for reconsideration. And it is a known principle in these parts that "newspaper publications tending to impede, obstruct, embarrass, or influence the courts in administering justice in a pending suit or proceeding, constitute criminal contempt which is summarily punishable." (In re Abistado, 57 Phil., 668; In re Torres, 55 Phil., 799.). Now, realizing that little respect is due to a court that will hesitate to check or discipline any of its attorneys or officers who are so devoid of professional ethics and ordinary courtesy as to misrepresent and vilify it . . without any cause or semblance of reason (Re Breen, 17 L. R. A. [N. S.], 572, 580), we required respondent to answer why he should not be punished for such contemptuous behavior. For it is settled that "When it comes . . . . to the knowledge of the presiding justice of a court that (contemptuous) articles are published in a newspaper . . . . the court of its own motion can (and should) institute proceedings for contempt. Such a power in the court is necessary for its own protection against an improper interference with the due administration of justice, and it is not dependent upon the complaint of any of the parties litigant . . . ." (Telegram Newspaper Co. vs. Commonwealth, 172 Mass., 294; 44 L. R. A., 159.) Chief Justice Taft concurring Craig vs. Hecht (68 Law., ed., 293, 300). And it is now unquestioned that the court itself is competent to deal with, and pass upon, such direspectful conduct. (17 C. J. S., pp. 66 and 79.) Appearing in his own behalf, Judge Quirino argued in exculpation, that, at the time he made the caustic remarks, the Teehankee litigation was no longer pending, because said detainee was already at liberty, under bail. The fact remains, however, that this court had not written its full-dress decision and the dissenting opinion, as it had announced. And Teehankee's liberty was subject always to any adverse conclusion which this court might arrive at, in a motion for reconsideration, if any. It may be explained at this juncture, that the release of said detainee, pending the promulgation of an extended opinion, was ordered in the exercise of this court's power to make such orders as may be necessary to expedite proceedings in special civil actions, and to render judgment for such relief prayed for as the petitioner is entitled to . . . . as justice requires. The Court had not yet exhausted its power over the litigation. There was something yet to be done in the premises, and the publication of the criticism, aside from its strongly intemperate language, tended to embarrass this Court in the performance of its functions. To be specific: At the time of adopting the resolution, the majority members made up their minds to announce in the extended decision that, as a general rule, in cases of abuse of discretion in the matter of bail, our judgment should be to return the case to the People's Court with a direction for the granting of bail; but in this particular case, in view of the long process which the petitioner had to undergo, the majority thought it conformable to equity and justice that she should be bailed immediately. After the criticism had been launched, it became a bit embarrassing for said majority members to expound that view in the full-dress opinion, because the public might suspect they had receded somewhat from their stand, falsely represented as "robbing" the People's Court of its power to grant bail. Again, the minority members proposed to question our authority directly to grant bail. After Judge Quirino, without waiting for their dissent, had publicly raised the same doubt, said minority felt uneasy to appear as taking the cue from him. And so of other phases of the issue. It is this harmful obstruction and hindrance that the judiciary strives to avoid, under penalty of contempt. As this Supreme Court once stated, it must "insist on being permitted to proceed to the disposition of its business in an orderly manner, free from outside interference obstructive of its functions and tending to embarrass the administration of justice." (In re Torres, supra.) For, as explained in another decision, "The publication of a criticism of a party or of the court to a pending

cause, respecting the same, has always been considered as misbehavior, tending to obstruct the administration of justice and subjects such persons to contempt proceedings. Parties have a constitutional right to have their causes tried fairly in court, by an impartial tribunal, uninfluenced by publications or public clamor. Every citizen has profound personal interest in the enforcement of the fundamental right to have justice administered by the courts, under the protection and forms of law, free from outside coercion or interference. (Copper vs. People, 13 Colo., 373.)" (In re Kelly, 35 Phil. 944, 951.) . . . . .any act, conduct, or directing agency pertaining to pending proceedings "intended to play on human frailty, and to deflect and deter the court from the performance of its duty, and drive it into a compromise with its own unfettered judgment, by placing it, through the medium of knowingly false assertion, in a wrong position before a public which has little opportunity to investigate the facts and ascertain the truth," regardless of results, "clearly constitutes "an obstruction