THE DUE PROCESS CLAUSE PROCDEDURE ordered the sale of the property.
ordered the sale of the property. The sale took place upon July 30, 1908, and the
G.R. No. L-11390 March 26, 1918
EL BANCO ESPAOL-FILIPINO, plaintiff-appellant,
vs.
VICENTE PALANCA, administrator of the estate of Engracio Palanca Tanquinyeng,
defendant-appellant.
Aitken and DeSelms for appellant.
Hartigan and Welch for appellee.
STREET, J.:
This action was instituted upon March 31, 1908, by "El Banco Espanol-Filipino" to
foreclose a mortgage upon various parcels of real property situated in the city of
Manila. The mortgage in question is dated June 16, 1906, and was executed by the
original defendant herein, Engracio Palanca Tanquinyeng y Limquingco, as security
for a debt owing by him to the bank. Upon March 31, 1906, the debt amounted to
P218,294.10 and was drawing interest at the rate of 8 per centum per annum,
payable at the end of each quarter. It appears that the parties to this mortgage at
that time estimated the value of the property in question at P292,558, which was
about P75,000 in excess of the indebtedness. After the execution of this instrument
by the mortgagor, he returned to China which appears to have been his native
country; and he there died, upon January 29, 1810, without again returning to the
Philippine Islands.
As the defendant was a nonresident at the time of the institution of the present
action, it was necessary for the plaintiff in the foreclosure proceeding to give notice
to the defendant by publication pursuant to section 399 of the Code of Civil
Procedure. An order for publication was accordingly obtained from the court, and
publication was made in due form in a newspaper of the city of Manila. At the same
time that the order of the court should deposit in the post office in a stamped
envelope a copy of the summons and complaint directed to the defendant at his last
place of residence, to wit, the city of Amoy, in the Empire of China. This order was
made pursuant to the following provision contained in section 399 of the Code of
Civil Procedure:
In case of publication, where the residence of a nonresident or absent defendant is
known, the judge must direct a copy of the summons and complaint to be forthwith
deposited by the clerk in the post-office, postage prepaid, directed to the person to
be served, at his place of residence
Whether the clerk complied with this order does not affirmatively appear. There is,
however, among the papers pertaining to this case, an affidavit, dated April 4, 1908,
signed by Bernardo Chan y Garcia, an employee of the attorneys of the bank,
showing that upon that date he had deposited in the Manila post-office a registered
letter, addressed to Engracio Palanca Tanquinyeng, at Manila, containing copies of
the complaint, the plaintiff's affidavit, the summons, and the order of the court
directing publication as aforesaid. It appears from the postmaster's receipt that
Bernardo probably used an envelope obtained from the clerk's office, as the receipt
purports to show that the letter emanated from the office.
The cause proceeded in usual course in the Court of First Instance; and the
defendant not having appeared, judgment was, upon July 2, 1908, taken against him
by default. Upon July 3, 1908, a decision was rendered in favor of the plaintiff. In this
decision it was recited that publication had been properly made in a periodical, but
nothing was said about this notice having been given mail. The court, upon this
occasion, found that the indebtedness of the defendant amounted to P249,355. 32,
with interest from March 31, 1908. Accordingly it was ordered that the defendant
should, on or before July 6, 1908, deliver said amount to the clerk of the court to be
applied to the satisfaction of the judgment, and it was declared that in case of the
failure of the defendant to satisfy the judgment within such period, the mortgage
property located in the city of Manila should be exposed to public sale. The payment
contemplated in said order was never made; and upon July 8, 1908, the court
property was bought in by the bank for the sum of P110,200. Upon August 7, 1908,
this sale was confirmed by the court.
About seven years after the confirmation of this sale, or to the precise, upon June
25, 1915, a motion was made in this cause by Vicente Palanca, as administrator of
the estate of the original defendant, Engracio Palanca Tanquinyeng y Limquingco,
wherein the applicant requested the court to set aside the order of default of July 2,
1908, and the judgment rendered upon July 3, 1908, and to vacate all the
proceedings subsequent thereto. The basis of this application, as set forth in the
motion itself, was that the order of default and the judgment rendered thereon were
void because the court had never acquired jurisdiction over the defendant or over
the subject of the action.
At the hearing in the court below the application to vacate the judgment was denied,
and from this action of the court Vicente Planca, as administrator of the estate of the
original defendant, has appealed. No other feature of the case is here under
consideration than such as related to the action of the court upon said motion.
The case presents several questions of importance, which will be discussed in what
appears to be the sequence of most convenient development. In the first part of this
opinion we shall, for the purpose of argument, assume that the clerk of the Court of
First Instance did not obey the order of the court in the matter of mailing the papers
which he was directed to send to the defendant in Amoy; and in this connection we
shall consider, first, whether the court acquired the necessary jurisdiction to enable
it to proceed with the foreclosure of the mortgage and, secondly, whether those
proceedings were conducted in such manner as to constitute due process of law.
The word "jurisdiction," as applied to the faculty of exercising judicial power, is used
in several different, though related, senses since it may have reference (1) to the
authority of the court to entertain a particular kind of action or to administer a
particular kind of relief, or it may refer to the power of the court over the parties, or
(2) over the property which is the subject to the litigation.
The sovereign authority which organizes a court determines the nature and extent of
its powers in general and thus fixes its competency or jurisdiction with reference to
the actions which it may entertain and the relief it may grant.
Jurisdiction over the person is acquired by the voluntary appearance of a party in
court and his submission to its authority, or it is acquired by the coercive power of
legal process exerted over the person.
Jurisdiction over the property which is the subject of the litigation may result either
from a seizure of the property under legal process, whereby it is brought into the
actual custody of the law, or it may result from the institution of legal proceedings
wherein, under special provisions of law, the power of the court over the property is
recognized and made effective. In the latter case the property, though at all times
within the potential power of the court, may never be taken into actual custody at
all. An illustration of the jurisdiction acquired by actual seizure is found in
attachment proceedings, where the property is seized at the beginning of the action,
or some subsequent stage of its progress, and held to abide the final event of the
litigation. An illustration of what we term potential jurisdiction over the res, is found
in the proceeding to register the title of land under our system for the registration of
land. Here the court, without taking actual physical control over the property
assumes, at the instance of some person claiming to be owner, to exercise a
jurisdiction in rem over the property and to adjudicate the title in favor of the
petitioner against all the world.
In the terminology of American law the action to foreclose a mortgage is said to be a
proceeding quasi in rem, by which is expressed the idea that while it is not strictly
speaking an action in rem yet it partakes of that nature and is substantially such.
The expression "action in rem" is, in its narrow application, used only with reference
to certain proceedings in courts of admiralty wherein the property alone is treated
as responsible for the claim or obligation upon which the proceedings are based. The
action quasi rem differs from the true action in rem in the circumstance that in the
former an individual is named as defendant, and the purpose of the proceeding is to
subject his interest therein to the obligation or lien burdening the property. All
proceedings having for their sole object the sale or other disposition of the property
of the defendant, whether by attachment, foreclosure, or other form of remedy, are
in a general way thus designated. The judgment entered in these proceedings is
conclusive only between the parties.
In speaking of the proceeding to foreclose a mortgage the author of a well known
treaties, has said:
Though nominally against person, such suits are to vindicate liens; they proceed
upon seizure; they treat property as primarily indebted; and, with the qualification
above-mentioned, they are substantially property actions. In the civil law, they are
styled hypothecary actions, and their sole object is the enforcement of the lien
against the res; in the common law, they would be different in chancery did not treat
the conditional conveyance as a mere hypothecation, and the creditor's right ass an
equitable lien; so, in both, the suit is real action so far as it is against property, and
seeks the judicial recognition of a property debt, and an order for the sale of the res.
(Waples, Proceedings In Rem. sec. 607.)
It is true that in proceedings of this character, if the defendant for whom publication
is made appears, the action becomes as to him a personal action and is conducted
as such. This, however, does not affect the proposition that where the defendant
fails to appear the action is quasi in rem; and it should therefore be considered with
reference to the principles governing actions in rem.
There is an instructive analogy between the foreclosure proceeding and an action of
attachment, concerning which the Supreme Court of the United States has used the
following language:
If the defendant appears, the cause becomes mainly a suit in personam, with the
added incident, that the property attached remains liable, under the control of the
court, to answer to any demand which may be established against the defendant by
the final judgment of the court. But, if there is no appearance of the defendant, and
no service of process on him, the case becomes, in its essential nature, a proceeding
in rem, the only effect of which is to subject the property attached to the payment of
the defendant which the court may find to be due to the plaintiff. (Cooper vs.
Reynolds, 10 Wall., 308.)
In an ordinary attachment proceeding, if the defendant is not personally served, the
preliminary seizure is to, be considered necessary in order to confer jurisdiction
upon the court. In this case the lien on the property is acquired by the seizure; and
the purpose of the proceedings is to subject the property to that lien. If a lien
already exists, whether created by mortgage, contract, or statute, the preliminary
seizure is not necessary; and the court proceeds to enforce such lien in the manner
provided by law precisely as though the property had been seized upon attachment.
(Roller vs. Holly, 176 U. S., 398, 405; 44 L. ed., 520.) It results that the mere
circumstance that in an attachment the property may be seized at the inception of
the proceedings, while in the foreclosure suit it is not taken into legal custody until
the time comes for the sale, does not materially affect the fundamental principle
involved in both cases, which is that the court is here exercising a jurisdiction over
the property in a proceeding directed essentially in rem.
Passing now to a consideration of the jurisdiction of the Court of First Instance in a
mortgage foreclosure, it is evident that the court derives its authority to entertain
the action primarily from the statutes organizing the court. The jurisdiction of the
court, in this most general sense, over the cause of action is obvious and requires no
comment. Jurisdiction over the person of the defendant, if acquired at all in such an
action, is obtained by the voluntary submission of the defendant or by the personal
service of process upon him within the territory where the process is valid. If,
however, the defendant is a nonresident and, remaining beyond the range of the
personal process of the court, refuses to come in voluntarily, the court never
acquires jurisdiction over the person at all. Here the property itself is in fact the sole
thing which is impleaded and is the responsible object which is the subject of the
exercise of judicial power. It follows that the jurisdiction of the court in such case is
based exclusively on the power which, under the law, it possesses over the property;
and any discussion relative to the jurisdiction of the court over the person of the
defendant is entirely apart from the case. The jurisdiction of the court over the
property, considered as the exclusive object of such action, is evidently based upon
the following conditions and considerations, namely: (1) that the property is located
within the district; (2) that the purpose of the litigation is to subject the property by
sale to an obligation fixed upon it by the mortgage; and (3) that the court at a
proper stage of the proceedings takes the property into custody, if necessary, and
expose it to sale for the purpose of satisfying the mortgage debt. An obvious
corollary is that no other relief can be granted in this proceeding than such as can
be enforced against the property.
We may then, from what has been stated, formulated the following proposition
relative to the foreclosure proceeding against the property of a nonresident
mortgagor who fails to come in and submit himself personally to the jurisdiction of
the court: (I) That the jurisdiction of the court is derived from the power which it
possesses over the property; (II) that jurisdiction over the person is not acquired and
is nonessential; (III) that the relief granted by the court must be limited to such as
can be enforced against the property itself.
It is important that the bearing of these propositions be clearly apprehended, for
there are many expressions in the American reports from which it might be inferred
that the court acquires personal jurisdiction over the person of the defendant by
publication and notice; but such is not the case. In truth the proposition that
jurisdiction over the person of a nonresident cannot be acquired by publication and
notice was never clearly understood even in the American courts until after the
decision had been rendered by the Supreme Court of the United States in the
leading case of Pennoyer vs. Neff (95 U. S. 714; 24 L. ed., 565). In the light of that
decision, and of other decisions which have subsequently been rendered in that and
other courts, the proposition that jurisdiction over the person cannot be thus
acquired by publication and notice is no longer open to question; and it is now fully
established that a personal judgment upon constructive or substituted service
against a nonresident who does not appear is wholly invalid. This doctrine applies to
all kinds of constructive or substituted process, including service by publication and
personal service outside of the jurisdiction in which the judgment is rendered; and
the only exception seems to be found in the case where the nonresident defendant
has expressly or impliedly consented to the mode of service. (Note to Raher vs.
Raher, 35 L. R. A. [N. S. ], 292; see also 50 L .R. A., 585; 35 L. R. A. [N. S.], 312
The idea upon which the decision in Pennoyer vs. Neff (supra) proceeds is that the
process from the tribunals of one State cannot run into other States or countries and
that due process of law requires that the defendant shall be brought under the
power of the court by service of process within the State, or by his voluntary
appearance, in order to authorize the court to pass upon the question of his personal
liability. The doctrine established by the Supreme Court of the United States on this
point, being based upon the constitutional conception of due process of law, is
binding upon the courts of the Philippine Islands. Involved in this decision is the
principle that in proceedings in rem or quasi in rem against a nonresident who is not
served personally within the state, and who does not appear, the relief must be
confined to the res, and the court cannot lawfully render a personal judgment
against him. (Dewey vs. Des Moines, 173 U. S., 193; 43 L. ed., 665; Heidritter vs.
Elizabeth Oil Cloth Co., 112 U. S., 294; 28 L. ed., 729.) Therefore in an action to
foreclose a mortgage against a nonresident, upon whom service has been effected
exclusively by publication, no personal judgment for the deficiency can be entered.
(Latta vs. Tutton, 122 Cal., 279; Blumberg vs. Birch, 99 Cal., 416.)
It is suggested in the brief of the appellant that the judgment entered in the court
below offends against the principle just stated and that this judgment is void
because the court in fact entered a personal judgment against the absent debtor for
the full amount of the indebtedness secured by the mortgage. We do not so
interpret the judgment.
In a foreclosure proceeding against a nonresident owner it is necessary for the court,
as in all cases of foreclosure, to ascertain the amount due, as prescribed in section
256 of the Code of Civil Procedure, and to make an order requiring the defendant to
pay the money into court. This step is a necessary precursor of the order of sale. In
the present case the judgment which was entered contains the following words:
Because it is declared that the said defendant Engracio Palanca Tanquinyeng y
Limquingco, is indebted in the amount of P249,355.32, plus the interest, to the
'Banco Espanol-Filipino' . . . therefore said appellant is ordered to deliver the above
amount etc., etc.
This is not the language of a personal judgment. Instead it is clearly intended merely
as a compliance with the requirement that the amount due shall be ascertained and
that the evidence of this it may be observed that according to the Code of Civil
Procedure a personal judgment against the debtor for the deficiency is not to be
rendered until after the property has been sold and the proceeds applied to the
mortgage debt. (sec. 260).
The conclusion upon this phase of the case is that whatever may be the effect in
other respects of the failure of the clerk of the Court of First Instance to mail the
proper papers to the defendant in Amoy, China, such irregularity could in no wise
impair or defeat the jurisdiction of the court, for in our opinion that jurisdiction rest
upon a basis much more secure than would be supplied by any form of notice that
could be given to a resident of a foreign country.
Before leaving this branch of the case, we wish to observe that we are fully aware
that many reported cases can be cited in which it is assumed that the question of
the sufficiency of publication or notice in a case of this kind is a question affecting
the jurisdiction of the court, and the court is sometimes said to acquire jurisdiction
by virtue of the publication. This phraseology was undoubtedly originally adopted by
the court because of the analogy between service by the publication and personal
service of process upon the defendant; and, as has already been suggested, prior to
the decision of Pennoyer vs. Neff (supra) the difference between the legal effects of
the two forms of service was obscure. It is accordingly not surprising that the modes
of expression which had already been molded into legal tradition before that case
was decided have been brought down to the present day. But it is clear that the
legal principle here involved is not effected by the peculiar language in which the
courts have expounded their ideas.
We now proceed to a discussion of the question whether the supposed irregularity in
the proceedings was of such gravity as to amount to a denial of that "due process of
law" which was secured by the Act of Congress in force in these Islands at the time
this mortgage was foreclosed. (Act of July 1, 1902, sec. 5.) In dealing with questions
involving the application of the constitutional provisions relating to due process of
law the Supreme Court of the United States has refrained from attempting to define
with precision the meaning of that expression, the reason being that the idea
expressed therein is applicable under so many diverse conditions as to make any
attempt ay precise definition hazardous and unprofitable. As applied to a judicial
proceeding, however, it may be laid down with certainty that the requirement of due
process is satisfied if the following conditions are present, namely; (1) There must be
a court or tribunal clothed with judicial power to hear and determine the matter
before it; (2) jurisdiction must be lawfully acquired over the person of the defendant
or over the property which is the subject of the proceeding; (3) the defendant must
be given an opportunity to be heard; and (4) judgment must be rendered upon
lawful hearing.
Passing at once to the requisite that the defendant shall have an opportunity to be
heard, we observe that in a foreclosure case some notification of the proceedings to
the nonresident owner, prescribing the time within which appearance must be
made, is everywhere recognized as essential. To answer this necessity the statutes
generally provide for publication, and usually in addition thereto, for the mailing of
notice to the defendant, if his residence is known. Though commonly called
constructive, or substituted service of process in any true sense. It is merely a
means provided by law whereby the owner may be admonished that his property is
the subject of judicial proceedings and that it is incumbent upon him to take such
steps as he sees fit to protect it. In speaking of notice of this character a distinguish
master of constitutional law has used the following language:
. . . if the owners are named in the proceedings, and personal notice is provided for,
it is rather from tenderness to their interests, and in order to make sure that the
opportunity for a hearing shall not be lost to them, than from any necessity that the
case shall assume that form. (Cooley on Taxation [2d. ed.], 527, quoted in Leigh vs.
Green, 193 U. S., 79, 80.)
It will be observed that this mode of notification does not involve any absolute
assurance that the absent owner shall thereby receive actual notice. The periodical
containing the publication may never in fact come to his hands, and the chances
that he should discover the notice may often be very slight. Even where notice is
sent by mail the probability of his receiving it, though much increased, is dependent
upon the correctness of the address to which it is forwarded as well as upon the
regularity and security of the mail service. It will be noted, furthermore, that the
provision of our law relative to the mailing of notice does not absolutely require the
mailing of notice unconditionally and in every event, but only in the case where the
defendant's residence is known. In the light of all these facts, it is evident that actual
notice to the defendant in cases of this kind is not, under the law, to be considered
absolutely necessary.
The idea upon which the law proceeds in recognizing the efficacy of a means of
notification which may fall short of actual notice is apparently this: Property is
always assumed to be in the possession of its owner, in person or by agent; and he
may be safely held, under certain conditions, to be affected with knowledge that
proceedings have been instituted for its condemnation and sale.
It is the duty of the owner of real estate, who is a nonresident, to take measures that
in some way he shall be represented when his property is called into requisition, and
if he fails to do this, and fails to get notice by the ordinary publications which have
usually been required in such cases, it is his misfortune, and he must abide the
consequences. (6 R. C. L., sec. 445 [p. 450]).
It has been well said by an American court:
If property of a nonresident cannot be reached by legal process upon the
constructive notice, then our statutes were passed in vain, and are mere empty
legislative declarations, without either force, or meaning; for if the person is not
within the jurisdiction of the court, no personal judgment can be rendered, and if the
judgment cannot operate upon the property, then no effective judgment at all can
be rendered, so that the result would be that the courts would be powerless to assist
a citizen against a nonresident. Such a result would be a deplorable one. (Quarl vs.
Abbett, 102 Ind., 233; 52 Am. Rep., 662, 667.)
It is, of course universally recognized that the statutory provisions relative to
publication or other form of notice against a nonresident owner should be complied
with; and in respect to the publication of notice in the newspaper it may be stated
that strict compliance with the requirements of the law has been held to be
essential. In Guaranty Trust etc. Co. vs. Green Cove etc., Railroad Co. (139 U. S.,
137, 138), it was held that where newspaper publication was made for 19 weeks,
when the statute required 20, the publication was insufficient.
With respect to the provisions of our own statute, relative to the sending of notice by
mail, the requirement is that the judge shall direct that the notice be deposited in
the mail by the clerk of the court, and it is not in terms declared that the notice must
be deposited in the mail. We consider this to be of some significance; and it seems
to us that, having due regard to the principles upon which the giving of such notice
is required, the absent owner of the mortgaged property must, so far as the due
process of law is concerned, take the risk incident to the possible failure of the clerk
to perform his duty, somewhat as he takes the risk that the mail clerk or the mail
carrier might possibly lose or destroy the parcel or envelope containing the notice
before it should reach its destination and be delivered to him. This idea seems to be
strengthened by the consideration that placing upon the clerk the duty of sending
notice by mail, the performance of that act is put effectually beyond the control of
the plaintiff in the litigation. At any rate it is obvious that so much of section 399 of
the Code of Civil Procedure as relates to the sending of notice by mail was complied
with when the court made the order. The question as to what may be the
consequences of the failure of the record to show the proof of compliance with that
requirement will be discussed by us further on.
The observations which have just been made lead to the conclusion that the failure
of the clerk to mail the notice, if in fact he did so fail in his duty, is not such an
irregularity, as amounts to a denial of due process of law; and hence in our opinion
that irregularity, if proved, would not avoid the judgment in this case. Notice was
given by publication in a newspaper and this is the only form of notice which the law
unconditionally requires. This in our opinion is all that was absolutely necessary to
sustain the proceedings.
It will be observed that in considering the effect of this irregularity, it makes a
difference whether it be viewed as a question involving jurisdiction or as a question
involving due process of law. In the matter of jurisdiction there can be no distinction
between the much and the little. The court either has jurisdiction or it has not; and if
the requirement as to the mailing of notice should be considered as a step
antecedent to the acquiring of jurisdiction, there could be no escape from the
conclusion that the failure to take that step was fatal to the validity of the judgment.
In the application of the idea of due process of law, on the other hand, it is clearly
unnecessary to be so rigorous. The jurisdiction being once established, all that due
process of law thereafter requires is an opportunity for the defendant to be heard;
and as publication was duly made in the newspaper, it would seem highly
unreasonable to hold that failure to mail the notice was fatal. We think that in
applying the requirement of due process of law, it is permissible to reflect upon the
purposes of the provision which is supposed to have been violated and the principle
underlying the exercise of judicial power in these proceedings. Judge in the light of
these conceptions, we think that the provision of Act of Congress declaring that no
person shall be deprived of his property without due process of law has not been
infringed.