to the administration of justice," and is contemptuous and within the inherent power of the court to punish. United States vs. Craig (D. C.), 266 Fed., 230; Michaelson vs. United States, 266 U. S., 42, 65; 69 Law. ed., 162, 167; 35 A. L. R., 451; 45 Sup. Ct. Rep., 18; Little vs. State, 90 Ind., 338; 46 Am. Rep., 224; Rey vs. State, 186 Ind., 396; 114 N. E., 866; Dale vs. State, 198 Ind., 110; 49 A. L. R., 647; 150 N. E., 781. Under the authorities, it is clear that the Teehankee case was still pending at the time of the vexatious comments. As summarized in 17 C. J. S., p. 44, "A cause remains pending so long as there is still something for the court to do therein, the doing of which may be embarrassed, impeded, or obstructed by the complained of publication." It is no defense to say, as Judge Quirino said, that he thought the matter had ended. Ignorance of the law is no excuse. "A man's fate often depends, ..., on that he will estimate rightly. If his judgment is wrong, not only may he incur a fine or a short imprisonment, he may even incur the penalty of death," (Nash vs. United States, 229 U. S., 373; Williams Vs. North Carolina, 325 U. S., 226.) This same remark applies to his belief that the resolution was void. It was not void, and in taking his stand he incurred the risk. Neither is it a defense that the blast had been provoked by certain allegedly offensive paragraphs or phrases contained in the dissenting opinion of a member of this court in a previous case, already terminated, Herras Teehankee vs. Rovira (75 Phil., 634); because everybody knows and respondent ought to know, that the dissenter's views are peculiarly his own, not binding on this Court. The respondent also claimed at the oral argument that he had no intention in any way to commit contempt. The plea is not made under oath, respondent having declined to testify before the investigator designated by this Court, thereby evading a cross-examination on that particular point. Anyway, whether or not an act constitutes contempt depends on its nature and not in the presence of actual intent. (17 C. J. S., p. 10.) Although the absence of such intent may be considered in mitigation of the offense. (17 C. J. S., p. 44.). In this connection, the Court must refuse to delve into the question of validity or correctness of the assailed resolution. We did so in the extended decision soon to be promulgated. The proper place for any further discussion would be in a motion for reconsideration, if any, of such decision. In view of the foregoing considerations, we reach the unanimous conclusion that the respondent judge committed contempt. Justice Johnson, speaking for the Court in In re Kelly (35 Phil., 944), dismissing the contention that this Court had no power to punish for contempt because the statutes contained no provisions

expressly authorizing it, proved the power to punish for contempt is inherent in all courts, and sentenced the culprit to be imprisoned for a period of six months and to pay a fine of P1,000. In other contempt cases arising from obnoxious publications, a fine was imposed: (In re Lozano and Quevedo, 54 Phil., 801; In re Abistado, supra; and In re Torres, supra.). Once in Nevada, a district judge, after reversal of his decision by the State Supreme Court, publicly asserted the higher court had made as statement of facts not supported by the record and had reprehensibly reversed the law accepted for forty years. The Supreme Court of Nevada, after hearing, suspended him from the practice of law, until further orders, and "unless within twenty days from the filing of the opinion" he gives satisfaction, "a further order will be entered disbarring him" forever. (Re Breen, supra; see also Re Fite, 11 Ga. App., 665; 76 S. E., 397; 49 A. L. R., 663.) . On the other hand, this court has adopted the healthy principle that in these matters we must be tolerant, the object being correction, not retaliation. (In re Torres, supra.) Representatives of the Philippine Bar Association and of the Lawyer's Guild, appearing as amici curiae, pleaded for a liberal attitude, assuring us the publication had not in the least affected the court's prestige and standing, albeit manifesting anxious concern over individual freedom of speech and of the press. There should be no apprehension in that regard because this court believes That the constitutional guaranty of freedom of speech and press must be protected in its fullest extent, but license or abuse of liberty of the press and of the citizen should not be confused with liberty in its true sense; that as important as is the maintenance of an unmuzzled press and the free exercise of the rights of the citizen is the maintenance of the independence of the judiciary; (In re Abistado, supra.) Respondent himself, at the oral argument, made efforts to show he meant no offense. In view of the circumstances and the fact that respondent is a recent appointee to the judiciary, it is the sense of all the members in consultation assembled, that the ends of justice will be met if Judge Antonio Quirino is given a reprimand, with the warning that a repetition of the offense will be drastically dealt with. Wherefore, he is hereby reprimanded. Moran, C.J., Ozaeta, Paras, Jaranilla, Feria, De Joya, Pablo, Perfecto, Hilado, Bengzon Briones, JJ., concur.