In the progress of this discussion we have stated the two conclusions; (1) that the
failure of the clerk to send the notice to the defendant by mail did not destroy the
jurisdiction of the court and (2) that such irregularity did not infringe the
requirement of due process of law. As a consequence of these conclusions the
irregularity in question is in some measure shorn of its potency. It is still necessary,
however, to consider its effect considered as a simple irregularity of procedure; and
it would be idle to pretend that even in this aspect the irregularity is not grave
enough. From this point of view, however, it is obvious that any motion to vacate the
judgment on the ground of the irregularity in question must fail unless it shows that
the defendant was prejudiced by that irregularity. The least, therefore, that can be
required of the proponent of such a motion is to show that he had a good defense
against the action to foreclose the mortgage. Nothing of the kind is, however, shown
either in the motion or in the affidavit which accompanies the motion.
An application to open or vacate a judgment because of an irregularity or defect in
the proceedings is usually required to be supported by an affidavit showing the
grounds on which the relief is sought, and in addition to this showing also a
meritorious defense to the action. It is held that a general statement that a party
has a good defense to the action is insufficient. The necessary facts must be
averred. Of course if a judgment is void upon its face a showing of the existence of a
meritorious defense is not necessary. (10 R. C. L., 718.)
The lapse of time is also a circumstance deeply affecting this aspect of the case. In
this connection we quote the following passage from the encyclopedic treatise now
in course of publication:
Where, however, the judgment is not void on its face, and may therefore be
enforced if permitted to stand on the record, courts in many instances refuse to
exercise their quasi equitable powers to vacate a judgement after the lapse of the
term ay which it was entered, except in clear cases, to promote the ends of justice,
and where it appears that the party making the application is himself without fault
and has acted in good faith and with ordinary diligence. Laches on the part of the
applicant, if unexplained, is deemed sufficient ground for refusing the relief to which
he might otherwise be entitled. Something is due to the finality of judgments, and
acquiescence or unnecessary delay is fatal to motions of this character, since courts
are always reluctant to interfere with judgments, and especially where they have
been executed or satisfied. The moving party has the burden of showing diligence,
and unless it is shown affirmatively the court will not ordinarily exercise its discretion
in his favor. (15 R. C. L., 694, 695.)
It is stated in the affidavit that the defendant, Engracio Palanca Tanquinyeng y
Limquingco, died January 29, 1910. The mortgage under which the property was
sold was executed far back in 1906; and the proceedings in the foreclosure were
closed by the order of court confirming the sale dated August 7, 1908. It passes the
rational bounds of human credulity to suppose that a man who had placed a
mortgage upon property worth nearly P300,000 and had then gone away from the
scene of his life activities to end his days in the city of Amoy, China, should have
long remained in ignorance of the fact that the mortgage had been foreclosed and
the property sold, even supposing that he had no knowledge of those proceedings
while they were being conducted. It is more in keeping with the ordinary course of
things that he should have acquired information as to what was transpiring in his
affairs at Manila; and upon the basis of this rational assumption we are authorized,
in the absence of proof to the contrary, to presume that he did have, or soon
acquired, information as to the sale of his property.
The Code of Civil Procedure, indeed, expressly declares that there is a presumption
that things have happened according to the ordinary habits of life (sec. 334 [26]);
and we cannot conceive of a situation more appropriate than this for applying the
presumption thus defined by the lawgiver. In support of this presumption, as applied
to the present case, it is permissible to consider the probability that the defendant
may have received actual notice of these proceedings from the unofficial notice
addressed to him in Manila which was mailed by an employee of the bank's
attorneys. Adopting almost the exact words used by the Supreme Court of the
United States in Grannis vs. Ordeans (234 U. S., 385; 58 L. ed., 1363), we may say
that in view of the well-known skill of postal officials and employees in making
proper delivery of letters defectively addressed, we think the presumption is clear
and strong that this notice reached the defendant, there being no proof that it was
ever returned by the postal officials as undelivered. And if it was delivered in Manila,
instead of being forwarded to Amoy, China, there is a probability that the recipient
was a person sufficiently interested in his affairs to send it or communicate its
contents to him.
Of course if the jurisdiction of the court or the sufficiency of the process of law
depended upon the mailing of the notice by the clerk, the reflections in which we are
now indulging would be idle and frivolous; but the considerations mentioned are
introduced in order to show the propriety of applying to this situation the legal
presumption to which allusion has been made. Upon that presumption, supported by
the circumstances of this case, ,we do not hesitate to found the conclusion that the
defendant voluntarily abandoned all thought of saving his property from the
obligation which he had placed upon it; that knowledge of the proceedings should be
imputed to him; and that he acquiesced in the consequences of those proceedings
after they had been accomplished. Under these circumstances it is clear that the
merit of this motion is, as we have already stated, adversely affected in a high
degree by the delay in asking for relief. Nor is it an adequate reply to say that the
proponent of this motion is an administrator who only qualified a few months before
this motion was made. No disability on the part of the defendant himself existed
from the time when the foreclosure was effected until his death; and we believe that
the delay in the appointment of the administrator and institution of this action is a
circumstance which is imputable to the parties in interest whoever they may have
been. Of course if the minor heirs had instituted an action in their own right to
recover the property, it would have been different.
It is, however, argued that the defendant has suffered prejudice by reason of the
fact that the bank became the purchaser of the property at the foreclosure sale for a
price greatly below that which had been agreed upon in the mortgage as the upset
price of the property. In this connection, it appears that in article nine of the
mortgage which was the subject of this foreclosure, as amended by the notarial
document of July 19, 1906, the parties to this mortgage made a stipulation to the
effect that the value therein placed upon the mortgaged properties should serve as
a basis of sale in case the debt should remain unpaid and the bank should proceed
to a foreclosure. The upset price stated in that stipulation for all the parcels involved
in this foreclosure was P286,000. It is said in behalf of the appellant that when the
bank bought in the property for the sum of P110,200 it violated that stipulation.
It has been held by this court that a clause in a mortgage providing for a tipo, or
upset price, does not prevent a foreclosure, nor affect the validity of a sale made in
the foreclosure proceedings. (Yangco vs. Cruz Herrera and Wy Piaco, 11 Phil. Rep.,
402; Banco-Espaol Filipino vs. Donaldson, Sim and Co., 5 Phil. Rep., 418.) In both
the cases here cited the property was purchased at the foreclosure sale, not by the
creditor or mortgagee, but by a third party. Whether the same rule should be applied
in a case where the mortgagee himself becomes the purchaser has apparently not
been decided by this court in any reported decision, and this question need not here
be considered, since it is evident that if any liability was incurred by the bank by
purchasing for a price below that fixed in the stipulation, its liability was a personal
liability derived from the contract of mortgage; and as we have already
demonstrated such a liability could not be the subject of adjudication in an action
where the court had no jurisdiction over the person of the defendant. If the plaintiff
bank became liable to account for the difference between the upset price and the
price at which in bought in the property, that liability remains unaffected by the
disposition which the court made of this case; and the fact that the bank may have
violated such an obligation can in no wise affect the validity of the judgment entered
in the Court of First Instance.
In connection with the entire failure of the motion to show either a meritorious
defense to the action or that the defendant had suffered any prejudice of which the
law can take notice, we may be permitted to add that in our opinion a motion of this
kind, which proposes to unsettle judicial proceedings long ago closed, can not be
considered with favor, unless based upon grounds which appeal to the conscience of
the court. Public policy requires that judicial proceedings be upheld. The maximum
here applicable is non quieta movere. As was once said by Judge Brewer, afterwards
a member of the Supreme Court of the United States:
Public policy requires that judicial proceedings be upheld, and that titles obtained in
those proceedings be safe from the ruthless hand of collateral attack. If technical
defects are adjudged potent to destroy such titles, a judicial sale will never realize
that value of the property, for no prudent man will risk his money in bidding for and
buying that title which he has reason to fear may years thereafter be swept away
through some occult and not readily discoverable defect. (Martin vs. Pond, 30 Fed.,
15.)
In the case where that language was used an attempt was made to annul certain
foreclosure proceedings on the ground that the affidavit upon which the order of
publication was based erroneously stated that the State of Kansas, when he was in
fact residing in another State. It was held that this mistake did not affect the validity
of the proceedings.
In the preceding discussion we have assumed that the clerk failed to send the notice
by post as required by the order of the court. We now proceed to consider whether
this is a proper assumption; and the proposition which we propose to establish is
that there is a legal presumption that the clerk performed his duty as the ministerial
officer of the court, which presumption is not overcome by any other facts appearing
in the cause.
In subsection 14 of section 334 of the Code of Civil Procedure it is declared that
there is a presumption "that official duty has been regularly performed;" and in
subsection 18 it is declared that there is a presumption "that the ordinary course of
business has been followed." These presumptions are of course in no sense
novelties, as they express ideas which have always been recognized. Omnia
presumuntur rite et solemniter esse acta donec probetur in contrarium. There is
therefore clearly a legal presumption that the clerk performed his duty about mailing
this notice; and we think that strong considerations of policy require that this
presumption should be allowed to operate with full force under the circumstances of
this case. A party to an action has no control over the clerk of the court; and has no
right to meddle unduly with the business of the clerk in the performance of his
duties. Having no control over this officer, the litigant must depend upon the court
to see that the duties imposed on the clerk are performed.
Other considerations no less potent contribute to strengthen the conclusion just
stated. There is no principle of law better settled than that after jurisdiction has once
been required, every act of a court of general jurisdiction shall be presumed to have
been rightly done. This rule is applied to every judgment or decree rendered in the
various stages of the proceedings from their initiation to their completion (Voorhees
vs. United States Bank, 10 Pet., 314; 35 U. S., 449); and if the record is silent with
respect to any fact which must have been established before the court could have
rightly acted, it will be presumed that such fact was properly brought to its
knowledge. (The Lessee of Grignon vs. Astor, 2 How., 319; 11 L. ed., 283.)
In making the order of sale [of the real state of a decedent] the court are presumed
to have adjudged every question necessary to justify such order or decree, viz: The
death of the owners; that the petitioners were his administrators; that the personal
estate was insufficient to pay the debts of the deceased; that the private acts of
Assembly, as to the manner of sale, were within the constitutional power of the
Legislature, and that all the provisions of the law as to notices which are directory to
the administrators have been complied with. . . . The court is not bound to enter
upon the record the evidence on which any fact was decided. (Florentine vs. Barton,
2 Wall., 210; 17 L. ed., 785.) Especially does all this apply after long lapse of time.
Applegate vs. Lexington and Carter County Mining Co. (117 U. S., 255) contains an
instructive discussion in a case analogous to that which is now before us. It there
appeared that in order to foreclose a mortgage in the State of Kentucky against a
nonresident debtor it was necessary that publication should be made in a newspaper
for a specified period of time, also be posted at the front door of the court house and
be published on some Sunday, immediately after divine service, in such church as
the court should direct. In a certain action judgment had been entered against a
nonresident, after publication in pursuance of these provisions. Many years later the
validity of the proceedings was called in question in another action. It was proved
from the files of an ancient periodical that publication had been made in its columns
as required by law; but no proof was offered to show the publication of the order at
the church, or the posting of it at the front door of the court-house. It was insisted by
one of the parties that the judgment of the court was void for lack of jurisdiction. But
the Supreme Court of the United States said:
The court which made the decree . . . was a court of general jurisdiction. Therefore
every presumption not inconsistent with the record is to be indulged in favor of its
jurisdiction. . . . It is to be presumed that the court before making its decree took
care of to see that its order for constructive service, on which its right to make the
decree depended, had been obeyed.
It is true that in this case the former judgment was the subject of collateral , or
indirect attack, while in the case at bar the motion to vacate the judgment is direct
proceeding for relief against it. The same general presumption, however, is indulged
in favor of the judgment of a court of general jurisdiction, whether it is the subject of
direct or indirect attack the only difference being that in case of indirect attack the
judgment is conclusively presumed to be valid unless the record affirmatively shows
it to be void, while in case of direct attack the presumption in favor of its validity
may in certain cases be overcome by proof extrinsic to the record.
The presumption that the clerk performed his duty and that the court made its
decree with the knowledge that the requirements of law had been complied with
appear to be amply sufficient to support the conclusion that the notice was sent by
the clerk as required by the order. It is true that there ought to be found among the
papers on file in this cause an affidavit, as required by section 400 of the Code of
Civil Procedure, showing that the order was in fact so sent by the clerk; and no such
affidavit appears. The record is therefore silent where it ought to speak. But the very
purpose of the law in recognizing these presumptions is to enable the court to
sustain a prior judgment in the face of such an omission. If we were to hold that the
judgment in this case is void because the proper affidavit is not present in the file of
papers which we call the record, the result would be that in the future every title in
the Islands resting upon a judgment like that now before us would depend, for its
continued security, upon the presence of such affidavit among the papers and would
be liable at any moment to be destroyed by the disappearance of that piece of
paper. We think that no court, with a proper regard for the security of judicial
proceedings and for the interests which have by law been confided to the courts,
would incline to favor such a conclusion. In our opinion the proper course in a case
of this kind is to hold that the legal presumption that the clerk performed his duty
still maintains notwithstanding the absence from the record of the proper proof of
that fact.
In this connection it is important to bear in mind that under the practice prevailing in
the Philippine Islands the word "record" is used in a loose and broad sense, as
indicating the collective mass of papers which contain the history of all the
successive steps taken in a case and which are finally deposited in the archives of
the clerk's office as a memorial of the litigation. It is a matter of general information
that no judgment roll, or book of final record, is commonly kept in our courts for the
purpose of recording the pleadings and principal proceedings in actions which have
been terminated; and in particular, no such record is kept in the Court of First
Instance of the city of Manila. There is, indeed, a section of the Code of Civil
Procedure which directs that such a book of final record shall be kept; but this
provision has, as a matter of common knowledge, been generally ignored. The result
is that in the present case we do not have the assistance of the recitals of such a
record to enable us to pass upon the validity of this judgment and as already stated
the question must be determined by examining the papers contained in the entire
file.
But it is insisted by counsel for this motion that the affidavit of Bernardo Chan y
Garcia showing that upon April 4, 1908, he sent a notification through the mail
addressed to the defendant at Manila, Philippine Islands, should be accepted as
affirmative proof that the clerk of the court failed in his duty and that, instead of
himself sending the requisite notice through the mail, he relied upon Bernardo to
send it for him. We do not think that this is by any means a necessary inference. Of
course if it had affirmatively appeared that the clerk himself had attempted to
comply with this order and had directed the notification to Manila when he should
have directed it to Amoy, this would be conclusive that he had failed to comply with
the exact terms of the order; but such is not this case. That the clerk of the
attorneys for the plaintiff erroneously sent a notification to the defendant at a
mistaken address affords in our opinion very slight basis for supposing that the clerk
may not have sent notice to the right address.
There is undoubtedly good authority to support the position that when the record
states the evidence or makes an averment with reference to a jurisdictional fact, it
will not be presumed that there was other or different evidence respecting the fact,
or that the fact was otherwise than stated. If, to give an illustration, it appears from
the return of the officer that the summons was served at a particular place or in a
particular manner, it will not be presumed that service was also made at another
place or in a different manner; or if it appears that service was made upon a person
other than the defendant, it will not be presumed, in the silence of the record, that it
was made upon the defendant also (Galpin vs. Page, 18 Wall., 350, 366; Settlemier
vs. Sullivan, 97 U. S., 444, 449). While we believe that these propositions are
entirely correct as applied to the case where the person making the return is the
officer who is by law required to make the return, we do not think that it is properly
applicable where, as in the present case, the affidavit was made by a person who, so
far as the provisions of law are concerned, was a mere intermeddler.
The last question of importance which we propose to consider is whether a motion in
the cause is admissible as a proceeding to obtain relief in such a case as this. If the
motion prevails the judgment of July 2, 1908, and all subsequent proceedings will be
set aside, and the litigation will be renewed, proceeding again from the date
mentioned as if the progress of the action had not been interrupted. The proponent
of the motion does not ask the favor of being permitted to interpose a defense. His
purpose is merely to annul the effective judgment of the court, to the end that the
litigation may again resume its regular course.
There is only one section of the Code of Civil Procedure which expressly recognizes
the authority of a Court of First Instance to set aside a final judgment and permit a
renewal of the litigation in the same cause. This is as follows:
SEC. 113. Upon such terms as may be just the court may relieve a party or
legal representative from the judgment, order, or other proceeding taken against
him through his mistake, inadvertence, surprise, or excusable neglect; Provided,
That application thereof be made within a reasonable time, but in no case exceeding
six months after such judgment, order, or proceeding was taken.
An additional remedy by petition to the Supreme Court is supplied by section 513 of
the same Code. The first paragraph of this section, in so far as pertinent to this
discussion, provides as follows:
When a judgment is rendered by a Court of First Instance upon default, and a party
thereto is unjustly deprived of a hearing by fraud, accident, mistake or excusable
negligence, and the Court of First Instance which rendered the judgment has finally
adjourned so that no adequate remedy exists in that court, the party so deprived of
a hearing may present his petition to the Supreme Court within sixty days after he
first learns of the rendition of such judgment, and not thereafter, setting forth the
facts and praying to have judgment set aside. . . .
It is evident that the proceeding contemplated in this section is intended to
supplement the remedy provided by section 113; and we believe the conclusion
irresistible that there is no other means recognized by law whereby a defeated party
can, by a proceeding in the same cause, procure a judgment to be set aside, with a
view to the renewal of the litigation.
The Code of Civil Procedure purports to be a complete system of practice in civil
causes, and it contains provisions describing with much fullness the various steps to
be taken in the conduct of such proceedings. To this end it defines with precision the
method of beginning, conducting, and concluding the civil action of whatever
species; and by section 795 of the same Code it is declared that the procedure in all
civil action shall be in accordance with the provisions of this Code. We are therefore
of the opinion that the remedies prescribed in sections 113 and 513 are exclusive of
all others, so far as relates to the opening and continuation of a litigation which has
been once concluded.
The motion in the present case does not conform to the requirements of either of
these provisions; and the consequence is that in our opinion the action of the Court
of First Instance in dismissing the motion was proper.
If the question were admittedly one relating merely to an irregularity of procedure,
we cannot suppose that this proceeding would have taken the form of a motion in
the cause, since it is clear that, if based on such an error, the came to late for relief
in the Court of First Instance. But as we have already seen, the motion attacks the
judgment of the court as void for want of jurisdiction over the defendant. The idea
underlying the motion therefore is that inasmuch as the judgment is a nullity it can
be attacked in any way and at any time. If the judgment were in fact void upon its
face, that is, if it were shown to be a nullity by virtue of its own recitals, there might
possibly be something in this. Where a judgment or judicial order is void in this
sense it may be said to be a lawless thing, which can be treated as an outlaw and
slain at sight, or ignored wherever and whenever it exhibits its head.
But the judgment in question is not void in any such sense. It is entirely regular in
form, and the alleged defect is one which is not apparent upon its face. It follows
that even if the judgment could be shown to be void for want of jurisdiction, or for
lack of due process of law, the party aggrieved thereby is bound to resort to some
appropriate proceeding to obtain relief. Under accepted principles of law and
practice, long recognized in American courts, a proper remedy in such case, after
the time for appeal or review has passed, is for the aggrieved party to bring an
action to enjoin the judgment, if not already carried into effect; or if the property has
already been disposed of he may institute suit to recover it. In every situation of this
character an appropriate remedy is at hand; and if property has been taken without
due process, the law concedes due process to recover it. We accordingly old that,
assuming the judgment to have been void as alleged by the proponent of this
motion, the proper remedy was by an original proceeding and not by motion in the
cause. As we have already seen our Code of Civil Procedure defines the conditions
under which relief against a judgment may be productive of conclusion for this court
to recognize such a proceeding as proper under conditions different from those
defined by law. Upon the point of procedure here involved, we refer to the case of
People vs. Harrison (84 Cal., 607) wherein it was held that a motion will not lie to
vacate a judgment after the lapse of the time limited by statute if the judgment is
not void on its face; and in all cases, after the lapse of the time limited by statute if
the judgment is not void on its face; and all cases, after the lapse of such time, when
an attempt is made to vacate the judgment by a proceeding in court for that
purpose an action regularly brought is preferable, and should be required. It will be
noted taken verbatim from the California Code (sec. 473).
The conclusions stated in this opinion indicate that the judgment appealed from is
without error, and the same is accordingly affirmed, with costs. So ordered.
G.R. No. L-46496 February 27, 1940
ANG TIBAY, represented by TORIBIO TEODORO, manager and propietor, and
NATIONAL WORKERS BROTHERHOOD, petitioners,
vs.THE COURT OF INDUSTRIAL RELATIONS and NATIONAL LABOR UNION, INC.,
respondents.
Office of the Solicitor-General Ozaeta and Assistant Attorney Barcelona for the Court
of Industrial Relations.
Antonio D. Paguia for National Labor Unon.
Claro M. Recto for petitioner "Ang Tibay".
Jose M. Casal for National Workers' Brotherhood.
LAUREL, J.:
The Solicitor-General in behalf of the respondent Court of Industrial Relations in the
above-entitled case has filed a motion for reconsideration and moves that, for the
reasons stated in his motion, we reconsider the following legal conclusions of the
majority opinion of this Court:
1. Que un contrato de trabajo, asi individual como colectivo, sin termino fijo de
duracion o que no sea para una determinada, termina o bien por voluntad de
cualquiera de las partes o cada vez que ilega el plazo fijado para el pago de los
salarios segun costumbre en la localidad o cunado se termine la obra;
2. Que los obreros de una empresa fabril, que han celebrado contrato, ya individual
ya colectivamente, con ell, sin tiempo fijo, y que se han visto obligados a cesar en
sus tarbajos por haberse declarando paro forzoso en la fabrica en la cual tarbajan,
dejan de ser empleados u obreros de la misma;
3. Que un patrono o sociedad que ha celebrado un contrato colectivo de trabajo con
sus osbreros sin tiempo fijo de duracion y sin ser para una obra determiminada y
que se niega a readmitir a dichos obreros que cesaron como consecuencia de un
paro forzoso, no es culpable de practica injusta in incurre en la sancion penal del
articulo 5 de la Ley No. 213 del Commonwealth, aunque su negativa a readmitir se
deba a que dichos obreros pertenecen a un determinado organismo obrero, puesto
que tales ya han dejado deser empleados suyos por terminacion del contrato en
virtud del paro.
The respondent National Labor Union, Inc., on the other hand, prays for the vacation
of the judgement rendered by the majority of this Court and the remanding of the
case to the Court of Industrial Relations for a new trial, and avers:
1. That Toribio Teodoro's claim that on September 26, 1938, there was shortage of
leather soles in ANG TIBAY making it necessary for him to temporarily lay off the
members of the National Labor Union Inc., is entirely false and unsupported by the
records of the Bureau of Customs and the Books of Accounts of native dealers in
leather.
2. That the supposed lack of leather materials claimed by Toribio Teodoro was but a
scheme to systematically prevent the forfeiture of this bond despite the breach of
his CONTRACT with the Philippine Army.
3. That Toribio Teodoro's letter to the Philippine Army dated September 29, 1938, (re
supposed delay of leather soles from the States) was but a scheme to systematically
prevent the forfeiture of this bond despite the breach of his CONTRACT with the
Philippine Army.
4. That the National Worker's Brotherhood of ANG TIBAY is a company or employer
union dominated by Toribio Teodoro, the existence and functions of which are illegal.
(281 U.S., 548, petitioner's printed memorandum, p. 25.)
5. That in the exercise by the laborers of their rights to collective bargaining,
majority rule and elective representation are highly essential and indispensable.
(Sections 2 and 5, Commonwealth Act No. 213.)
6. That the century provisions of the Civil Code which had been (the) principal
source of dissensions and continuous civil war in Spain cannot and should not be
made applicable in interpreting and applying the salutary provisions of a modern
labor legislation of American origin where the industrial peace has always been the
rule.
7. That the employer Toribio Teodoro was guilty of unfair labor practice for
discriminating against the National Labor Union, Inc., and unjustly favoring the
National Workers' Brotherhood.
8. That the exhibits hereto attached are so inaccessible to the respondents that
even with the exercise of due diligence they could not be expected to have obtained
them and offered as evidence in the Court of Industrial Relations.
9. That the attached documents and exhibits are of such far-reaching importance
and effect that their admission would necessarily mean the modification and
reversal of the judgment rendered herein.
The petitioner, Ang Tibay, has filed an opposition both to the motion for
reconsideration of the respondent National Labor Union, Inc.
In view of the conclusion reached by us and to be herein after stead with reference
to the motion for a new trial of the respondent National Labor Union, Inc., we are of
the opinion that it is not necessary to pass upon the motion for reconsideration of
the Solicitor-General. We shall proceed to dispose of the motion for new trial of the
respondent labor union. Before doing this, however, we deem it necessary, in the
interest of orderly procedure in cases of this nature, in interest of orderly procedure
in cases of this nature, to make several observations regarding the nature of the
powers of the Court of Industrial Relations and emphasize certain guiding principles
which should be observed in the trial of cases brought before it. We have re-
examined the entire record of the proceedings had before the Court of Industrial
Relations in this case, and we have found no substantial evidence that the exclusion
of the 89 laborers here was due to their union affiliation or activity. The whole
transcript taken contains what transpired during the hearing and is more of a record
of contradictory and conflicting statements of opposing counsel, with sporadic
conclusion drawn to suit their own views. It is evident that these statements and
expressions of views of counsel have no evidentiary value.
The Court of Industrial Relations is a special court whose functions are specifically
stated in the law of its creation (Commonwealth Act No. 103). It is more an
administrative than a part of the integrated judicial system of the nation. It is not
intended to be a mere receptive organ of the Government. Unlike a court of justice
which is essentially passive, acting only when its jurisdiction is invoked and deciding
only cases that are presented to it by the parties litigant, the function of the Court of
Industrial Relations, as will appear from perusal of its organic law, is more active,
affirmative and dynamic. It not only exercises judicial or quasi-judicial functions in
the determination of disputes between employers and employees but its functions in
the determination of disputes between employers and employees but its functions
are far more comprehensive and expensive. It has jurisdiction over the entire
Philippines, to consider, investigate, decide, and settle any question, matter
controversy or dispute arising between, and/or affecting employers and employees
or laborers, and regulate the relations between them, subject to, and in accordance
with, the provisions of Commonwealth Act No. 103 (section 1). It shall take
cognizance or purposes of prevention, arbitration, decision and settlement, of any
industrial or agricultural dispute causing or likely to cause a strike or lockout, arising
from differences as regards wages, shares or compensation, hours of labor or
conditions of tenancy or employment, between landlords and tenants or farm-
laborers, provided that the number of employees, laborers or tenants of farm-
laborers involved exceeds thirty, and such industrial or agricultural dispute is
submitted to the Court by the Secretary of Labor or by any or both of the parties to
the controversy and certified by the Secretary of labor as existing and proper to be
by the Secretary of Labor as existing and proper to be dealth with by the Court for
the sake of public interest. (Section 4, ibid.) It shall, before hearing the dispute and
in the course of such hearing, endeavor to reconcile the parties and induce them to
settle the dispute by amicable agreement. (Paragraph 2, section 4, ibid.) When
directed by the President of the Philippines, it shall investigate and study all
industries established in a designated locality, with a view to determinating the
necessity and fairness of fixing and adopting for such industry or locality a minimum
wage or share of laborers or tenants, or a maximum "canon" or rental to be paid by
the "inquilinos" or tenants or less to landowners. (Section 5, ibid.) In fine, it may
appeal to voluntary arbitration in the settlement of industrial disputes; may employ
mediation or conciliation for that purpose, or recur to the more effective system of
official investigation and compulsory arbitration in order to determine specific
controversies between labor and capital industry and in agriculture. There is in
reality here a mingling of executive and judicial functions, which is a departure from
the rigid doctrine of the separation of governmental powers.
In the case of Goseco vs. Court of Industrial Relations et al., G.R. No. 46673,
promulgated September 13, 1939, we had occasion to joint out that the Court of
Industrial Relations et al., G. R. No. 46673, promulgated September 13, 1939, we
had occasion to point out that the Court of Industrial Relations is not narrowly
constrained by technical rules of procedure, and the Act requires it to "act according
to justice and equity and substantial merits of the case, without regard to
technicalities or legal forms and shall not be bound by any technicalities or legal
forms and shall not be bound by any technical rules of legal evidence but may
inform its mind in such manner as it may deem just and equitable." (Section 20,
Commonwealth Act No. 103.) It shall not be restricted to the specific relief claimed
or demands made by the parties to the industrial or agricultural dispute, but may
include in the award, order or decision any matter or determination which may be
deemed necessary or expedient for the purpose of settling the dispute or of
preventing further industrial or agricultural disputes. (section 13, ibid.) And in the
light of this legislative policy, appeals to this Court have been especially regulated
by the rules recently promulgated by the rules recently promulgated by this Court to
carry into the effect the avowed legislative purpose. The fact, however, that the
Court of Industrial Relations may be said to be free from the rigidity of certain
procedural requirements does not mean that it can, in justifiable cases before it,
entirely ignore or disregard the fundamental and essential requirements of due
process in trials and investigations of an administrative character. There are primary
rights which must be respected even in proceedings of this character:
(1) The first of these rights is the right to a hearing, which includes the right of the
party interested or affected to present his own case and submit evidence in support
thereof. In the language of Chief Hughes, in Morgan v. U.S., 304 U.S. 1, 58 S. Ct. 773,
999, 82 Law. ed. 1129, "the liberty and property of the citizen shall be protected by
the rudimentary requirements of fair play.
(2) Not only must the party be given an opportunity to present his case and to
adduce evidence tending to establish the rights which he asserts but the tribunal
must consider the evidence presented. (Chief Justice Hughes in Morgan v. U.S. 298
U.S. 468, 56 S. Ct. 906, 80 law. ed. 1288.) In the language of this court in Edwards
vs. McCoy, 22 Phil., 598, "the right to adduce evidence, without the corresponding
duty on the part of the board to consider it, is vain. Such right is conspicuously futile
if the person or persons to whom the evidence is presented can thrust it aside
without notice or consideration."
(3) "While the duty to deliberate does not impose the obligation to decide right, it
does imply a necessity which cannot be disregarded, namely, that of having
something to support it is a nullity, a place when directly attached." (Edwards vs.
McCoy, supra.) This principle emanates from the more fundamental is contrary to
the vesting of unlimited power anywhere. Law is both a grant and a limitation upon
power.
(4) Not only must there be some evidence to support a finding or conclusion (City of
Manila vs. Agustin, G.R. No. 45844, promulgated November 29, 1937, XXXVI O. G.
1335), but the evidence must be "substantial." (Washington, Virginia and Maryland
Coach Co. v. national labor Relations Board, 301 U.S. 142, 147, 57 S. Ct. 648, 650,
81 Law. ed. 965.) It means such relevant evidence as a reasonable mind accept as
adequate to support a conclusion." (Appalachian Electric Power v. National Labor
Relations Board, 4 Cir., 93 F. 2d 985, 989; National Labor Relations Board v.
Thompson Products, 6 Cir., 97 F. 2d 13, 15; Ballston-Stillwater Knitting Co. v. National
Labor Relations Board, 2 Cir., 98 F. 2d 758, 760.) . . . The statute provides that "the
rules of evidence prevailing in courts of law and equity shall not be controlling.' The
obvious purpose of this and similar provisions is to free administrative boards from
the compulsion of technical rules so that the mere admission of matter which would
be deemed incompetent inn judicial proceedings would not invalidate the
administrative order. (Interstate Commerce Commission v. Baird, 194 U.S. 25, 44, 24
S. Ct. 563, 568, 48 Law. ed. 860; Interstate Commerce Commission v. Louisville and
Nashville R. Co., 227 U.S. 88, 93 33 S. Ct. 185, 187, 57 Law. ed. 431; United States v.
Abilene and Southern Ry. Co. S. Ct. 220, 225, 74 Law. ed. 624.) But this assurance of
a desirable flexibility in administrative procedure does not go far as to justify orders
without a basis in evidence having rational probative force. Mere uncorroborated
hearsay or rumor does not constitute substantial evidence. (Consolidated Edison Co.
v. National Labor Relations Board, 59 S. Ct. 206, 83 Law. ed. No. 4, Adv. Op., p.
131.)"
(5) The decision must be rendered on the evidence presented at the hearing, or at
least contained in the record and disclosed to the parties affected. (Interstate
Commence Commission vs. L. & N. R. Co., 227 U.S. 88, 33 S. Ct. 185, 57 Law. ed.
431.) Only by confining the administrative tribunal to the evidence disclosed to the
parties, can the latter be protected in their right to know and meet the case against
them. It should not, however, detract from their duty actively to see that the law is
enforced, and for that purpose, to use the authorized legal methods of securing
evidence and informing itself of facts material and relevant to the controversy.
Boards of inquiry may be appointed for the purpose of investigating and determining
the facts in any given case, but their report and decision are only advisory. (Section
9, Commonwealth Act No. 103.) The Court of Industrial Relations may refer any
industrial or agricultural dispute or any matter under its consideration or advisement
to a local board of inquiry, a provincial fiscal. a justice of the peace or any public
official in any part of the Philippines for investigation, report and recommendation,
and may delegate to such board or public official such powers and functions as the
said Court of Industrial Relations may deem necessary, but such delegation shall not
affect the exercise of the Court itself of any of its powers. (Section 10, ibid.)
(6) The Court of Industrial Relations or any of its judges, therefore, must act on its or
his own independent consideration of the law and facts of the controversy, and not
simply accept the views of a subordinate in arriving at a decision. It may be that the
volume of work is such that it is literally Relations personally to decide all
controversies coming before them. In the United States the difficulty is solved with
the enactment of statutory authority authorizing examiners or other subordinates to
render final decision, with the right to appeal to board or commission, but in our
case there is no such statutory authority.
(7) The Court of Industrial Relations should, in all controversial questions, render its
decision in such a manner that the parties to the proceeding can know the various
issues involved, and the reasons for the decision rendered. The performance of this
duty is inseparable from the authority conferred upon it.
In the right of the foregoing fundamental principles, it is sufficient to observe here
that, except as to the alleged agreement between the Ang Tibay and the National
Worker's Brotherhood (appendix A), the record is barren and does not satisfy the
thirst for a factual basis upon which to predicate, in a national way, a conclusion of
law.

This result, however, does not now preclude the concession of a new trial prayed for
the by respondent National Labor Union, Inc., it is alleged that "the supposed lack of
material claimed by Toribio Teodoro was but a scheme adopted to systematically
discharged all the members of the National Labor Union Inc., from work" and this
avernment is desired to be proved by the petitioner with the "records of the Bureau
of Customs and the Books of Accounts of native dealers in leather"; that "the
National Workers Brotherhood Union of Ang Tibay is a company or employer union
dominated by Toribio Teodoro, the existence and functions of which are illegal."
Petitioner further alleges under oath that the exhibits attached to the petition to
prove his substantial avernments" are so inaccessible to the respondents that even
within the exercise of due diligence they could not be expected to have obtained
them and offered as evidence in the Court of Industrial Relations", and that the
documents attached to the petition "are of such far reaching importance and effect
that their admission would necessarily mean the modification and reversal of the
judgment rendered herein." We have considered the reply of Ang Tibay and its
arguments against the petition. By and large, after considerable discussions, we
have come to the conclusion that the interest of justice would be better served if the
movant is given opportunity to present at the hearing the documents referred to in
his motion and such other evidence as may be relevant to the main issue involved.
The legislation which created the Court of Industrial Relations and under which it
acts is new. The failure to grasp the fundamental issue involved is not entirely
attributable to the parties adversely affected by the result. Accordingly, the motion
for a new trial should be and the same is hereby granted, and the entire record of
this case shall be remanded to the Court of Industrial Relations, with instruction that
it reopen the case, receive all such evidence as may be relevant and otherwise
proceed in accordance with the requirements set forth hereinabove. So ordered.
Goldberg v. Kelly (No. 62)
Argued: October 13, 1969
Decided: March 23, 1970
Appellees are New York City residents receiving financial aid under the federally
assisted Aid to Families with Dependent Children program or under New York State's
general Home Relief program who allege that officials administering these programs
terminated, or were about to terminate, such aid without prior notice and hearing,
thereby denying them due process of law. The District Court held that only a pre-
termination evidentiary hearing would satisfy the constitutional command, and
rejected the argument of the welfare officials that the combination of the existing
post-termination "fair hearing" and informal pre-termination review was sufficient.
Held:
1. Welfare benefits are a matter of statutory entitlement for persons qualified to
receive them, and procedural due process is applicable to their termination. Pp. 261-
263.
2. The interest of the eligible recipient in the uninterrupted receipt of public
assistance, which provides him with essential food, clothing, housing, and medical
care, coupled with the State's interest that his payments not be erroneously
terminated, clearly outweighs the State's competing concern to prevent any
increase in its fiscal and administrative burdens. Pp. 264-266.
3. A pre-termination evidentiary hearing is necessary to provide the welfare
recipient with procedural due process. Pp. 264, 266-271.
(a) Such hearing need not take the form of a judicial or quasi-judicial trial, but the
recipient must be provided with timely and adequate notice detailing the reasons for
termination, and an effective opportunity to defend by confronting adverse
witnesses and by presenting his own arguments and evidence orally before the
decisionmaker. Pp. 266-270. [p255]
(b) Counsel need not be furnished at the pre-termination hearing, but the recipient
must be allowed to retain an attorney if he so desires. P. 270.
(c) The decisionmaker need not file a full opinion or make formal findings of fact or
conclusions of law, but should state the reason for his determination and indicate
the evidence he relied on. P. 271.
(d) The decisionmaker must be impartial, and, although prior involvement in some
aspects of a case will not necessarily bar a welfare official from acting as
decisionmaker, he should not have participated in making the determination under
review. P. 271.
BRENNAN, J., Opinion of the Court
MR. JUSTICE BRENNAN delivered the opinion of the Court.
The question for decision is whether a State that terminates public assistance
payments to a particular recipient without affording him the opportunity for an
evidentiary hearing prior to termination denies the recipient procedural due process
in violation of the Due Process Clause of the Fourteenth Amendment.
This action was brought in the District Court for the Southern District of New York by
residents of New [p256] York City receiving financial aid under the federally assisted
program of Aid to Families with Dependent Children (AFDC) or under New York
State's general Home Relief program. [n1] Their complaint alleged that the New York
State and New York City officials administering these programs terminated, or were
about to terminate, such aid without prior notice and hearing, thereby denying them
due process of law. [n2] At the time [p257] the suits were filed, there was no
requirement of prior notice or hearing of any kind before termination of financial aid.
However, the State and city adopted procedures for notice and hearing after the
suits were brought, and the plaintiffs, appellees here, then challenged the
constitutional adequacy of those procedures.
The State Commissioner of Social Services amended the State Department of Social
Services' Official Regulations to require that local social services officials proposing
to discontinue or suspend a recipient's financial aid do so according to a procedure
that conforms to either subdivision (a) or subdivision (b) of 351.26 of the
regulations as amended. [n3] The City of New York [p258] elected to promulgate a
local procedure according to subdivision (b). That subdivision, so far as here
pertinent, provides that the local procedure must include the giving of notice to the
recipient of the reasons for a proposed discontinuance or suspension at least seven
days prior to its effective date, with notice also that, upon request, the recipient may
have the proposal reviewed by a local welfare official holding a position superior to
that of the supervisor who approved the proposed discontinuance or suspension,
and, further, that the recipient may submit, for purposes of the review, a written
statement to demonstrate why his grant should not be discontinued or suspended.
The decision by the reviewing official whether to discontinue or suspend aid must be
made expeditiously, with written notice of the decision to the recipient. The section
further expressly provides that
[a]ssistance shall not be discontinued or suspended prior to the date such notice of
decision is sent to the recipient and his representative, if any, or prior to the
proposed effective date of discontinuance or suspension, whichever occurs later.
Pursuant to subdivision (b), the New York City Department of Social Services
promulgated Procedure No. 68-18. A caseworker who has doubts about the
recipient's continued eligibility must first discuss them with the recipient. If the
caseworker concludes that the recipient is no longer eligible, he recommends
termination [p259] of aid to a unit supervisor. If the latter concurs, he sends the
recipient a letter stating the reasons for proposing to terminate aid and notifying him
that, within seven days, he may request that a higher official review the record, and
may support the request with a written statement, prepared personally or with the
aid of an attorney or other person. If the reviewing official affirms the determination
of ineligibility, aid is stopped immediately and the recipient is informed by letter of
the reasons for the action. Appellees' challenge to this procedure emphasizes the
absence of any provisions for the personal appearance of the recipient before the
reviewing official, for oral presentation of evidence, and for confrontation and cross-
examination of adverse witnesses. [n4] However, the letter does inform the recipient
that he may request a post-termination "fair hearing." [n5] This is a proceeding
before an independent [p260] state hearing officer at which the recipient may
appear personally, offer oral evidence, confront and cross-examine the witnesses
against him, and have a record made of the hearing. If the recipient prevails at the
"fair hearing," he is paid all funds erroneously withheld. [n6] HEW Handbook, pt. IV,
6200-6500; 18 NYCRR 4.2-84.23. A recipient whose aid is not restored by a "fair
hearing" decision may have judicial review. N.Y.Civil Practice Law and Rules, Art. 78
(1963). The recipient is so notified, 18 NYCRR 84.16.
I
The constitutional issue to be decided, therefore, is the narrow one whether the Due
Process Clause requires that the recipient he afforded an evidentiary hearing before
the termination of benefits. [n7] The District Court held [p261] that only a pre-
termination evidentiary hearing would satisfy the constitutional command, and
rejected the argument of the state and city officials that the combination of the post-
termination "fair hearing" with the informal pre-termination review disposed of all
due process claims. The court said:
While post-termination review is relevant, there is one overpowering fact which
controls here. By hypothesis, a welfare recipient is destitute, without funds or assets.
. . . Suffice it to say that to cut off a welfare recipient in the face of . . . "brutal need"
without a prior hearing of some sort is unconscionable unless overwhelming
considerations justify it.
Kelly v. Wyman, 294 F.Supp. 893, 899, 900 (1968). The court rejected the argument
that the need to protect the public's tax revenues supplied the requisite
"overwhelming consideration."
Against the justified desire to protect public funds must be weighed the individual's
overpowering need in this unique situation not to be wrongfully deprived of
assistance. . . . While the problem of additional expense must be kept in mind, it
does not justify denying a hearing meeting the ordinary standards of due process.
Under all the circumstances, we hold that due process requires an adequate hearing
before termination of welfare benefits, and the fact that there is a later
constitutionally fair proceeding does not alter the result.
Id. at 901. Although state officials were party defendants in the action, only the
Commissioner of Social Services of the City of New York appealed. We noted
probable jurisdiction, 394 U.S. 971 (1969), to decide important issues that have
been the subject of disagreement in principle between the three-judge court in the
present case and that convened in Wheeler v. Montgomery, No. 14, post, p. 280,
also decided today. We affirm.
Appellant does not contend that procedural due process is not applicable to the
termination of welfare benefits. [p262] Such benefits are a matter of statutory
entitlement for persons qualified to receive them. [n8] Their termination involves
state action that adjudicates important rights. The constitutional challenge cannot
be answered by an argument that public assistance benefits are "a privilege,' and
not a 'right.'" Shapiro v. Thompson, 394 U.S. 618, 627 n. 6 (1969). Relevant
constitutional restraints apply as much to the withdrawal of public assistance
benefits as to disqualification for unemployment compensation, Sherbert v. Verner,
374 U.S. 398 (1963); or to denial of a tax exemption, Speiser v. Randall, 357 U.S.
513 (1958); or to discharge from public employment, Slochower v. Board of Higher
Education, 350 U.S. 551 (1956). [n9] The extent to which procedural due process
[p263] must be afforded the recipient is influenced by the extent to which he may
be "condemned to suffer grievous loss," Joint Anti-Fascist Refugee Committee v.
McGrath, 341 U.S. 123, 168 (1951) (Frankfurter, J., concurring), and depends upon
whether the recipient's interest in avoiding that loss outweighs the governmental
interest in summary adjudication. Accordingly, as we said in Cafeteria & Restaurant
Workers Union v. McElroy, 367 U.S. 886, 895 (1961),
consideration of what procedures due process may require under any given set of
circumstances must begin with a determination of the precise nature of the
government function involved, as well as of the private interest that has been
affected by governmental action.
See also Hannah v. Larche, 363 U.S. 420, 440, 442 (1960).
It is true, of course, that some governmental benefits may be administratively
terminated without affording the recipient a pre-termination evidentiary hearing.
[n10] [p264] But we agree with the District Court that, when welfare is discontinued,
only a pre-termination evidentiary hearing provides the recipient with procedural
due process. Cf. Sniadach v. Family Finance Corp., 395 U.S. 337 (1969). For qualified
recipients, welfare provides the means to obtain essential food, clothing, housing,
and medical care. [n11] Cf. Nash v. Florida Industrial Commission, 389 U.S. 235, 239
(1967). Thus, the crucial factor in this context -- a factor not present in the case of
the blacklisted government contractor, the discharged government employee, the
taxpayer denied a tax exemption, or virtually anyone else whose governmental
entitlements are ended -- is that termination of aid pending resolution of a
controversy over eligibility may deprive an eligible recipient of the very means by
which to live while he waits. Since he lacks independent resources, his situation
becomes immediately desperate. His need to concentrate upon finding the means
for daily subsistence, in turn, adversely affects his ability to seek redress from the
welfare bureaucracy. [n12]
Moreover, important governmental interests are promoted by affording recipients a
pre-termination evidentiary hearing. From its founding, the Nation's basic [p265]
commitment has been to foster the dignity and wellbeing of all persons within its
borders. We have come to recognize that forces not within the control of the poor
contribute to their poverty. [n13] This perception, against the background of our
traditions, has significantly influenced the development of the contemporary public
assistance system. Welfare, by meeting the basic demands of subsistence, can help
bring within the reach of the poor the same opportunities that are available to others
to participate meaningfully in the life of the community. At the same time, welfare
guards against the societal malaise that may flow from a widespread sense of
unjustified frustration and insecurity. Public assistance, then, is not mere charity, but
a means to "promote the general Welfare, and secure the Blessings of Liberty to
ourselves and our Posterity." The same governmental interests that counsel the
provision of welfare, counsel as well its uninterrupted provision to those eligible to
receive it; pre-termination evidentiary hearings are indispensable to that end.
Appellant does not challenge the force of these considerations but argues that they
are outweighed by countervailing governmental interests in conserving fiscal and
administrative resources. These interests, the argument goes, justify the delay of
any evidentiary hearing until after discontinuance of the grants. Summary
adjudication protects the public fisc by stopping payments promptly upon discovery
of reason to believe that a recipient is no longer eligible. Since most terminations
are accepted without challenge, summary adjudication also conserves both the fisc
and administrative time and energy by reducing the number of evidentiary hearings
actually held. [p266]
We agree with the District Court, however, that these governmental interests are not
overriding in the welfare context. The requirement of a prior hearing doubtless
involves some greater expense, and the benefits paid to ineligible recipients
pending decision at the hearing probably cannot he recouped, since these recipients
are likely to be judgment-proof. But the State is not without weapons to minimize
these increased costs. Much of the drain on fiscal and administrative resources can
be reduced by developing procedures for prompt pre-termination hearings and by
skillful use of personnel and facilities. Indeed, the very provision for a post-
termination evidentiary hearing in New York's Home Relief program is itself cogent
evidence that the State recognizes the primacy of the public interest in correct
eligibility determinations, and therefore in the provision of procedural safeguards.
Thus, the interest of the eligible recipient in uninterrupted receipt of public
assistance, coupled with the State's interest that his payments not be erroneously
terminated, clearly outweighs the State's competing concern to prevent any
increase in its fiscal and administrative burdens. As the District Court correctly
concluded,
[t]he stakes are simply too high for the welfare recipient, and the possibility for
honest error or irritable misjudgment too great, to allow termination of aid without
giving the recipient a chance, if he so desires, to be fully informed of the case
against him so that he may contest its basis and produce evidence in rebuttal. 294
F.Supp. at 904-905.
II
We also agree with the District Court, however, that the pre-termination hearing
need not take the form of a judicial or quasi-judicial trial. We bear in mind that the
statutory "fair hearing" will provide the recipient [p267] with a full administrative
review. [n14] Accordingly, the pre-termination hearing has one function only: to
produce an initial determination of the validity of the welfare department's grounds
for discontinuance of payments in order to protect a recipient against an erroneous
termination of his benefits. Cf. Sniadach v. Family Finance Corp., 395 U.S. 337, 343
(1969) (HARLAN, J., concurring). Thus, a complete record and a comprehensive
opinion, which would serve primarily to facilitate judicial review and to guide future
decisions, need not be provided at the pre-termination stage. We recognize, too,
that both welfare authorities and recipients have an interest in relatively speedy
resolution of questions of eligibility, that they are used to dealing with one another
informally, and that some welfare departments have very burdensome caseloads.
These considerations justify the limitation of the pre-termination hearing to
minimum procedural safeguards, adapted to the particular characteristics of welfare
recipients, and to the limited nature of the controversies to be resolved. We wish to
add that we, no less than the dissenters, recognize the importance of not imposing
upon the States or the Federal Government in this developing field of law any
procedural requirements beyond those demanded by rudimentary due process.
"The fundamental requisite of due process of law is the opportunity to be heard."
Grannis v. Ordean, 234 U.S. 385, 394 (1914). The hearing must be "at a meaningful
time and in a meaningful manner." Armstrong v. Manzo, 380 U.S. 545, 552 (1965). In
the present context, these principles require that a recipient have timely and
adequate notice detailing the reasons for a [p268] proposed termination, and an
effective opportunity to defend by confronting any adverse witnesses and by
presenting his own arguments and evidence orally. These rights are important in
cases such as those before us, where recipients have challenged proposed
terminations as resting on incorrect or misleading factual premises or on
misapplication of rules or policies to the facts of particular cases. [n15]
We are not prepared to say that the seven-day notice currently provided by New
York City is constitutionally insufficient per se, although there may be cases where
fairness would require that a longer time be given. Nor do we see any constitutional
deficiency in the content or form of the notice. New York employs both a letter and a
personal conference with a caseworker to inform a recipient of the precise questions
raised about his continued eligibility. Evidently the recipient is told the legal and
factual bases for the Department's doubts. This combination is probably the most
effective method of communicating with recipients.
The city's procedures presently do not permit recipients to appear personally, with
or without counsel, before the official who finally determines continued eligibility.
Thus, a recipient is not permitted to present evidence to that official orally, or to
confront or cross-examine adverse witnesses. These omissions are fatal to the
constitutional adequacy of the procedures.
The opportunity to be heard must be tailored to the [p269] capacities and
circumstances of those who are to be heard. [n16] It is not enough that a welfare
recipient may present his position to the decisionmaker in writing or second-hand
through his caseworker. Written submissions are an unrealistic option for most
recipients, who lack the educational attainment necessary to write effectively and
who cannot obtain professional assistance. Moreover, written submissions do not
afford the flexibility of oral presentations; they do not permit the recipient to mold
his argument to the issues the decisionmaker appears to regard as important.
Particularly where credibility and veracity are at issue, as they must be in many
termination proceedings, written submissions are a wholly unsatisfactory basis for
decision. The second-hand presentation to the decisionmaker by the caseworker has
its own deficiencies; since the caseworker usually gathers the facts upon which the
charge of ineligibility rests, the presentation of the recipient's side of the controversy
cannot safely be left to him. Therefore, a recipient must be allowed to state his
position orally. Informal procedures will suffice; in this context, due process does not
require a particular order of proof or mode of offering evidence. Cf. HEW Handbook,
pt. IV, 6400(a).
In almost every setting where important decisions turn on questions of fact, due
process requires an opportunity to confront and cross-examine adverse witnesses.
E.g., ICC v. Louisville & N. R. Co., 227 U.S. 88, 93-94 (1913); Willner v. Committee on
Character & Fitness, 373 U.S. 96, 103-104 (1963). What we said in [p270] Greene v.
McElroy, 360 U.S. 474, 496-497 (1959), is particularly pertinent here:
Certain principles have remained relatively immutable in our jurisprudence. One of
these is that, where governmental action seriously injures an individual, and the
reasonableness of the action depends on fact findings, the evidence used to prove
the Government's case must be disclosed to the individual so that he has an
opportunity to show that it is untrue. While this is important in the case of
documentary evidence, it is even more important where the evidence consists of the
testimony of individuals whose memory might be faulty or who, in fact, might be
perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or
jealousy. We have formalized these protections in the requirements of confrontation
and cross-examination. They have ancient roots. They find expression in the Sixth
Amendment. . . . This Court has been zealous to protect these rights from erosion. It
has spoken out not only in criminal cases, . . . but also in all types of cases where
administrative . . . actions were under scrutiny.
Welfare recipients must therefore be given an opportunity to confront and cross-
examine the witnesses relied on by the department.
"The right to be heard would be, in many cases, of little avail if it did not
comprehend the right to be heard by counsel." Powell v. Alabama, 287 U.S. 45, 669
(1932). We do not say that counsel must be provided at the pre-termination hearing,
but only that the recipient must be allowed to retain an attorney if he so desires.
Counsel can help delineate the issues, present the factual contentions in an orderly
manner, conduct cross-examination, and generally safeguard the [p271] interests of
the recipient. We do not anticipate that this assistance will unduly prolong or
otherwise encumber the hearing. Evidently, HEW has reached the same conclusion.
See 45 CFR 205.10, 34 Fed.Reg. 1144 (1969); 45 CFR 220.25, 34 Fed.Reg. 13595
(1969).
Finally, the decisionmaker's conclusion as to a recipient's eligibility must rest solely
on the legal rules and evidence adduced at the hearing. Ohio Bell Tel. Co. v. PUC,
301 U.S. 292 (1937); United States v. Abilene & S. R. Co., 265 U.S. 274, 288-289
(1924). To demonstrate compliance with this elementary requirement, the
decisionmaker should state the reasons for his determination and indicate the
evidence he relied on, cf. Wichita R. & Light Co. v. PUC, 260 U.S. 48, 57-59 (1922),
though his statement need not amount to a full opinion, or even formal findings of
fact and conclusions of law. And, of course, an impartial decisionmaker is essential.
Cf. In re Murchison, 349 U.S. 133 (1955); Wong Yang Sung v. McGrath, 339 U.S. 33,
45-46 (1950). We agree with the District Court that prior involvement in some
aspects of a case will not necessarily bar a welfare official from acting as a
decisionmaker. He should not, however, have participated in making the
determination under review. Affirmed.
Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972)
Respondent, hired for a fixed term of one academic year to teach at a state
university, was informed without explanation that he would not be rehired for the
ensuing year. A statute provided that all state university teachers would be
employed initially on probation, and that only after four years' continuous service
would teachers achieve permanent employment "during efficiency and good
behavior," with procedural protection against separation. University rules gave a
nontenured teacher "dismissed" before the end of the year some opportunity for
review of the "dismissal," but provided that no reason need be given for
nonretention of a nontenured teacher, and no standards were specified for
reemployment. Respondent brought this action claiming deprivation of his
Fourteenth Amendment rights, alleging infringement of (1) his free speech right
because the true reason for his nonretention was his criticism of the university
administration, and (2) his procedural due process right because of the university's
failure to advise him of the reason for its decision. The District Court granted
summary judgment for the respondent on the procedural issue. The Court of Appeals
affirmed.
Held: The Fourteenth Amendment does not require opportunity for a hearing prior to
the nonrenewal of a nontenured state teacher's contract unless he can show that
the nonrenewal deprived him of an interest in "liberty" or that he had a "property"
interest in continued employment, despite the lack of tenure or a formal contract.
Here, the nonretention of respondent, absent any charges against him or stigma or
disability foreclosing other employment, is not tantamount to a deprivation of
"liberty," and the terms of respondent's employment accorded him no "property"
interest protected by procedural due process. The courts below therefore erred in
granting summary judgment for the respondent on the procedural due process
issue. Pp. 408 U. S. 569-579.
MR. JUSTICE STEWART delivered the opinion of the Court.
In 1968, the respondent, David Roth, was hired for his first teaching job as assistant
professor of political science at Wisconsin State University-Oshkosh. He was hired for
a fixed term of one academic year. The notice of his faculty appointment specified
that his employment would begin on September 1, 1968, and would end on June 30,
1969. [Footnote 1] The respondent completed that term. But he was informed that
he would not be rehired for the next academic year.
The respondent had no tenure rights to continued employment. Under Wisconsin
statutory law, a state university teacher can acquire tenure as a "permanent"
employee only after four years of year-to-year employment. Having acquired tenure,
a teacher is entitled to continued employment "during efficiency and good
behavior." A relatively new teacher without tenure, however, is, under Wisconsin
law, entitled to nothing beyond his one-year appointment. [Footnote 2] There are no
statutory or administrative standards defining eligibility for reemployment. State law
thus clearly leaves the decision whether to rehire a nontenured teacher for another
year to the unfettered discretion of university officials.
The procedural protection afforded a Wisconsin State University teacher before he is
separated from the University corresponds to his job security. As a matter of
statutory law, a tenured teacher cannot be "discharged except for cause upon
written charges" and pursuant to certain procedures. [Footnote 3] A nontenured
teacher, similarly, is protected to some extent during his one-year term. Rules
promulgated by the Board of Regents provide that a nontenured teacher "dismissed"
before the end of the year may have some opportunity for review of the "dismissal."
But the Rules provide no real protection for a nontenured teacher who simply is not
reemployed for the next year. He must be informed by February 1 "concerning
retention or nonretention for the ensuing year." But "no reason for non-retention
need be given. No review or appeal is provided in such case." [Footnote 4]
In conformance with these Rules, the President of Wisconsin State University-
Oshkosh informed the respondent before February 1, 1969, that he would not be
rehired for the 1969-1970 academic year. He gave the respondent no reason for the
decision and no opportunity to challenge it at any sort of hearing.
The respondent then brought this action in Federal District Court alleging that the
decision not to rehire him for the next year infringed his Fourteenth Amendment
rights. He attacked the decision both in substance and procedure. First, he alleged
that the true reason for the decision was to punish him for certain statements critical
of the University administration, and that it therefore violated his right to freedom of
speech. [Footnote 5]
Second, he alleged that the failure of University officials to give him notice of any
reason for nonretention and an opportunity for a hearing violated his right, to
procedural due process of law.
The District Court granted summary judgment for the respondent on the procedural
issue, ordering the University officials to provide him with reasons and a hearing.
310 F.Supp. 972. The Court of Appeals, with one judge dissenting, affirmed this
partial summary judgment. 446 F.2d 806. We granted certiorari. 404 U.S. 909. The
only question presented to us at this stage in the case is whether the respondent
had a constitutional right to a statement of reasons and a hearing on the
University's decision not to rehire him for another year. [Footnote 6] We hold that he
did not.
I
The requirements of procedural due process apply only to the deprivation of
interests encompassed by the Fourteenth Amendment's protection of liberty and
property. When protected interests are implicated, the right to some kind of prior
hearing is paramount. [Footnote 7] But the range of interests protected by
procedural due process is not infinite.
The District Court decided that procedural due process guarantees apply in this case
by assessing and balancing the weights of the particular interests involved. It
concluded that the respondent's interest in reemployment at Wisconsin State
University-Oshkosh outweighed the University's interest in denying him
reemployment summarily. 310 F.Supp. at 977-979. Undeniably, the respondent's
reemployment prospects were of major concern to him -- concern that we surely
cannot say was insignificant. And a weighing process has long been a part of any
determination of the form of hearing required in particular situations by procedural
due process. [Footnote 8] But, to determine whether due process requirements
apply in the first place, we must look not to the "weight," but to the nature, of the
interest at stake. See Morrissey v. Brewer, ante at 408 U. S. 481. We must look to
see if the interest is within the Fourteenth Amendment's protection of liberty and
property.
"Liberty" and "property" are broad and majestic terms. They are among the
"[g]reat [constitutional] concepts . . . purposely left to gather meaning from
experience. . . . [T]hey relate to the whole domain of social and economic fact, and
the statesmen who founded this Nation knew too well that only a stagnant society
remains unchanged."
National Ins. Co. v. Tidewater Co., 337 U. S. 582, 337 U. S. 646 (Frankfurter, J.,
dissenting). For that reason, the Court has fully and finally rejected the wooden
distinction between "rights" and "privileges" that once seemed to govern the
applicability of procedural due process rights. [Footnote 9] The Court has also made
clear that the property interests protected by procedural due process extend well
beyond actual ownership of real estate, chattels, or money. [Footnote 10] By the
same token, the Court has required due process protection for deprivations of liberty
beyond the sort of formal constraints imposed by the criminal process. [Footnote 11]
Yet, while the Court has eschewed rigid or formalistic limitations on the protection of
procedural due process, it has at the same time observed certain boundaries. For
the words "liberty" and "property" in the Due Process Clause of the Fourteenth
Amendment must be given some meaning.
II
"While this Court has not attempted to define with exactness the liberty . . .
guaranteed [by the Fourteenth Amendment], the term has received much
consideration and some of the included things have been definitely stated. Without
doubt, it denotes not merely freedom from bodily restraint, but also the right of the
individual to contract, to engage in any of the common occupations of life, to
acquire useful knowledge, to marry, establish a home and bring up children, to
worship God according to the dictates of his own conscience, and generally to enjoy
those privileges long recognized . . . as essential to the orderly pursuit of happiness
by free men."
Meyer v. Nebraska, 262 U. S. 390, 262 U. S. 399. In a Constitution for a free people,
there can be no doubt that the meaning of "liberty" must be broad indeed. See, e.g.,
Bolling v. Sharpe, 347 U. S. 497, 347 U. S. 499-500; Stanley v. Illinois, 405 U. S. 645.
There might be cases in which a State refused to reemploy a person under such
circumstances that interests in liberty would be implicated. But this is not such a
case.
The State, in declining to rehire the respondent, did not make any charge against
him that might seriously damage his standing and associations in his community. It
did not base the nonrenewal of his contract on a charge, for example, that he had
been guilty of dishonesty, or immorality. Had it done so, this would be a different
case. For
"[w]here a person's good name, reputation, honor, or integrity is at stake because of
what the government is doing to him, notice and an opportunity to be heard are
essential."
Wisconsin v. Constantineau, 400 U. S. 433, 400 U. S. 437. Wieman v. Updegraff, 344
U. S. 183, 344 U. S. 191; Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S.
123; United States v. Lovett, 328 U. S. 303, 328 U. S. 316-317; Peters v. Hobby, 349
U. S. 331, 349 U. S. 352 (DOUGLAS, J., concurring). See Cafeteria Workers v. McElroy,
367 U. S. 886, 367 U. S. 898. In such a case, due process would accord an
opportunity to refute the charge before University officials. [Footnote 12] In the
present case, however, there is no suggestion whatever that the respondent's "good
name, reputation, honor, or integrity" is at stake.
Similarly, there is no suggestion that the State, in declining to reemploy the
respondent, imposed on him a stigma or other disability that foreclosed his freedom
to take advantage of other employment opportunities. The State, for example, did
not invoke any regulations to bar the respondent from all other public employment
in state universities. Had it done so, this, again, would be a different case. For "[t]o
be deprived not only of present government employment but of future opportunity
for it certainly is no small injury. . . ." Joint Anti-Fascist Refugee Committee v.
McGrath, supra, at 341 U. S. 185 (Jackson, J., concurring). See Truax v. Raich, 239 U.
S. 33, 239 U. S. 41. The Court has held, for example, that a State, in regulating
eligibility for a type of professional employment, cannot foreclose a range of
opportunities "in a manner . . . that contravene[s] . . . Due Process," Schware v.
Board of Bar Examiners, 353 U. S. 232, 353 U. S. 238, and, specifically, in a manner
that denies the right to a full prior hearing. Willner v. Committee on Character, 373
U. S. 96, 373 U. S. 103. See Cafeteria Workers v. McElroy, supra, at 367 U. S. 898. In
the present case, however, this principle does not come into play. [Footnote 13]
To be sure, the respondent has alleged that the nonrenewal of his contract was
based on his exercise of his right to freedom of speech. But this allegation is not now
before us. The District Court stayed proceedings on this issue, and the respondent
has yet to prove that the decision not to rehire him was, in fact, based on his free
speech activities. [Footnote 14]
Hence, on the record before us, all that clearly appears is that the respondent was
not rehired for one year at one university. It stretches the concept too far to suggest
that a person is deprived of "liberty" when he simply is not rehired in one job, but
remains as free as before to seek another. Cafeteria Workers v. McElroy, supra, at
367 U. S. 895-896.
III
The Fourteenth Amendment's procedural protection of property is a safeguard of the
security of interests that a person has already acquired in specific benefits. These
interests -- property interests -- may take many forms.
Thus, the Court has held that a person receiving welfare benefits under statutory
and administrative standards defining eligibility for them has an interest in
continued receipt of those benefits that is safeguarded by procedural due process.
Goldberg v. Kelly, 397 U. S. 254. [Footnote 15] See Flemming v. Nestor, 363 U. S.
603, 363 U. S. 611. Similarly, in the area of public employment, the Court has held
that a public college professor dismissed from an office held under tenure
provisions, Slochower v. Board of Education, 350 U. S. 551, and college professors
and staff members dismissed during the terms of their contracts, Wieman v.
Updegraff, 344 U. S. 183, have interests in continued employment that are
safeguarded by due process. Only last year, the Court held that this principle
"proscribing summary dismissal from public employment without hearing or inquiry
required by due process" also applied to a teacher recently hired without tenure or a
formal contract, but nonetheless with a clearly implied promise of continued
employment. Connell v. Higginbotham, 403 U. S. 207, 403 U. S. 208.
Certain attributes of "property" interests protected by procedural due process
emerge from these decisions. To have a property interest in a benefit, a person
clearly must have more than an abstract need or desire for it. He must have more
than a unilateral expectation of it. He must, instead, have a legitimate claim of
entitlement to it. It is a purpose of the ancient institution of property to protect those
claims upon which people rely in their daily lives, reliance that must not be
arbitrarily undermined. It is a purpose of the constitutional right to a hearing to
provide an opportunity for a person to vindicate those claims.
Property interests, of course, are not created by the Constitution. Rather, they are
created and their dimensions are defined by existing rules or understandings that
stem from an independent source such as state law -- rules or understandings that
secure certain benefits and that support claims of entitlement to those benefits.
Thus, the welfare recipients in Goldberg v. Kelly, supra, had a claim of entitlement to
welfare payments that was grounded in the statute defining eligibility for them. The
recipients had not yet shown that they were, in fact, within the statutory terms of
eligibility. But we held that they had a right to a hearing at which they might attempt
to do so.
Just as the welfare recipients' "property" interest in welfare payments was created
and defined by statutory terms, so the respondent's "property" interest in
employment at Wisconsin State University-Oshkosh was created and defined by the
terms of his appointment. Those terms secured his interest in employment up to
June 30, 1969. But the important fact in this case is that they specifically provided
that the respondent's employment was to terminate on June 30. They did not
provide for contract renewal absent "sufficient cause." Indeed, they made no
provision for renewal whatsoever.

Thus, the terms of the respondent's appointment secured absolutely no interest in
reemployment for the next year. They supported absolutely no possible claim of
entitlement to reemployment. Nor, significantly, was there any state statute or
University rule or policy that secured his interest in reemployment or that created
any legitimate claim to it. [Footnote 16] In these circumstances, the respondent
surely had an abstract concern in being rehired, but he did not have a property
interest sufficient to require the University authorities to give him a hearing when
they declined to renew his contract of employment.
IV
Our analysis of the respondent's constitutional rights in this case in no way indicates
a view that an opportunity for a hearing or a statement of reasons for nonretention
would, or would not, be appropriate or wise in public colleges and universities.
[Footnote 17] For it is a written Constitution that we apply. Our role is confined to
interpretation of that Constitution.
We must conclude that the summary judgment for the respondent should not have
been granted, since the respondent has not shown that he was deprived of liberty or
property protected by the Fourteenth Amendment. The judgment of the Court of
Appeals, accordingly, is reversed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
G.R. No. 158693 November 17, 2004
JENNY M. AGABON and VIRGILIO C. AGABON, petitioners,
vs. NATIONAL LABOR RELATIONS COMMISSION (NLRC), RIVIERA HOME
IMPROVEMENTS, INC. and VICENTE ANGELES, respondents.
YNARES-SANTIAGO, J.:
This petition for review seeks to reverse the decision1 of the Court of Appeals dated
January 23, 2003, in CA-G.R. SP No. 63017, modifying the decision of National Labor
Relations Commission (NLRC) in NLRC-NCR Case No. 023442-00.
Private respondent Riviera Home Improvements, Inc. is engaged in the business of
selling and installing ornamental and construction materials. It employed petitioners
Virgilio Agabon and Jenny Agabon as gypsum board and cornice installers on January
2, 19922 until February 23, 1999 when they were dismissed for abandonment of
work.
Petitioners then filed a complaint for illegal dismissal and payment of money claims3
and on December 28, 1999, the Labor Arbiter rendered a decision declaring the
dismissals illegal and ordered private respondent to pay the monetary claims. The
dispositive portion of the decision states:
WHEREFORE, premises considered, We find the termination of the complainants
illegal. Accordingly, respondent is hereby ordered to pay them their backwages up to
November 29, 1999 in the sum of:
1. Jenny M. Agabon - P56, 231.93
2. Virgilio C. Agabon - 56, 231.93
and, in lieu of reinstatement to pay them their separation pay of one (1) month for
every year of service from date of hiring up to November 29, 1999.
Respondent is further ordered to pay the complainants their holiday pay and service
incentive leave pay for the years 1996, 1997 and 1998 as well as their premium pay
for holidays and rest days and Virgilio Agabon's 13th month pay differential
amounting to TWO THOUSAND ONE HUNDRED FIFTY (P2,150.00) Pesos, or the
aggregate amount of ONE HUNDRED TWENTY ONE THOUSAND SIX HUNDRED
SEVENTY EIGHT & 93/100 (P121,678.93) Pesos for Jenny Agabon, and ONE
HUNDRED TWENTY THREE THOUSAND EIGHT HUNDRED TWENTY EIGHT & 93/100
(P123,828.93) Pesos for Virgilio Agabon, as per attached computation of Julieta C.
Nicolas, OIC, Research and Computation Unit, NCR.
SO ORDERED.4
On appeal, the NLRC reversed the Labor Arbiter because it found that the petitioners
had abandoned their work, and were not entitled to backwages and separation pay.
The other money claims awarded by the Labor Arbiter were also denied for lack of
evidence.5
Upon denial of their motion for reconsideration, petitioners filed a petition for
certiorari with the Court of Appeals.
The Court of Appeals in turn ruled that the dismissal of the petitioners was not illegal
because they had abandoned their employment but ordered the payment of money
claims. The dispositive portion of the decision reads:
WHEREFORE, the decision of the National Labor Relations Commission is REVERSED
only insofar as it dismissed petitioner's money claims. Private respondents are
ordered to pay petitioners holiday pay for four (4) regular holidays in 1996, 1997,
and 1998, as well as their service incentive leave pay for said years, and to pay the
balance of petitioner Virgilio Agabon's 13th month pay for 1998 in the amount of
P2,150.00.
SO ORDERED.6
Hence, this petition for review on the sole issue of whether petitioners were illegally
dismissed.7
Petitioners assert that they were dismissed because the private respondent refused
to give them assignments unless they agreed to work on a "pakyaw" basis when
they reported for duty on February 23, 1999. They did not agree on this
arrangement because it would mean losing benefits as Social Security System (SSS)
members. Petitioners also claim that private respondent did not comply with the
twin requirements of notice and hearing.8
Private respondent, on the other hand, maintained that petitioners were not
dismissed but had abandoned their work.9 In fact, private respondent sent two
letters to the last known addresses of the petitioners advising them to report for
work. Private respondent's manager even talked to petitioner Virgilio Agabon by
telephone sometime in June 1999 to tell him about the new assignment at Pacific
Plaza Towers involving 40,000 square meters of cornice installation work. However,
petitioners did not report for work because they had subcontracted to perform
installation work for another company. Petitioners also demanded for an increase in
their wage to P280.00 per day. When this was not granted, petitioners stopped
reporting for work and filed the illegal dismissal case.10
It is well-settled that findings of fact of quasi-judicial agencies like the NLRC are
accorded not only respect but even finality if the findings are supported by
substantial evidence. This is especially so when such findings were affirmed by the
Court of Appeals.11 However, if the factual findings of the NLRC and the Labor
Arbiter are conflicting, as in this case, the reviewing court may delve into the
records and examine for itself the questioned findings.12
Accordingly, the Court of Appeals, after a careful review of the facts, ruled that
petitioners' dismissal was for a just cause. They had abandoned their employment
and were already working for another employer.
To dismiss an employee, the law requires not only the existence of a just and valid
cause but also enjoins the employer to give the employee the opportunity to be
heard and to defend himself.13 Article 282 of the Labor Code enumerates the just
causes for termination by the employer: (a) serious misconduct or willful
disobedience by the employee of the lawful orders of his employer or the latter's
representative in connection with the employee's work; (b) gross and habitual
neglect by the employee of his duties; (c) fraud or willful breach by the employee of
the trust reposed in him by his employer or his duly authorized representative; (d)
commission of a crime or offense by the employee against the person of his
employer or any immediate member of his family or his duly authorized
representative; and (e) other causes analogous to the foregoing.
Abandonment is the deliberate and unjustified refusal of an employee to resume his
employment.14 It is a form of neglect of duty, hence, a just cause for termination of
employment by the employer.15 For a valid finding of abandonment, these two
factors should be present: (1) the failure to report for work or absence without valid
or justifiable reason; and (2) a clear intention to sever employer-employee
relationship, with the second as the more determinative factor which is manifested
by overt acts from which it may be deduced that the employees has no more
intention to work. The intent to discontinue the employment must be shown by clear
proof that it was deliberate and unjustified.16
In February 1999, petitioners were frequently absent having subcontracted for an
installation work for another company. Subcontracting for another company clearly
showed the intention to sever the employer-employee relationship with private
respondent. This was not the first time they did this. In January 1996, they did not
report for work because they were working for another company. Private respondent
at that time warned petitioners that they would be dismissed if this happened again.
Petitioners disregarded the warning and exhibited a clear intention to sever their
employer-employee relationship. The record of an employee is a relevant
consideration in determining the penalty that should be meted out to him.17
In Sandoval Shipyard v. Clave,18 we held that an employee who deliberately
absented from work without leave or permission from his employer, for the purpose
of looking for a job elsewhere, is considered to have abandoned his job. We should
apply that rule with more reason here where petitioners were absent because they
were already working in another company.
The law imposes many obligations on the employer such as providing just
compensation to workers, observance of the procedural requirements of notice and
hearing in the termination of employment. On the other hand, the law also
recognizes the right of the employer to expect from its workers not only good
performance, adequate work and diligence, but also good conduct19 and loyalty.
The employer may not be compelled to continue to employ such persons whose
continuance in the service will patently be inimical to his interests.20
After establishing that the terminations were for a just and valid cause, we now
determine if the procedures for dismissal were observed.
The procedure for terminating an employee is found in Book VI, Rule I, Section 2(d)
of the Omnibus Rules Implementing the Labor Code:
Standards of due process: requirements of notice. In all cases of termination of
employment, the following standards of due process shall be substantially observed:
I. For termination of employment based on just causes as defined in Article 282 of
the Code:
(a) A written notice served on the employee specifying the ground or grounds for
termination, and giving to said employee reasonable opportunity within which to
explain his side;
(b) A hearing or conference during which the employee concerned, with the
assistance of counsel if the employee so desires, is given opportunity to respond to
the charge, present his evidence or rebut the evidence presented against him; and
(c) A written notice of termination served on the employee indicating that upon due
consideration of all the circumstances, grounds have been established to justify his
termination.
In case of termination, the foregoing notices shall be served on the employee's last
known address.
Dismissals based on just causes contemplate acts or omissions attributable to the
employee while dismissals based on authorized causes involve grounds under the
Labor Code which allow the employer to terminate employees. A termination for an
authorized cause requires payment of separation pay. When the termination of
employment is declared illegal, reinstatement and full backwages are mandated
under Article 279. If reinstatement is no longer possible where the dismissal was
unjust, separation pay may be granted.
Procedurally, (1) if the dismissal is based on a just cause under Article 282, the
employer must give the employee two written notices and a hearing or opportunity
to be heard if requested by the employee before terminating the employment: a
notice specifying the grounds for which dismissal is sought a hearing or an
opportunity to be heard and after hearing or opportunity to be heard, a notice of the
decision to dismiss; and (2) if the dismissal is based on authorized causes under
Articles 283 and 284, the employer must give the employee and the Department of
Labor and Employment written notices 30 days prior to the effectivity of his
separation.
From the foregoing rules four possible situations may be derived: (1) the dismissal is
for a just cause under Article 282 of the Labor Code, for an authorized cause under
Article 283, or for health reasons under Article 284, and due process was observed;
(2) the dismissal is without just or authorized cause but due process was observed;
(3) the dismissal is without just or authorized cause and there was no due process;
and (4) the dismissal is for just or authorized cause but due process was not
observed.
In the first situation, the dismissal is undoubtedly valid and the employer will not
suffer any liability.
In the second and third situations where the dismissals are illegal, Article 279
mandates that the employee is entitled to reinstatement without loss of seniority
rights and other privileges and full backwages, inclusive of allowances, and other
benefits or their monetary equivalent computed from the time the compensation
was not paid up to the time of actual reinstatement.
In the fourth situation, the dismissal should be upheld. While the procedural infirmity
cannot be cured, it should not invalidate the dismissal. However, the employer
should be held liable for non-compliance with the procedural requirements of due
process.
The present case squarely falls under the fourth situation. The dismissal should be
upheld because it was established that the petitioners abandoned their jobs to work
for another company. Private respondent, however, did not follow the notice
requirements and instead argued that sending notices to the last known addresses
would have been useless because they did not reside there anymore. Unfortunately
for the private respondent, this is not a valid excuse because the law mandates the
twin notice requirements to the employee's last known address.21 Thus, it should be
held liable for non-compliance with the procedural requirements of due process.
A review and re-examination of the relevant legal principles is appropriate and
timely to clarify the various rulings on employment termination in the light of
Serrano v. National Labor Relations Commission.22
Prior to 1989, the rule was that a dismissal or termination is illegal if the employee
was not given any notice. In the 1989 case of Wenphil Corp. v. National Labor
Relations Commission,23 we reversed this long-standing rule and held that the
dismissed employee, although not given any notice and hearing, was not entitled to
reinstatement and backwages because the dismissal was for grave misconduct and
insubordination, a just ground for termination under Article 282. The employee had a
violent temper and caused trouble during office hours, defying superiors who tried to
pacify him. We concluded that reinstating the employee and awarding backwages
"may encourage him to do even worse and will render a mockery of the rules of
discipline that employees are required to observe."24 We further held that:
Under the circumstances, the dismissal of the private respondent for just cause
should be maintained. He has no right to return to his former employment.
However, the petitioner must nevertheless be held to account for failure to extend to
private respondent his right to an investigation before causing his dismissal. The
rule is explicit as above discussed. The dismissal of an employee must be for just or
authorized cause and after due process. Petitioner committed an infraction of the
second requirement. Thus, it must be imposed a sanction for its failure to give a
formal notice and conduct an investigation as required by law before dismissing
petitioner from employment. Considering the circumstances of this case petitioner
must indemnify the private respondent the amount of P1,000.00. The measure of
this award depends on the facts of each case and the gravity of the omission
committed by the employer.25
The rule thus evolved: where the employer had a valid reason to dismiss an
employee but did not follow the due process requirement, the dismissal may be
upheld but the employer will be penalized to pay an indemnity to the employee. This
became known as the Wenphil or Belated Due Process Rule.
On January 27, 2000, in Serrano, the rule on the extent of the sanction was changed.
We held that the violation by the employer of the notice requirement in termination
for just or authorized causes was not a denial of due process that will nullify the
termination. However, the dismissal is ineffectual and the employer must pay full
backwages from the time of termination until it is judicially declared that the
dismissal was for a just or authorized cause.
The rationale for the re-examination of the Wenphil doctrine in Serrano was the
significant number of cases involving dismissals without requisite notices. We
concluded that the imposition of penalty by way of damages for violation of the
notice requirement was not serving as a deterrent. Hence, we now required payment
of full backwages from the time of dismissal until the time the Court finds the
dismissal was for a just or authorized cause.
Serrano was confronting the practice of employers to "dismiss now and pay later" by
imposing full backwages.
We believe, however, that the ruling in Serrano did not consider the full meaning of
Article 279 of the Labor Code which states:
ART. 279. Security of Tenure. In cases of regular employment, the employer shall
not terminate the services of an employee except for a just cause or when
authorized by this Title. An employee who is unjustly dismissed from work shall be
entitled to reinstatement without loss of seniority rights and other privileges and to
his full backwages, inclusive of allowances, and to his other benefits or their
monetary equivalent computed from the time his compensation was withheld from
him up to the time of his actual reinstatement.
This means that the termination is illegal only if it is not for any of the justified or
authorized causes provided by law. Payment of backwages and other benefits,
including reinstatement, is justified only if the employee was unjustly dismissed.
The fact that the Serrano ruling can cause unfairness and injustice which elicited
strong dissent has prompted us to revisit the doctrine.
To be sure, the Due Process Clause in Article III, Section 1 of the Constitution
embodies a system of rights based on moral principles so deeply imbedded in the
traditions and feelings of our people as to be deemed fundamental to a civilized
society as conceived by our entire history. Due process is that which comports with
the deepest notions of what is fair and right and just.26 It is a constitutional restraint
on the legislative as well as on the executive and judicial powers of the government
provided by the Bill of Rights.
Due process under the Labor Code, like Constitutional due process, has two aspects:
substantive, i.e., the valid and authorized causes of employment termination under
the Labor Code; and procedural, i.e., the manner of dismissal. Procedural due
process requirements for dismissal are found in the Implementing Rules of P.D. 442,
as amended, otherwise known as the Labor Code of the Philippines in Book VI, Rule I,
Sec. 2, as amended by Department Order Nos. 9 and 10.27 Breaches of these due
process requirements violate the Labor Code. Therefore statutory due process
should be differentiated from failure to comply with constitutional due process.
Constitutional due process protects the individual from the government and assures
him of his rights in criminal, civil or administrative proceedings; while statutory due
process found in the Labor Code and Implementing Rules protects employees from
being unjustly terminated without just cause after notice and hearing.
In Sebuguero v. National Labor Relations Commission,28 the dismissal was for a just
and valid cause but the employee was not accorded due process. The dismissal was
upheld by the Court but the employer was sanctioned. The sanction should be in the
nature of indemnification or penalty, and depends on the facts of each case and the
gravity of the omission committed by the employer.
In Nath v. National Labor Relations Commission,29 it was ruled that even if the
employee was not given due process, the failure did not operate to eradicate the
just causes for dismissal. The dismissal being for just cause, albeit without due
process, did not entitle the employee to reinstatement, backwages, damages and
attorney's fees.
Mr. Justice Jose C. Vitug, in his separate opinion in MGG Marine Services, Inc. v.
National Labor Relations Commission,30 which opinion he reiterated in Serrano,
stated:
C. Where there is just cause for dismissal but due process has not been properly
observed by an employer, it would not be right to order either the reinstatement of
the dismissed employee or the payment of backwages to him. In failing, however, to
comply with the procedure prescribed by law in terminating the services of the
employee, the employer must be deemed to have opted or, in any case, should be
made liable, for the payment of separation pay. It might be pointed out that the
notice to be given and the hearing to be conducted generally constitute the two-part
due process requirement of law to be accorded to the employee by the employer.
Nevertheless, peculiar circumstances might obtain in certain situations where to
undertake the above steps would be no more than a useless formality and where,
accordingly, it would not be imprudent to apply the res ipsa loquitur rule and award,
in lieu of separation pay, nominal damages to the employee. x x x.31
After carefully analyzing the consequences of the divergent doctrines in the law on
employment termination, we believe that in cases involving dismissals for cause but
without observance of the twin requirements of notice and hearing, the better rule is
to abandon the Serrano doctrine and to follow Wenphil by holding that the dismissal
was for just cause but imposing sanctions on the employer. Such sanctions,
however, must be stiffer than that imposed in Wenphil. By doing so, this Court would
be able to achieve a fair result by dispensing justice not just to employees, but to
employers as well.
The unfairness of declaring illegal or ineffectual dismissals for valid or authorized
causes but not complying with statutory due process may have far-reaching
consequences.
This would encourage frivolous suits, where even the most notorious violators of
company policy are rewarded by invoking due process. This also creates absurd
situations where there is a just or authorized cause for dismissal but a procedural
infirmity invalidates the termination. Let us take for example a case where the
employee is caught stealing or threatens the lives of his co-employees or has
become a criminal, who has fled and cannot be found, or where serious business
losses demand that operations be ceased in less than a month. Invalidating the
dismissal would not serve public interest. It could also discourage investments that
can generate employment in the local economy.
The constitutional policy to provide full protection to labor is not meant to be a
sword to oppress employers. The commitment of this Court to the cause of labor
does not prevent us from sustaining the employer when it is in the right, as in this
case.32 Certainly, an employer should not be compelled to pay employees for work
not actually performed and in fact abandoned.
The employer should not be compelled to continue employing a person who is
admittedly guilty of misfeasance or malfeasance and whose continued employment
is patently inimical to the employer. The law protecting the rights of the laborer
authorizes neither oppression nor self-destruction of the employer.33
It must be stressed that in the present case, the petitioners committed a grave
offense, i.e., abandonment, which, if the requirements of due process were complied
with, would undoubtedly result in a valid dismissal.
An employee who is clearly guilty of conduct violative of Article 282 should not be
protected by the Social Justice Clause of the Constitution. Social justice, as the term
suggests, should be used only to correct an injustice. As the eminent Justice Jose P.
Laurel observed, social justice must be founded on the recognition of the necessity
of interdependence among diverse units of a society and of the protection that
should be equally and evenly extended to all groups as a combined force in our
social and economic life, consistent with the fundamental and paramount objective
of the state of promoting the health, comfort, and quiet of all persons, and of
bringing about "the greatest good to the greatest number."34
This is not to say that the Court was wrong when it ruled the way it did in Wenphil,
Serrano and related cases. Social justice is not based on rigid formulas set in stone.
It has to allow for changing times and circumstances.
Justice Isagani Cruz strongly asserts the need to apply a balanced approach to labor-
management relations and dispense justice with an even hand in every case:
We have repeatedly stressed that social justice or any justice for that matter is
for the deserving, whether he be a millionaire in his mansion or a pauper in his
hovel. It is true that, in case of reasonable doubt, we are to tilt the balance in favor
of the poor to whom the Constitution fittingly extends its sympathy and compassion.
But never is it justified to give preference to the poor simply because they are poor,
or reject the rich simply because they are rich, for justice must always be served for
the poor and the rich alike, according to the mandate of the law.35
Justice in every case should only be for the deserving party. It should not be
presumed that every case of illegal dismissal would automatically be decided in
favor of labor, as management has rights that should be fully respected and
enforced by this Court. As interdependent and indispensable partners in nation-
building, labor and management need each other to foster productivity and
economic growth; hence, the need to weigh and balance the rights and welfare of
both the employee and employer.
Where the dismissal is for a just cause, as in the instant case, the lack of statutory
due process should not nullify the dismissal, or render it illegal, or ineffectual.
However, the employer should indemnify the employee for the violation of his
statutory rights, as ruled in Reta v. National Labor Relations Commission.36 The
indemnity to be imposed should be stiffer to discourage the abhorrent practice of
"dismiss now, pay later," which we sought to deter in the Serrano ruling. The
sanction should be in the nature of indemnification or penalty and should depend on
the facts of each case, taking into special consideration the gravity of the due
process violation of the employer.
Under the Civil Code, nominal damages is adjudicated in order that a right of the
plaintiff, which has been violated or invaded by the defendant, may be vindicated or
recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered
by him.37
As enunciated by this Court in Viernes v. National Labor Relations Commissions,38
an employer is liable to pay indemnity in the form of nominal damages to an
employee who has been dismissed if, in effecting such dismissal, the employer fails
to comply with the requirements of due process. The Court, after considering the
circumstances therein, fixed the indemnity at P2,590.50, which was equivalent to
the employee's one month salary. This indemnity is intended not to penalize the
employer but to vindicate or recognize the employee's right to statutory due process
which was violated by the employer.39
The violation of the petitioners' right to statutory due process by the private
respondent warrants the payment of indemnity in the form of nominal damages. The
amount of such damages is addressed to the sound discretion of the court, taking
into account the relevant circumstances.40 Considering the prevailing
circumstances in the case at bar, we deem it proper to fix it at P30,000.00. We
believe this form of damages would serve to deter employers from future violations
of the statutory due process rights of employees. At the very least, it provides a
vindication or recognition of this fundamental right granted to the latter under the
Labor Code and its Implementing Rules.
Private respondent claims that the Court of Appeals erred in holding that it failed to
pay petitioners' holiday pay, service incentive leave pay and 13th month pay.
We are not persuaded.
We affirm the ruling of the appellate court on petitioners' money claims. Private
respondent is liable for petitioners' holiday pay, service incentive leave pay and 13th
month pay without deductions.
As a general rule, one who pleads payment has the burden of proving it. Even where
the employee must allege non-payment, the general rule is that the burden rests on
the employer to prove payment, rather than on the employee to prove non-
payment. The reason for the rule is that the pertinent personnel files, payrolls,
records, remittances and other similar documents which will show that overtime,
differentials, service incentive leave and other claims of workers have been paid
are not in the possession of the worker but in the custody and absolute control of
the employer.41
In the case at bar, if private respondent indeed paid petitioners' holiday pay and
service incentive leave pay, it could have easily presented documentary proofs of
such monetary benefits to disprove the claims of the petitioners. But it did not,
except with respect to the 13th month pay wherein it presented cash vouchers
showing payments of the benefit in the years disputed.42 Allegations by private
respondent that it does not operate during holidays and that it allows its employees
10 days leave with pay, other than being self-serving, do not constitute proof of
payment. Consequently, it failed to discharge the onus probandi thereby making it
liable for such claims to the petitioners.
Anent the deduction of SSS loan and the value of the shoes from petitioner Virgilio
Agabon's 13th month pay, we find the same to be unauthorized. The evident
intention of Presidential Decree No. 851 is to grant an additional income in the form
of the 13th month pay to employees not already receiving the same43 so as "to
further protect the level of real wages from the ravages of world-wide inflation."44
Clearly, as additional income, the 13th month pay is included in the definition of
wage under Article 97(f) of the Labor Code, to wit:
(f) "Wage" paid to any employee shall mean the remuneration or earnings, however
designated, capable of being expressed in terms of money whether fixed or
ascertained on a time, task, piece , or commission basis, or other method of
calculating the same, which is payable by an employer to an employee under a
written or unwritten contract of employment for work done or to be done, or for
services rendered or to be rendered and includes the fair and reasonable value, as
determined by the Secretary of Labor, of board, lodging, or other facilities
customarily furnished by the employer to the employee"
from which an employer is prohibited under Article 11345 of the same Code from
making any deductions without the employee's knowledge and consent. In the
instant case, private respondent failed to show that the deduction of the SSS loan
and the value of the shoes from petitioner Virgilio Agabon's 13th month pay was
authorized by the latter. The lack of authority to deduct is further bolstered by the
fact that petitioner Virgilio Agabon included the same as one of his money claims
against private respondent.
The Court of Appeals properly reinstated the monetary claims awarded by the Labor
Arbiter ordering the private respondent to pay each of the petitioners holiday pay for
four regular holidays from 1996 to 1998, in the amount of P6,520.00, service
incentive leave pay for the same period in the amount of P3,255.00 and the balance
of Virgilio Agabon's thirteenth month pay for 1998 in the amount of P2,150.00.
WHEREFORE, in view of the foregoing, the petition is DENIED. The decision of the
Court of Appeals dated January 23, 2003, in CA-G.R. SP No. 63017, finding that
petitioners' Jenny and Virgilio Agabon abandoned their work, and ordering private
respondent to pay each of the petitioners holiday pay for four regular holidays from
1996 to 1998, in the amount of P6,520.00, service incentive leave pay for the same
period in the amount of P3,255.00 and the balance of Virgilio Agabon's thirteenth
month pay for 1998 in the amount of P2,150.00 is AFFIRMED with the MODIFICATION
that private respondent Riviera Home Improvements, Inc. is further ORDERED to pay
each of the petitioners the amount of P30,000.00 as nominal damages for non-
compliance with statutory due process.
No costs SO ORDERED.
Speedy Disposition
G.R. Nos. 174902-06 February 15, 2008
ALFREDO R. ENRIQUEZ, GENER C. ENDONA, and RHANDOLFO B. AMANSEC,
petitioners,
vs.OFFICE OF THE OMBUDSMAN, respondent.
DECISION
SANDOVAL-GUTIERREZ, J.:
Before us for resolution is a petition for mandamus1 filed by Alfredo R. Enriquez,
Gener C. Endona and Rhandolfo B. Amansec, petitioners, praying that the Office of
the Ombudsman, respondent, be ordered to dismiss the following administrative and
criminal cases against them:
1. OMB-ADM-0-00-0415, entitled "Fact-Finding and Intelligence Bureau vs. Alfredo R.
Enriquez, Enrico V. Enriquez, Edgardo V. Castro, Rachel E. Saldariega, Rhandolfo B.
Amansec and Ricardo R. Arandilla, for violation of Section 4(a) of Republic Act No.
6713, otherwise known as The Code of Conduct and Ethical Standards for Public
Officials and Employees, and Section 22 (a), (c), (i), (k) and (t), Rule XIV of the
Omnibus Rules Implementing Book V of Executive Order No. 292, The Administrative
Code of 1987";
2. OMB-ADM-0-00-0416, entitled "Fact-Finding and Intelligence Bureau vs. Alfredo R.
Enriquez, Rachel E. Saldariega, Rhandolfo B. Amansec, Ricardo R. Arandilla,
Edilberto Feliciano and Cynthia T. Ignacio, for dishonesty and grave misconduct";
3. OMB-ADM-0-00-0417, entitled "Fact-Finding and Intelligence Bureau vs. Alfredo R.
Enriquez, Ricardo F. Arandilla, Edilberto Feliciano, Cynthia T. Ignacio, Gener C.
Endona, Macario dela Pena and Rosalinda G. Alonzo, for gross neglect of duty,
inefficiency, incompetence in the performance of official duties, non-compliance with
the requirements of Republic Act No. 7718, as amended, and its implementing rules
and regulations";
4. OMB-0-00-0873, entitled "Fact-Finding and Intelligence Bureau vs. Alfredo R.
Enriquez, Enrico V. Enriquez, Edgardo C. Castro, Rachel E. Saldariega, Rhandolfo B.
Amansec and Ricardo R. Arandilla, for violation of Section 3(b) and (c) of Republic
Act No. 3019, as amended"; and
5. OMB-0-00-0874, entitled "Fact-Finding and Intelligence Bureau vs. Alfredo R.
Enriquez, Rachel E. Saldariega, Rhandolfo B. Amansec, Ricardo R. Arandilla,
Edilberto Feliciano and Cynthia T. Ignacio, for violation of Section 3(e) of Republic Act
No. 3019, as amended."2
The undisputed facts are:
On May 9, 2000, the Fact-Finding and Intelligence Bureau (FFIB), Office of the
Ombudsman, filed with the Administrative Adjudication Bureau, same Office,
separate Complaints-Affidavits3 of even date, charging, among others, herein
petitioners Alfredo R. Enriquez, Administrator, Land Registration Authority (LRA),
Gener C. Endona, LRA Legal Officer and member of the Pre-qualifications, Bids and
Awards Committee, and Rhandolfo B. Amansec, Chief, LRA Inspection and
Investigation Division, with administrative and criminal offenses enumerated above,
in connection with the bidding of the Land Titling Computerization Project of the LRA.
Finding sufficient basis to proceed with the investigation of the complaints,
respondent required petitioners to submit their counter-affidavits and controverting
evidence.
In their Joint Counter-Affidavit,4 petitioners vehemently denied the charges.
Thereafter, respondent conducted several hearings.
On June 15, 2001, complainant FFIB filed its Formal Offer of Evidence,5 to which
petitioners filed their Comment dated July 10, 2001.6
On January 29, 2002, petitioners likewise formally offered their evidence. On April
17, 2002, complainant FFIB filed its Comment thereon.7
Petitioners then waited for respondents resolution on the parties respective formal
offers of evidence, but there was none.
This prompted petitioners, on July 12, 2002, to file a Motion to Set Date for the
Simultaneous Filing of Memorandum by Each Party.8
Respondent, however, did not act on petitioners motion.
On December 12, 2002, Edilberto R. Feliciano, one of those charged with petitioners,
filed a Motion for Early Resolution9 expressing alarm over the "inaction of the Office
of the Ombudsman," and praying that the cases be resolved immediately
considering that all the evidence have been formally offered and the parties
arguments have been submitted.
Despite all these and petitioners repeated personal follow-ups, still, respondent
failed to resolve the cases.
On March 24, 2006, or six (6) years from the filing of the complaints- affidavits and
more than four (4) years after the parties formally offered their evidence on January
29, 2002, petitioners filed a Motion to Dismiss10 all the cases against them as
respondents "inordinate delay" constitutes a violation of their constitutional right to
a speedy disposition of their cases. They alleged that such delay "has not only
besmirched their reputation but also caused them severe anxiety and great and
irreparable injustice as they have been denied employment opportunities and
retirement benefits rightfully due them."
Significantly, complainant FFIB, despite notice, did not interpose any objection to
petitioners motion to dismiss. Yet, the cases have remained unresolved.
Owing to respondents "stubborn inaction," petitioners, on October 20, 2006, filed
the present petition, invoking their constitutional right to a speedy disposition of
their cases. They alleged therein that respondent acted with grave abuse of
discretion amounting to lack or excess of jurisdiction in not resolving expeditiously
the cases without any justification, thereby causing them to suffer grave injustice
and agony.
In its Comment,11 filed through Solicitor General Agnes VST Devanadera,
respondent maintains that it did not violate petitioners right to a speedy disposition
of their cases; that petitioners cannot resort to the remedy of mandamus because
dismissing the administrative and criminal cases against them involves respondents
exercise of discretion; and that respondent did not act with grave abuse of discretion
for failing to resolve the cases, contending that "the prosecutors assigned to these
cases are merely exercising extreme care in verifying, evaluating and assessing the
charges against petitioners to enable them to arrive at a just determination of the
cases" and that "the delay in the ongoing review is not vexatious, capricious or
oppressive."
The Issues
I. Whether the petition for mandamus is an appropriate remedy.
II. Whether respondent violated petitioners constitutional right to a speedy
disposition of their cases.
The Courts Ruling
The petition is meritorious.
First Issue:
Mandamus is the Appropriate Remedy
Ordinarily, a petition for a writ of mandamus is proper to compel the public official
concerned to perform a ministerial act which the law specifically enjoins as a duty
resulting from an office, trust or station.12 However, it is inaccurate to say that the
writ will never issue to control the public officials discretion. Our jurisprudence is
replete with exceptions to that rule. Thus, this Court held that if the questioned act
was done with grave abuse of discretion, manifest injustice or palpable excess of
authority, the writ will be issued to control the exercise of such discretion.13
Likewise, mandamus is a proper recourse for citizens who seek to enforce a public
right and to compel the performance of a public duty, most especially when
mandated by the Constitution.14 Thus, a party to a case may demand expeditious
action from all officials who are tasked with the administration of justice.15
Under the undisputed facts before us, we hold that respondent acted with grave
abuse of discretion amounting to lack or excess of jurisdiction by failing to resolve
the administrative and criminal cases against petitioners even to this day, or a
period of almost eight (8) years from the filing of their complaints- affidavits.
Second Issue:
The Right to a Speedy Disposition of Cases
"All persons shall have the right to a speedy disposition of their cases before all
judicial, quasi-judicial or administrative bodies," so the Constitution16 declares in no
uncertain terms. This right, like the right to a speedy trial, is deemed violated when
the proceedings are attended by vexatious, capricious, and oppressive delays.17
In a number of cases, this Court ruled that the right to a speedy disposition of a case
is a relative or flexible concept. A mere mathematical reckoning of the time involved
is not sufficient. Particular regard must be taken of the facts and circumstances
peculiar to each case. Hence, the doctrinal rule is that in the determination of
whether that right has been violated, the factors that may be considered and
balanced are the length of the delay, the reasons for the delay, the aggrieved
partys assertion or failure to assert such right, and the prejudice caused by the
delay.18
In determining whether these factors exist in the instant cases, let us first examine
the constitutional and statutory mandate, powers and duties of respondent.
Respondent was constitutionally created to be the "protector of the people," with the
expressed mandate that it "shall act promptly on complaints filed in any form or
manner against officers or employees of the Government, or of any subdivision,
agency or instrumentality thereof, including government-owned or controlled
corporations, and enforce their administrative, civil and criminal liability in every
case where the evidence warrants in order to promote efficient service by the
Government to the people."19
To attain its mandate, Sections 15 and 16 of Republic Act No. 6770 (The
Ombudsman Act of 1989) bestowed upon respondent broad and tremendous powers
and functions generally categorized as follows: investigatory power, prosecutory
power, disciplinary power, contempt power, public assistance functions, authority to
inquire and obtain information, and function to adopt, institute and implement
preventive measures, thus:
SEC. 15. Powers, Functions and Duties. The Office of the Ombudsman shall have the
following powers, functions and duties:
(1) Investigate and prosecute on its own or on complaint by any person, any act or
omission of any public officer or employee, office or agency, when such act or
omission appears to be illegal, unjust, improper or inefficient. It has primary
jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this
primary jurisdiction, it may take over, at any stage, from any investigatory agency of
Government, the investigation of such cases;
(2) Direct, upon complaint or at its own instance, any officer or employee of the
Government, or of any subdivision, agency or instrumentality thereof, as well as any
government-owned or controlled corporations with original charter, to perform and
expedite any act or duty required by law, or to stop, prevent, and correct any abuse
or impropriety in the performance of duties;
(3) Direct the officer concerned to take appropriate action against a public officer or
employee at fault or who neglects to perform an act or discharge a duty required by
law, and recommend his removal, suspension, demotion, fine, censure, or
prosecution, and ensure compliance therewith; or enforce its disciplinary authority
as provided in Section 21 of this Act: Provided, That the refusal by any officer
without just cause to comply with an order of the Ombudsman to remove, suspend,
demote, fine, censure, or prosecute an officer or employee who is at fault or who
neglects to perform an act or discharge a duty required by law shall be a ground for
disciplinary action against said officer;
(4) Direct the officer concerned, in ay appropriate case, and subject to such
limitations as it may provide in its rules of procedure, to furnish it with copies of
documents relating to contracts or transactions entered into by his office involving
the disbursement or use of public funds or properties, and report any irregularity to
the Commission on Audit for appropriate action;
(5) Request any government agency for assistance and information necessary in the
discharge of its responsibilities, and to examine, if necessary, pertinent records and
documents;
(6) Publicize matters covered by its investigation of the matters mentioned in
paragraphs (1), (2), (3) and (4) hereof, when circumstances so warrant and with due
prudence: Provided, That the Ombudsman under its rules and regulations may
determine what cases may not be made public: Provided, further, That any publicity
issued by the Ombudsman shall be balanced, fair and true;
(7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and
corruption in the Government, and make recommendations for their elimination and
the observance of high standards of ethics and efficiency;
(8) Administer oaths, issue subpoena and subpoena duces tecum, and take
testimony in any investigation or inquiry, including the power to examine and have
access to bank accounts and records;
(9) Punish for contempt in accordance with the Rules of Court and under the same
procedure and with the same penalties provided therein;
(10) Delegate to the Deputies, or its investigators or representatives such authority
or duty as shall ensure the effective exercise or performance of the powers,
functions, and duties herein or hereinafter provided;
(11) Investigate and initiate the proper action for the recovery of ill-gotten and/or
unexplained wealth amassed after February 25, 1986 and the prosecution of the
parties involved therein.
The Ombudsman shall give priority to complaints filed against high ranking
government officials and/or those occupying supervisory positions, complaints
involving grave offenses, as well as complaints involving large sums of money
and/or properties.
SEC. 16. Applicability. The provisions of this Act shall apply to all kinds of
malfeasance, misfeasance, and non-feasance that have been committed by any
officer or employee as mentioned in Section 13 hereof, during his tenure of office.
(Underscoring supplied)
These powers, functions and duties are aimed to enable respondent to be "a more
active and effective agent of the people in ensuring accountability in public
office."20 Unfortunately, respondent has transgressed its constitutional and
statutory duties. When the Constitution enjoins respondent to "act promptly" on any
complaint against any public officer or employee, it has the concomitant duty to
speedily resolve the same. But respondent did not act promptly or resolve speedily
petitioners cases. The Rules of Procedure of the Office of the Ombudsman requires
that the hearing officer is given a definite period of "not later than thirty (30) days"
to resolve the case after the formal investigation shall have been concluded.21
Definitely, respondent did not observe this 30-day rule.
Here, respondent did not resolve the administrative and criminal cases against
petitioners although the investigation of the said cases had long been terminated
when the latter formally offered their evidence way back on January 29, 2002. In
fact, due to respondents inaction, petitioners, on March 24, 2006 or more than four
(4) years from January 29, 2002, filed a motion praying the immediate dismissal of
all the cases against them, contending that respondents "inordinate delay" in
resolving them constitutes a violation of their constitutional right to a speedy
disposition of their cases. Significantly, this motion was never resisted by
complainant FFIB. Nonetheless, respondent did not even bother to act on the
motion. Likewise, it did not inform petitioners why the cases remain unresolved.
It is unfortunate that while petitioners exerted diligent efforts by filing several
motions urging respondent to resolve their cases speedily, respondent, up to now,
refuses to take action thereon. Clearly, respondents inaction does not only violate
petitioners right to speedy disposition of their cases guaranteed by the Constitution,
but is also opposed to its role as the vanguard in the promotion of efficient service
by the government to the people and in ensuring accountability in public office.
Considering that respondent is tasked to "determine the causes of inefficiency in
the Government, and make recommendations for (its) elimination and the
observance of high standards of ethics and efficiency,"22 its prolonged delay is
manifestly a violation of due process.
Respondents belated excuse, as alleged in its Comment on the present petition,
that the prosecutors assigned to these cases are still reviewing and evaluating them
with extreme care to arrive at a just determination is not only unreasonable but also
an afterthought. This same excuse was rejected by this Court in Duterte v.
Sandiganbayan,23 thus:
On the other hand, the Office of the Ombudsman failed to present any plausible,
special or even novel reason which could justify the four-year delay in terminating its
investigation. Its excuse for the delay the many layers of review that the case had
to undergo and the meticulous scrutiny it had to entail has lost its novelty and is
no longer appealing, as was the invocation in the Tatad case.
In Tatad v. Sandiganbayan,24 this Court dismissed the Informations pending before
the Sandiganbayan, holding that the "inordinate delay of three (3) years in
terminating the preliminary investigation and in filing the Informations violated the
constitutional right of the petitioner to due process and to a speedy disposition of
the cases against petitioner." This Court ruled:
We find the long delay in the termination of the preliminary investigation by the
Tanodbayan in the instant case to be violative of the constitutional right of the
accused to due process. Substantial adherence to the requirements of the law
governing the conduct of preliminary investigation, including substantial compliance
with the time limitation prescribed by the law for the resolution of the case by the
prosecutor, is part of the procedural due process constitutionally guaranteed by the
fundamental law. Not only under the broad umbrella of the due process clause, but
under the constitutional guarantee of "speedy disposition" of cases as embodied in
Section 16 of the Bill of Right (both in the 1973 and the 1987 Constitutions), the
inordinate delay is violative of the petitioners constitutional rights. A delay of close
to three (3) years can not be deemed reasonable or justifiable in the light of the
circumstance obtaining in the case at bar. We are not impressed by the attempt of
the Sandiganbayan to sanitize the long delay by indulging in the speculative
assumption that "the delay may be due to a painstaking and grueling scrutiny by the
Tanodbayan as to whether the evidence presented during the preliminary
investigation merited prosecution of a former high-ranking government official.
Similarly, in Roque v. Office of the Ombudsman,25 this Court held that the failure of
the Office of the Ombudsman to resolve a complaint that has been pending for six
(6) years is clearly violative of the rights of petitioners to due process and to a
speedy disposition of the cases against them. Thus, the complaints against
petitioners were dismissed. Significantly, this Court was not even persuaded by
respondents argument that the petition for mandamus became moot and academic
when the complaints were later resolved by the Office of the Ombudsman and the
Informations were filed thereafter, holding that "the same contention was rejected in
Tatad v. Sandiganbayan, wherein the Court declared that the long and unexplained
delay in the resolution of the criminal complaints against petitioners was not
corrected by the eventual filing of the Informations."
Also, in Lopez, Jr. v. Office of the Ombudsman,26 this Court dismissed the complaints
against petitioner due to the failure of the Office of the Ombudsman to resolve the
same that have been pending for almost four (4) years, ruling that such delay
clearly violates petitioners constitutional right to speedy disposition of his cases.
These are only some of the cases showing respondents disregard of the persons
constitutional right to a speedy disposition of his case. Sadly, the list of cases is
growing. This is alarming. Here, respondent, the very protector of the people,
became the perpetrator of the dictum that "justice delayed is justice denied."
Indeed, the said dictum is not a meaningless concept that can be taken for granted
by those who are tasked with the dispensation of justice.27 The constitutional
guarantee against unreasonable delay in the disposition of cases was intended to
stem the tide of disenchantment among the people in the administration of justice
by our judicial and quasi-judicial tribunals.28 The adjudication of cases must not only
be done in an orderly manner that is in accord with the established rules of
procedure, but must also be promptly decided to better serve the ends of justice.
Excessive delay in the disposition of cases renders the rights of the people
guaranteed by the Constitution and by various legislations inutile.29 The peoples
respect and confidence in the Office of the Ombudsman are measured not only by
its impartiality, fairness, and correctness of its acts, but also by its capacity to
resolve cases speedily.
WHEREFORE, we GRANT the instant petition. The administrative cases, docketed as
OMB-ADM-0-00-0415, OMB-ADM-0-00-0416, and OMB-ADM-0-00-0417, as well as the
criminal cases, docketed as OMB-0-00-0873 and OMB-0-00-0874, filed against
petitioners, are ordered DISMISSED.
SO ORDERED.
G.R. No. 181851 March 9, 2010
CAPT. WILFREDO G. ROQUERO, Petitioner,
vs. THE CHANCELLOR OF UP-MANILA; THE ADMINISTRATIVE DISCIPLINARY TRIBUNAL
(ADT) OF UP-MANILA; ATTY. ZALDY B. DOCENA; EDEN PERDIDO; ISABELLA LARA, IN
THEIR CAPACITIES AS CHAIRMAN and MEMBERS OF THE ADT; and IMELDA O.
ABUTAL, Respondents.
DECISION
PEREZ, J.:
This is a petition for review on certiorari under Rule 45 seeking to set aside the
Decision1 dated 22 March 2007, and the Resolution2 dated 1 February 2008, of the
Court of the Appeals in CA-G.R. SP No. 87776 entitled, "Capt. Wilfredo G. Roquero v.
The Chancellor of the University of the Philippine-Manila (UP Manila), et al.," a
petition for Certiorari under Rule 65 of the Rules of Civil Procedure with Prayer for
the Issuance of a Temporary Restraining Order (TRO), which sought to reverse and
set aside the Orders dated 8 June 20043 and 9 November 20044 of the
Administrative Disciplinary Tribunal (ADT) of UP-Manila, chaired by Atty. Zaldy B.
Docena with Eden Perdido and Isabella Lara as members.
The undisputed facts of the case as found by the Court of Appeals are as follows:
Petitioner Wildredo G. Roquero is an employee of UP-Manila assigned at the
Philippine General Hospital (PGH) Security Division as Special Police Captain. Private
respondent Imelda O. Abutal is a Lady Guard of Ex-Bataan Security Agency who was
applying for a position in the security force assigned at UP-PGH.
The instant controversy arose from a complaint by private respondent Abutal with
then Chancellor of UP-Manila Perla D. Santos-Ocampo for Grave Misconduct against
petitioner Capt. Roquero. The formal charge filed on 1 October 1998 and docketed
as ADM Case No. UPM-AC 97-007 reads as follows:
After preliminary investigation duly conducted in accordance with the Rules and
Regulations on the Discipline of UP Faculty and Employees, a prima facie case has
been found to exist against you for GRAVE MISCONDUCT punishable under the
University Rules and Regulations on the Discipline of UP Faculty and Employees in
relation to the Civil Service Law, committed as follows:
That you, Capt. Wilfredo Roquero of the UP Manila Police Force, sometime in April
1996, while conducting an interview on MS. IMELDA ABUTAL who was then applying
for the position of Lady Guard of Ex-Bataan Security Agency to be assigned at UP-
PGH, proposed to her that if she agreed to be your mistress, you would facilitate her
application and give her a permanent position; that despite the fact the MS. ABUTAL
rejected your proposal, you still insisted on demanding said sexual favor from her;
that you, therefore, are liable for GRAVE MISCONDUCT under Section 22, paragraph
(c) of Rule XIV of the Omnibus Rules Implementing Book V of E.O. 292 on Civil Rules.
x x x x.
On 1 October 1998, the petitioner was placed under preventive suspension for
ninety (90) days by Chancellor Santos-Ocampo, the material portion of said Order
reads:
Considering the gravity of the offense charged and pursuant to Section 19 of Rules
and Regulations on the Discipline of UP Faculty Members and Employees and Section
26 and 27 Rule XIV of Book V of Executive Order No. 292 and Omnibus Rules, you
are hereby preventively suspended for ninety (90) days effective upon receipt
hereof.
While on preventive suspension, you are hereby required to appear before the
Administrative Disciplinary Tribunal (ADT) whenever your presence is necessary.
Thereafter, the Administrative Disciplinary Tribunal (ADT) composed of Atty. Zaldy B.
Docena, Eden Perdido and Isabella Lara, was organized to hear the instant case.
Atty. Paul A. Flor, as University Prosecutor, represented the prosecution. He was later
on replaced by Atty. Asteria Felicen. Petitioner was represented by Atty. Leo G. Lee of
the Public Attorneys Office (PAO) who was then replaced by Public Attorney Philger
Inovejas.
The Prosecution presented its only witness, private respondent Abutal. After the
completion of the cross-examination on the prosecutions only witness, the
prosecution agreed to submit its Formal Offer of Evidence on or before 16 July
1999.x x x x
The prosecution, however, failed to submit its formal offer of evidence within the
period agreed upon.
Thereafter, on 10 August 1999, when the case was called, only petitioner and his
counsel appeared. Atty. Flor merely called by telephone and requested Atty. Docena
to reset the case to another date. Atty. Docena then ordered the resetting of the
hearing on the following dates: 11 August and 21 August 1999. On 11 August 1999,
only petitioner and his counsel came. No representative from the prosecution
appeared before the ADT. Atty. Flor again called and asked for the postponement of
the hearing. By reason thereof, Atty. Docena issued an Order, which reads as follows:
The continuation of the hearing of this case is hereby set to September 29, 1999 at
2:00 p.m., with the understanding that if and when the parties fail to appear at said
hearing date, this case shall be deemed submitted for resolution based on the
evidences already obtaining in the record of the case.
SO ORDERED.
11 August 1999.
On said date, the representative from the prosecution again failed to appear.
On 22 October 1999, petitioner filed a Motion through counsel praying that
complainant (private respondent herein) be declared to have waived her rights to
formally offer her exhibits since complainant was not able to file her Formal Offer
within the given period of fifteen (15) days from 1 July 1999 or up to 16 July 1999.
The ADT was not able to act on the said Motion for almost five (5) years. Due to the
unreasonable delay, petitioner, on 19 May 2004 filed another Motion asking for the
dismissal of the administrative case against him. The Motion to Dismiss was
anchored on the following reasons: that the prosecution had not formally offered its
evidence; that the ADT had failed to act on the motion filed on 22 October 1999;
that the unfounded charges in the administrative complaint were filed just to harass
him; and that he is entitled to a just and speedy disposition of the case.
On 26 May 2004, the prosecution, represented by Atty. Felicen in view of the
resignation of Atty. Flor in August 1999, filed its Comment/Opposition to the Motion
to Dismiss. The prosecution alleged that a Formal Offer of Documentary Exhibits had
been filed on 24 January 2004, of which a copy thereof was received by Atty. Lee,
petitioners counsel, on 30 January 2004, per registry return receipt. However,
petitioner has not filed his comment to the said Formal Offer.
Furthermore, the prosecution explained in its Comment/Opposition that in view of
the resignation of Atty. Flor in August 1999 but who had been on leave by mid-July
1999, the Formal Offer could not be prepared by another counsel until all the
transcript of stenographic notes have been furnished to the counsel that replaced
Atty. Flor. Meanwhile, the stenographer, Jamie Limbaga, had been in and out of the
hospital due to a serious illness, thus the delay in the filing of the prosecutors
Formal Offer of Documentary Exhibits.
On 8 June 2004, Atty. Docena issued the assailed Order denying petitioners motion
to dismiss, to wit:
Acting on respondents Motion to Dismiss, as well as the University Prosecutors
Comment and/or Opposition to said Motion, and finding that said Motion to Dismiss
to be bereft of merit, the same is hereby DENIED.
In view of the failure of the respondent to file his comment on the Prosecutions
Formal Offer of Evidence, the Exhibits ("A" to "G-1") of the Prosecution are hereby
ADMITTED for the purpose for which the same have been offered.
The respondent is hereby directed to present his evidence on June 22, 2004 at 10:30
in the morning.
SO ORDERED.
A motion for reconsideration was filed by petitioner but the same was denied in an
Order dated 9 November 2004.5
Petitioner Captain Wilfredo Roquero then filed with the Court of Appeals a Petition for
Certiorari under Rule 65, docketed as CA-G.R. SP No. 87776, alleging therein that the
ADT committed grave abuse of discretion when it denied the motion to dismiss the
administrative case filed against him.
In a Decision dated 22 March 2007, the Honorable Court of Appeals denied the
petition with prayer for TRO of Roquero reasoning that the ADT did not commit grave
abuse of discretion in issuing the assailed orders.
The Court of Appeals ruled, thus:
The main issue to be resolved is whether the ADT gravely abused its discretion
amounting to lack or excess of jurisdiction when it issued the Order denying
petitioners motion to dismiss the administrative case filed against him.
We rule in the negative.
Petitioner argues that the administrative case against him should be dismissed
because of the failure of the prosecution to file its Formal Offer of Evidence within
the agreed period.
We do not agree.
The appropriate rule in this case is Section 27 of the Uniform Rules on Administrative
Cases in the Civil Service, which provides, to wit:
When the presentation of evidence has been concluded, the parties shall formally
offer their evidence either orally or in writing and thereafter objections thereto may
also be made either orally or in writing. After which, both parties may be given time
to submit their respective memorandum which in no case shall [be] beyond five (5)
days after the termination of the investigation. Failure to submit the same within the
given period shall be considered a waiver thereof.
The failure to file a formal offer of evidence amounts to no more than a waiver of the
right to file the same. In administrative cases, particularly, where the Uniform Rules
on Administrative Cases in the Civil Service applies, the absence of a formal offer of
evidence does not bar the adverse party from presenting its evidence.
Section 3 of the Uniform Rules on Administrative Cases in the Civil Service provides:
Administrative investigations shall be conducted without necessarily adhering
strictly to the technical rules of procedure and evidence applicable to judicial
proceedings.
While under the Rules of Court, a formal offer may be indispensable because the
rules on evidence so require it, the same is not true in administrative cases. There is
no provision in the Uniform Rules on Administrative Cases in the Civil Service akin to
Section 34, Rule 132 of the Rules of Court.
Furthermore, Section 27 of the Uniform Rules states that the failure to file a formal
offer of evidence amounts to a mere waiver thereof, and not a dismissal of the
action. As such, petitioner cannot claim a vested right to a dismissal of his case
below just because a formal offer was not filed within the agreed period.
In addition thereto, the Uniform Rules give the hearing officer a leeway when it
provided that x x x the hearing officer shall accept all evidence deemed material
and relevant to the case. In case of doubt, he shall allow the admission of evidence
subject to the objection interposed against its admission.
In the case at bar, records show that in fact, a formal offer of evidence was filed by
the prosecution, a copy of which was received by petitioners counsel. The action of
the ADT in admitting the prosecutions exhibits was consistent with the above-
mentioned Rules. Thus, the tribunal acted within the bounds of its authority.
Grave abuse of discretion implies such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction, or in other words, where the power
is exercised in an arbitrary or despotic manner by reason of passion, prejudice, or
personal hostility, and it must be so patent and gross as to amount to an evasion of
a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in
contemplation of law.
To reiterate, the admission of the exhibits for the prosecution is in accordance with
Section 3, 27, and 28 of the Uniform Rules on Administrative Cases in the Civil
Service. In admitting the exhibits for the prosecution, petitioner was not denied the
opportunity to present his evidence. In fact, he could have presented his evidence
as early as 11 August 1999 but he did not do so.
WHEREFORE, for utter lack of merit, the instant petition with prayer for temporary
restraining order is hereby DENIED.6
Roquero moved for reconsideration of the Decision, but the same was likewise
denied by the Court of Appeals in its Resolution promulgated on 1 February 2008.
Roquero is now before us seeking the reversal of the decision and resolution of the
Court of Appeals.
The core issue of this case is whether the failure of the ADT to resolve Roqueros
Motion (to declare complainant Imelda Abutal to have waived her right to submit her
Formal Offer of Exhibit) which he seasonably filed on 22 October 1999 and the
assailed Order of the ADT dated 8 June 2004 admitting the Formal Offer of Exhibit of
complainant Imelda Abutal despite having filed after almost five years violated the
constitutional right of Roquero to a speedy disposition of cases.
We find merit in the petition.
The Court of Appeals faulted petitioner for his failure to present his own evidence
which "he could have done as early as 11 August 1999."7 It must be noted,
however, that petitioners 22 October 1999 motion to declare complainant to have
waived her right to submit her Formal Offer of Exhibit remained unresolved. This is
reason enough for Roquero to defer presentation of his own evidence.
Indeed, while Section 27 of the Uniform Rules on Administrative Cases in Civil
Service states that the failure to submit the formal offer of evidence within the given
period shall be considered as waiver thereof, the ADT in fact allowed the prosecution
to present its formal offer almost five (5) years later or on 24 January 2004. Starting
on that date, petitioner was presented with the choice to either present his evidence
or to, as he did, file a motion to dismiss owing to the extraordinary length of time
that ADT failed to rule on his motion.
We cannot accept the finding of the Court of Appeals that there was no grave abuse
of discretion on the part of the ADT because "a formal offer of evidence was filed by
the prosecution, a copy of which was received by petitioners counsel."8 The
admission by ADT on 8 June 2004 of the formal offer of exhibits belatedly filed did
not cure the 5-year delay in the resolution of petitioners 1999 motion to deem as
waived such formal offer of evidence. Indeed, the delay of almost five (5) years
cannot be justified.
The prosecution tried to explain in its Comment/Opposition dated 26 May 2004, that
the resignation of Atty. Paul Flor in August 1999, who had by then already been on
leave since mid-July 1999, contributed to the delay of the filing of the formal offer
and that the formal offer could not be prepared by another counsel until all the
transcripts of stenographic notes had been given to him. Also, it was pointed out
that the stenographer, Jaime Limbaga, had been in and out of the hospital due to a
serious illness.91avvphi1
The ADT admitted this explanation of the prosecutor hook, line and sinker without
asking why it took him almost five (5) years to make that explanation. If the excuses
were true, the prosecution could have easily manifested with the ADT of its
predicament right after Roquero filed his motion to declare the waiver of the formal
offer. It is evident too that the prosecution failed to explain why it took them so long
a time to find a replacement for the original prosecutor. And, the stenographer who
had been in and out of the hospital due to serious illness should have been replaced
sooner.
While it is true that administrative investigations should not be bound by strict
adherence to the technical rules of procedure and evidence applicable to judicial
proceedings,10 the same however should not violate the constitutional right of
respondents to a speedy disposition of cases.
Section 16, Article III of the 1987 Constitution provides:
Section 16. All person shall have the right to a speedy disposition of their cases
before all judicial, quasi-judicial, or administrative bodies.
The constitutional right to a "speedy disposition of cases" is not limited to the
accused in criminal proceedings but extends to all parties in all cases, including civil
and administrative cases, and in all proceedings, including judicial and quasi-judicial
hearings. Hence, under the Constitution, any party to a case may demand
expeditious action by all officials who are tasked with the administration of justice.11
The right to a speedy disposition of a case, like the right to a speedy trial, is deemed
violated only when the proceedings are attended by vexatious, capricious, and
oppressive delays; or when unjustified postponements of the trial are asked for and
secured; or even without cause or justifiable motive, a long period of time is allowed
to elapse without the party having his case tried. Equally applicable is the balancing
test used to determine whether a defendant has been denied his right to a speedy
trial, or a speedy disposition of a case for that matter, in which the conduct of both
the prosecution and the defendant is weighed, and such factors as the length of the
delay, the reasons for such delay, the assertion or failure to assert such right by the
accused, and the prejudice caused by the delay. The concept of a speedy disposition
is a relative term and must necessarily be a flexible concept.12
Hence, the doctrinal rule is that in the determination of whether that right has been
violated, the factors that may be considered and balanced are as follows: (1) the
length of delay; (2) the reasons for the delay; (3) the assertion or failure to assert
such right by the accused; and (4) the prejudice caused by the delay.13
Applying the doctrinal ruling vis-a-vis the factual milieu of this case, the violation of
the right to a speedy disposition of the case against petitioner is clear for the
following reasons: (1) the delay of almost five (5) years on the part of ADT in
resolving the motion of petitioner, which resolution petitioner reasonably found
necessary before he could present his defense; (2) the unreasonableness of the
delay; and (3) the timely assertions by petitioner of the right to an early disposition
which he did through a motion to dismiss. Over and above this, the delay was
prejudicial to petitioners cause as he was under preventive suspension for ninety
(90) days, and during the interregnum of almost five years, the trial of the
accusation against him remained stagnant at the prosecution stage.
The Constitutional guarantee against unreasonable delay in the disposition of cases
was intended to stem the tide of disenchantment among the people in the
administration of justice by our judicial and quasi-judicial tribunals.14 The
adjudication of cases must not only be done in an orderly manner that is in accord
with the established rules of procedure but must also be promptly decided to better
serve the ends of justice. Excessive delay in the disposition of cases renders the
rights of the people guaranteed by the Constitution and by various legislations
inutile.15
WHEREFORE, the Petition is hereby GRANTED. The assailed Decision dated 22 March
2007 and Resolution dated 1 February 2008 of the Court of Appeals in CA-G.R. SP
No. 87776 are hereby REVERSED and SET ASIDE. The Administrative Disciplinary
Tribunal (ADT) of the University of the Philippines-Manila, Atty. Zaldy B. Docena,
Eden Perdido and Isabella Lara, in their capacities as Chairman and Members of the
ADT respectively, are hereby ORDERED to DISMISS the administrative case against
Capt. Wilfredo G. Roquero for violation of his constitutional right to a speedy
disposition of cases. SO ORDERED.
Substance
G.R. No. L-3962 February 10, 1908
THE UNITED STATES, plaintiff-appellee,
vs. LING SU FAN, defendant-appellant.
Lionel D. Hargis and C.W. O'Brien for appellant.
Attorney-General Araneta for appellee.
JOHNSON, J.:
This defendant was accused of the offense of "exporting from the Philippine Islands
Philippine silver coins," in a complaint filed in the Court of First Instance of the city of
Manila. The complaint was in the words following:
The undersigned accuses Ling Su Fan of the criminal offense of attempting to export
Philippine silver coins from the Philippine Islands, contrary to law, committed as
follows:
That on or about the 12th day of December, 1906, in the city of Manila, Philippine
Islands, the said Ling Su Fan was freight clerk, supercargo, comprador, and person in
charge of all shipments of freight on board the steamship Taming, which said
steamship Taming was then and there about to depart from the port of Manila,
Philippine Islands, to the port of Hongkong; that the said Ling Su Fan did then and
there willfully, unlawfully, and feloniously place, conceal, and hide the sum of twenty
thousand six hundred pesos (20,600) pesos in Philippine silver coins, coined by
authority of the act of Congress approved March 2, 1903, in his stateroom on board
the said steamship Taming with the intent of exporting the said Philippine silver
coins from the Philippine Islands to the port of Hongkong, and did then and there
attempt to export the said Philippine silver coins from the Philippine Islands to the
said port of Hongkong.
Contrary to the provisions of Act No. 1411 of the Philippine Commission.
W.H. POLLEY.
Subscribed and sworn to before me and in my presence, in the city of Mania, P.I., this
20th day of December, 1906, by W.H. Polley.
A.S. CROSSFIELD,
Judge, Court of First Instance, Manila, P.I.
To this complaint the defendant presented the following demurrer:
Now comes Ling Su Fan, the accused in the above-entitled cause, through his
undersigned counsel, and demurs to the complaint filed against him herein and for
causes of demurrer respectfully shows:
1. That said complaint does not conform substantially to the prescribed form.
2. That the fact charged do not constitute a public offense.
3. That the said complaint is contrary to the provisions of the fourteenth
amendment of the Constitution of the United States of America and also contrary to
paragraph 1 of section 5 of the act of Congress of the United States of America
dated July 1, 1902.
Wherefore the defendant herein prays the court that the said complaint be
dismissed and that he, said defendant, be discharged from custody and arrest.
Manila, P.I., December 28, 1906.
LIONEL D. HARGIS,
C.W. O'BRIEN,
Attorneys for the defendant, 18 Plaza Cervantes, Manila.
Upon this demurrer the court below made the following order:
This case is before the court for hearing the demurrer to the complaint presented by
the defendant.
After examining the demurrer and the complaint, and giving the same due
consideration, I am of the opinion that the grounds of the demurrer are not well
taken.
It is therefore ordered that the demurrer be, and it is overruled.
No exception was made at the time of the overruling of the demurrer.
The defendant was duly arraigned and pleaded "not guilty." The case then
proceeded to trial.
After hearing the evidence adduced during the trial of the cause, the court below
made the following findings of fact:
That on the 12th day of December, 1906, an employee at the Manila custom-house
found on board the steamship Taming in the bunk occupied by and in the exclusive
use and control of the defendant, who was the comprador on board (said ship),
20,600 silver coins, each of 1 peso, being coins made and issued by and under the
direction of the Government of the Philippine Islands; that when the said coins were
discovered as aforesaid and the defendant was confronted with the fact he stated at
first that he knew nothing about it, and afterwards that they had been brought
aboard by different Filipinos whom he did not know and had been stored in the place
in which they were found for transportation to Hongkong; that these statements
were made by the defendant voluntarily; that the steamship Taming, on which these
coins were found, had already been cleared from the port of Manila for Hongkong
and that she was about ready to sail, and that the coins were not manifested either
in the incoming or outgoing voyage of the said vessel; that the finding of the coins
on board the said steamship Taming as before stated, was admitted by the
defendant at the trial; the bullion value of the said coins at the time they were
alleged to have left Hongkong was at least 9 percent more than their apparent face
value in the Philippine Islands.
The lower court made the following observations concerning the proof offered by the
defendant and his witnesses during the trial:
Evidence was offered on the part of the defense to the effect that the said money
was owned by a Chinaman in Hongkong, who shipped the same to the Philippine
Islands by the defendant, for the purpose of purchasing Mexican silver coins and
Spanish-Filipino silver coins, in accordance with an agreement made by the
defendant with another person in Manila, under which for 82 Philippine pesos he was
to receive 100 Spanish-Filipino pesos, and for 97 Philippine pesos he was to receive
100 pesos, Mexican currency, and in corroboration of the shipment there was
presented an insurance company at Hongkong. The defendant testified that upon
bringing the coins to Manila he ascertained that he could not purchase Mexican
coins and Spanish- Filipino coins as advantageously as he had before agreed, and in
accordance with his understanding with the owner of the Philippine silver coins, and
so decided to take the Philippine coins back to Hongkong to the owner thereof.
The lower court also made the following observations relating to the credibility of the
defendant and his witnesses:
From the appearance of the witnesses while testifying, who testified that said coins
were brought to the Philippine Islands for the purpose of buying other coins, and
from the unreasonableness of the proposition advanced by them, I am unable to
give their testimony credence. I am unable to believe that any person would send
this amount of money to the Philippine Islands from Hongkong in the care of the
defendant, who was an employee as before stated, on board the steamer Taming
without the knowledge of the owners of the vessel or its shipping agent at
Hongkong, and without the knowledge of the master of the vessel.
Upon these foregoing findings of fact and observations the lower court found the
defendant Ling Su Fan, guilty of the offense charged in the complaint, and
sentenced him to be imprisoned for a period of sixty days and to pay a fine of P200.
From that sentence the defendant appealed to this court and made the following
assignment of errors:
First. That the court below erred in overruling the demurrer presented to the
complaint by the defendant and appellant; and
Second. that the sentence of the court below was contrary to law and to the great
weight of evidence.
The appellant bases his first above assignment of error upon the third ground of the
demurrer presented by him in the court below and which the lower court overruled.
The third ground of the demurrer is as follows:
That said complaint is contrary to the provision of the fourteenth amendment of the
Constitution of the United States of America and also contrary to paragraph 1 of
section 5 of the Act of Congress of the United States of America dated July 1, 1902.
That part of the contention of the appellant which refers to the Constitution of the
United States can have no important bearing upon the present case, for the reason
that paragraph 1 of section 5 of the said act of Congress dated July 1, 1902, is
almost exactly in the same phraseology as a portion of the fourteenth amendment
to the Constitution of the United States, and therefore, decisions of the Supreme
Court of the United States in construing said fourteenth amendment, may be
referred to for the purpose of ascertaining what was intended by Congress in
enacting said paragraph 1 of section 5, and what laws the Philippine Commission
may make under its provisions.
Paragraph 1 of section 5 of the said act of Congress is as follows:
That no law shall be enacted in said Islands which shall deprive any person of life,
liberty, or property without due process of law, or deny to any person therein the
equal protection of the laws.
It will be noted that this amendment does not prohibit the enactment of laws by the
legislative department of the Philippine Government, depriving persons, of life,
liberty, or property. It simply provides that laws shall not be enacted which shall
deprive persons of life, liberty, or property without due process of law. The question,
then, is presented, Is the act under which the defendant is prosecuted here and
under which it is sought to deprive him of the money which it is alleged he
attempted to illegally export, in accordance with due process of law?
The Congress of the United States, on the 2d day of March, 1903, passed an act
entitled "An act to establish a standard value and to provide for a coinage system in
the Philippine Islands." Section 6 of said act is as follows:
SEC. 6. That the coinage authorized by this act shall be subject to the conditions
and limitations of the provisions of the act of July first, nineteen hundred and two,
entitled "An act temporarily to provide for the administration of the affairs of civil
government in the Philippine Islands, and for other purposes," except as herein
otherwise provided; and the Government of the Philippine Islands may adopt such
measures as it may deem proper, not inconsistent with said act of July first, nineteen
hundred and two, to maintain the value of the silver Philippine peso at the rate of
one gold peso, and in order to maintain such parity between said silver Philippine
pesos and the gold pesos herein provided for . . .
In pursuance to the authority granted in said section 6, to wit, "the Government of
the Philippine Islands may adopt such measures as it may deem proper, ... to
maintain the value of the silver Philippine peso at the rate of one gold peso ..." the
Civil Commission enacted Act No. 1411, dated November 17, 1905, which act was
entitled "An act for the purpose of maintaining the parity of the Philippine currency
in accordance with the provisions of sections one and six of the act of Congress
approved March second, nineteen hundred and three, by prohibiting the exportation
from the Philippine Islands of Philippine silver coins, and for other purposes."
Section 1 and 2 of the said act of the Civil Commission are as follows:
SECTION 1. The exportation from the Philippine Islands of Philippine silver
coins, coined by authority of the act of Congress approved March second, nineteen
hundred and three, or of bullion made by melting or otherwise mutilating such coins,
is hereby prohibited, and any of the aforementioned silver coins or bullion which is
exported, or of which the exportation is attempted subsequent to the passage of this
act, and contrary to its provisions, shall be liable to forfeiture under due process of
law, and one-third of the sum or value of bullion so forfeited shall be payable to the
person upon whose information, given to the proper authorities, the seizure of the
money or bullion so forfeited is made, and the other two-thirds shall be payable to
the Philippine Government, and accrue to the gold-standard fund: Provided, That the
prohibition herein contained shall not apply to sums of twenty-five pesos or less,
carried by passengers leaving the Philippine Islands.
SEC. 2. The exportation or the attempt to export Philippine silver coins, or bullion
made from such coins, from the Philippine Islands contrary to law is hereby declared
to be a criminal offense, punishable, in addition to the forfeiture of said coins or
bullion as above provided, by a fine not to exceed ten thousand pesos, or by
imprisonment for a period not to exceed one year, or both in the discretion of the
court.
It will be noted that the Civil Commission expressly relied upon the act of Congress
of March 2, 1903, for its authority in enacting said Act No. 1411.
Under the question above suggested it becomes important to determine what
Congress intended by the phrase "due process of law." This phrase has been
discussed a great many times by the Supreme Court of the United States, as well as
by writers upon questions of constitutional law. This same idea, is couched in
different language in the different constitutions of the different States of the Union.
In some, the phrase is "the law of the land." In others, "due course of law". These
different phrases, however, have been given practically the same definition by the
different courts which have attempted an explanation of them. The phrase "due
process of law" was defined by Judge Story, in his work on Constitutional Law, as
"the law in its regular course of administration through the courts of justice."
Judge Cooley, in his work on Constitutional Limitations, says:
Due process of law in each particular case means such an exertion of the powers of
the government as the settled maxims of law permit and sanction, and under such
safeguards for the protection of individual rights as those maxims prescribed for the
class of cases to which the one in question belongs.
The famous constitutional lawyer Daniel Webster, in his argument before the
Supreme Court of the United States in the case of Dartmouth College vs. Woodward
(4 Wheaton, 518), gave a definition of this phrase which the Supreme Court of the
United States quoted and adopted. It was:
By the law of the land is more clearly intended the general law, a law which hears
before it condemns, which proceeds upon inquiry and renders judgment only after
trial. The meaning is that every citizen shall hold his life, liberty, property, and
immunities under the protection of the general rules which govern society.
Everything which may pass under the form of an enactment is not, therefore, to be
considered the law of the land.
There are but few phrases in the Constitution of the United States which have
received more attention by the courts of the United States, in an endeavor to
ascertain their true meaning, than have been given to this expression "due process
of law." Recently a volume has been published devoted entirely to the meaning of
this phrase.
"Due process of law" is process or proceedings according to the law of the land.
"Due process of law" is not that the law shall be according to the wishes of all the
inhabitants of the state, but simply
First. That there shall be a law prescribed in harmony with the general powers of the
legislative department of the Government;
Second. That this law shall be reasonable in its operation;
Third. That it shall be enforced according to the regular methods of procedure
prescribed; and
Fourth. That it shall be applicable alike to all the citizens of the state or to all of a
class.
When a person is deprived of his life or liberty or property, therefore, under a law
prescribed by the proper lawmaking body of the state and such law is within the
power of said department to make and is reasonable, and is then enforced according
to the regular methods of procedure prescribed, and is applicable alike to all the
citizens or to all citizens of a particular class within the state, such person is not
deprived of his property or of his life, or of his liberty without due process of law.
When life, liberty, and property are in question there must be in every instance
judicial proceedings, and that the requirement implies a written accusation and
hearing before an impartial tribunal with proper jurisdiction, an opportunity to
defend and a conviction and a judgment before punishment can be inflicted,
depriving one of his life, liberty or property. (Story on the Constitution, 5th ed., secs.
1943-1946; Principles of Constitutional Law, Cooley, 434).
Such have been the views of able jurists and statesmen, and the deduction is that
life, liberty, and property are placed under the protection of known and established
principles which can not be dispensed with either generally or specially, either by
the courts or executive officers or by the legislative department of the Government
itself. Different principles are applicable in different cases and require different forms
of procedure; in some, they must be judicial; in others the Government may
interfere directly and ex parte; but in each particular case "due process of law"
means such an exercise of the powers of the Government as the settled maxims of
law permit and sanction and under such safeguards for the protection of the
individual rights as those maxims prescribed have to the class of cases to which the
one being dealt with belongs. (Principles of Constitutional Law, Cooley, 434).
Illustrations might be given indefinitely, showing how the Supreme Court of the
United States as well as the courts of the different States of the Union have applied
this general doctrine. The question is fully discussed in the following cases:
"Murray's Lessee vs. Hoboken Land Co. (18 How., 272), Dartmouth College, vs.
Woodward (4 Wheaton, 518), Bank of Columbia vs. Okley (4 Wheaton, 235), Walker
vs. Sauvinet (92 U.S. 90), Cooley's Constitutional Limitations (Chap. SI), Story on the
Constitution (secs. 1943-1946), Milligan's Case (4 Wallace, 2), Davidson vs. New
Orleans (96 U.S., 97), Slaughter-House Cases (16 Wallace, 36), and French vs. Barber
Asphalt Paving Co. (181, U.S., 324), which contains a historic discussion of the
general meaning of this phrase.
In the present case the following facts may be noted:
First. That the Civil Commission on the 17th day of November, 1905, regularly and
under the methods prescribed by law, enacted Act No. 1411, providing for the
punishment of all persons who should export or attempt to export from the
Philippine Islands Philippine silver coins.
Second. That this law had been enacted and published nearly eleven months before
the commission of the alleged offense by the defendant.
Third. That a complaint was duly presented, in writing, in a court regularly
organized, having jurisdiction of the offense under the said law, and the defendant
was duly arrested and brought before the court and was given an opportunity to
defend himself against the said charges.
Fourth. That the defendant was regularly tried, being given the opportunity to hear
and see and to cross-examine the witnesses presented against him and to present
such witnesses presented against him and to present such witnesses in his own
defense as he deemed necessary and advisable.
Fifth. That after such trial the said court duly sentenced the defendant, complying
with all the prescribed rules of procedure established.
Sixth. That said Act No. 1411 was duly enacted by the Philippine Commission in
pursuance of express authority given said Commission by the Congress of the United
States in an act duly approved March 2, 1903.
A question remaining is, Did the Civil Commission have the authority to enact said
Act No. 1411? Certainly said Commission is limited in its powers. As Daniel Webster
said in the famous Dartmouth College case:
Everything which may pass under the forms of an enactment is not to be considered
the law of the land. If this were so, acts of attainder, bills of pains and penalties, acts
of confiscation, acts reversing judgments, and acts directing and transferring one
man's estate to another, legislative judgments, decrees, and forfeitures in all
possible forms would be the law of the land. Such a strange construction would
render constitutional provisions of the highest importance completely inoperative
and void. It would tend directly to establish the union of all the powers in the
legislature. There would be no general permanent law for the courts to administer or
men to live under. The administration of justice would be an empty form, an idle
ceremony. Judges would sit to execute legislative judgments and decrees, but not to
declare the law or to administer the justice of the country.
But notwithstanding the limitations upon the power of the Commission, there are
certain powers which legislative departments of Government may exercise and
which can not be limited. These are known as the police power of the state. The
police power of the state has been variously defined. It has been defined as the
powers of government, inherent in every sovereignty (License Cases, 5 Howard,
583); the power vested in the legislature to make such laws as they shall judge to be
for the good of the state and its subjects (Commonwealth vs. Alger, 7 Cushing,
Mass., 85); the powers to govern men and things, extending to the protection of the
lives, limbs, health, comfort, and quiet of all persons and the protection of all
property within the state (Thorpe vs. Rutland and B. R. Co., 27 Vermont, 149); the
authority to establish such rules and regulations for the conduct of all persons as
may be conducive to the public interests (People vs. Budd, 117 New York, 14). This
question of what constitutes police power has been discussed for many years by the
courts of last resort in the various States and by many eminent law writers.
Blackstone, in his Commentaries upon the common law, defines police power as:
The defense, regulation, and domestic order of the country whereby the inhabitants
of a state like members of a well-governed family, are bound to conform their
general behaviour to the rules of propriety, good neighborhood and good manners,
and to be decent, industrious, and inoffensive in their respective stations. (4
Blackstone's Commentaries, 162.)
Chief Justice Shaw in the case of the Commonwealth vs. Alger (7 Cushing, 53, 84),
said:
We think it is a settled principle, growing out of the nature of well-ordered civil
society, that every holder of property, however absolute and unqualified may be his
title, holds it under the implied liability that his use of it shall not be injurious to the
equal enjoyment of others having equal rights to the enjoyment of their property,
nor injurious to the rights of the community ... . Rights of property like all other
social and conventional rights are subject to such reasonable limitations in their
enjoyment as shall prevent them from being injurious, and to such reasonable
restraints and regulations established by law as the legislature, under the governing
and controlling power vested in them by the constitution, may think necessary and
expedient.
The police power of the state may be said to embrace the whole system of internal
regulation, by which the state seeks not only to preserve the public order and to
prevent offenses against the state but also to establish for the intercourse of citizens
with citizens those rules of good manners and good neighborhood which are
calculated to prevent a conflict of rights and to insure to each the uninterrupted
enjoyment of his own, so far as is reasonably consistent with a like enjoyment of
rights by others. The police power of the state includes not only public health and
safety but also the public welfare, protection against impositions, and generally the
public's best interest. It is so extensive and all pervading that courts refuse to lay
down a general rule defining it, but decide each specific case on its own merits
(Harding vs. People, 32 Lawyers' Rep. Ann., 445). This power has been exercised by
the state in controlling and regulating private business even to the extent of the
destruction of property of private persons when the use of such property became a
nuisance to public health and convenience. (Slaughter-House Cases, 16 Wallace, 36;
Minnesota vs. Barber, 136 U.S., 313; Powell vs. Pennsylvania, 127 U.S., 678; Walling
vs. Michigan, 116 U.S., 446; Duncan vs. Missouri, 1252 U.S., 377; Morgan, etc., vs.
The Board of Health, 118 U.S., 455; Jacobson vs. Mass., Feb. 20, 1905.)
The state not only has authority under its police power to make such needful rules
and regulations for the protection of the health of its citizens as it may deem
necessary; it may also regulate private business in a way so that the business of one
man shall in no way become a nuisance to the people of the state. It may regulate
the sale and use of intoxicating liquors, the sale of poisons, the sale of foods, etc.,
and it would seem that nothing is of greater importance to the safety of the state, in
addition to the regulation of the morals health of its people, than to regulate and
control its own money. In addition to the fact that said Act No. 1411 was enacted in
accordance with express permission given by the Congress of the United States, this
court has already decided, in the case of Gaspar vs. Molina (5 Phil. Rep., 197), that
the Philippine Commission possesses general powers of legislation for the Islands,
and its laws are valid unless they are prohibited by some act of Congress, some
provision of the Constitution, or some provision of treaty.
We are of opinion, and so hold, that Act No. 1411 was enacted by the Philippine
Commission with full power and authority so to do. We are of opinion, therefore, and
so hold, that the lower court committed no error in overruling the demurrer
presented by the defendant.
With reference to the second assignment of error above noted, relating to the
sufficiency of the proof adduced during the trial of the cause, we are of opinion, and
so hold, that the evidence adduced during the trial of the cause was sufficient to
justify the findings of fact and the conclusions of the lower court.
An examination of the evidence adduced during the trial of the cause in the lower
court shows the following facts to be true:
1. That on the 12th day of December, 1906, on board the steamship Taming,
after the said ship had raised anchor and was ready to sail out of the harbor of
Manila for the port of Hongkong, there was found in the room occupied by the
defendant the sum of 20,600 Philippine silver pesos, coined by authority of the act
of Congress of the United States, March 2, 1903.
2. That the defendant was confronted with the fact that this amount of said
money was found in his room, and that he then and there stated that the same had
been brought into his room by a Filipino whose name he was unable to give; and
that he did not know why the money had been placed there.
3. The money was not on the manifest of the ship when she came into the
harbor some days before the said 12th day of December, neither was the said
money on the manifest of the ship which had already been prepared for the trip to
Hongkong on the said 12th day of December. The said money was taken charge by
W. H. Polley, a detective of the custom secret service of Manila, and was turned over
to the Treasurer of the Philippine Islands. The defendant was duly arrested and
charged with the crime of attempting to export Philippine silver coin from the
Philippine Islands contrary to law.

At the trial of the cause the defendant attempted to show that he had brought the
money in question from Hongkong to be exchanged for certain Mexican coin and
Spanish coin in Manila. These statements of the defendant were corroborated by a
Chinaman called Wong Tai from Hongkong, and also by testimony of Juan On Hieng
of Manila. The said Wong Tai testified that he had sent the said P20,600 from
Hongkong to Manila on the said steamship Taming, for the purpose of buying of the
said Juan On Hieng old Spanish silver and Mexican silver; that said money was sent
in the care of the defendant.

In support of the statements of Wong Tai the defendant presented an insurance

policy or a duplicate copy of an insurance policy alleged to have been issued by a
certain Japanese insurance company doing business in the city of Hongkong. No
proof was offered however to show that said duplicate copy of an insurance policy
had actually been issued by said company. The prosecuting attorney of the city of
Manila objected to the introduction of the said duplicate policy upon the ground that
it had not been sufficiently identified. This objection was overruled. No evidence was
presented to show that said company ever, as a matter of fact, issued the policy. In
the absence of proof showing that the document had been issued by the proper
authorities, the same should not have been admitted in evidence. The duplicate
policy did not prove itself. It was dated on the 4th day of December, 1906. In support
of the testimony of Wong Tai, the defendant also presented Juan On Hieng as a
witness. This witness testified that he had an arrangement with Wong Tai to
exchange with him at a certain rate Spanish silver coin and Mexican silver coin for
Philippine silver pesos, and that he had an arrangement with a certain Filipino in
Manila from whom he was to purchase said Spanish and Mexican coin. He could not
remember, however, the name of the Filipino from whom he was to purchase said
coins; neither could he describe him, nor could he tell where the said Filipino
resided. We do not believe the statements of these witnesses notwithstanding the
fact that they seem to corroborate the statements of the defendant. Courts should
not lightly regard the statements of witnesses under oath, but nevertheless when
the testimony of witnesses seems to be unreasonable from every standpoint it
should be weighed with care, when it comes loaded with the temptations of private
interests and the impressions of personal penalties; if the defendant had not been
guilty of attempting to violate the law, there would have been no occasion for him to
have stated at the time the money was found in his room what were the true facts,
and then there would have been no difference between his statements then and the
statements he made at the time of the trial. These conflicting statements lend much
suspicion to the veracity of the defendant as well as to the truth of the statements
of the witnesses called in his behalf. The evidence also shows that Philippine silver
coin was worth, at the time the coins in question were shipped, about 9 percent
more in bullion than they were as money.

For all of the foregoing reasons, we are of the opinion, and so hold, that the
sentence of the lower court should be affirmed with costs. So ordered.
Lochner v. New York (No. 292)
The general right to make a contract in relation to his business is part of the liberty
protected by the Fourteenth Amendment, and this includes the right to purchase
and sell labor, except as controlled by the State in the legitimate exercise of its
police power.
Liberty of contract relating to labor includes both parties to it; the one has as much
right to purchase as the other to sell labor.
There is no reasonable ground, on the score of health, for interfering with the liberty
of the person or the right of free contract, by determining the hours of labor, in the
occupation of a baker. Nor can a law limiting such hours be justified a a health law to
safeguard the public health, or the health of the individuals following that
occupation.
Section 110 of the labor law of the State of New York, providing that no employes
shall be required or permitted to work in bakeries more than sixty hours in a week,
or ten hours a day, is not a legitimate exercise of the police power of the State, but
an unreasonable, unnecessary and arbitrary interference with the right and liberty of
the individual to contract in relation to labor, and, as such, it is in conflict with, and
void under, the Federal Constitution.
This is a writ of error to the County Court of Oneida County, in the State of New York
(to which court the record had been remitted), to review the judgment of the Court
of Appeal of that State affirming the judgment of the Supreme Court, which itself
affirmed the judgment of the County Court, convicting the defendant of a
misdemeanor on an indictment under a statute of that State, known, by its short
title, as the labor [p46] law. The section of the statute under which the indictment
was found is section 110, and is reproduced in the margin, [*] (together with the
other sections of the labor law upon the subject of bakeries, being sections 111 to
115, both inclusive). The indictment averred that the defendant
wrongfully and unlawfully required and permitted an employee working for him in
his biscuit, bread and cake bakery and confectionery establishment, at the city of
Utica, in this county, to work more than sixty hours in one week, after having been
theretofore convicted of a violation of the same act, and therefore, as averred, he
committed the crime or misdemeanor, second offense. The plaintiff in error
demurred to the indictment on several grounds, one of which was that the facts
stated did not [p47] constitute a crime. The demurrer was overruled, and the
plaintiff in error having refused to plead further, a plea of not guilty was entered by
order of the court and the trial commenced, and he was convicted of misdemeanor,
second offense, as indicted, and sentenced to pay a fine of $50 and to stand
committed until paid, not to exceed fifty days in the Oneida County jail. A certificate
of reasonable doubt was granted by the county judge of Oneida County, whereon an
appeal was taken to the Appellate Division of the Supreme Court, Fourth
Department, where the judgment of conviction was affirmed. 73 App.Div.N.Y. 120. A
further appeal was then taken to the Court of Appeals, where the judgment of
conviction was again affirmed. 177 N.Y. 145. [p52]
PECKHAM, J., Opinion of the Court
MR. JUSTICE PECKHAM, after making the foregoing statement of the facts, delivered
the opinion of the court.
The indictment, it will be seen, charges that the plaintiff in error violated the one
hundred and tenth section of article 8, chapter 415, of the Laws of 1897, known as
the labor law of the State of New York, in that he wrongfully and unlawfully required
and permitted an employee working for him to work more than sixty hours in one
week. There is nothing in any of the opinions delivered in this case, either in the
Supreme Court or the Court of Appeals of the State, which construes the section, in
using the word "required," as referring to any physical force being used to obtain the
labor of an employee. It is assumed that the word means nothing more than the
requirement arising from voluntary contract for such labor in excess of the number
of hours specified in the statute. There is no pretense in any of the opinions that the
statute was intended to meet a case of involuntary labor in any form. All the
opinions assume that there is no real distinction, so far as this question is
concerned, between the words "required" and "permitted." The mandate of the
statute that "no employee shall be required or permitted to work," is the substantial
equivalent of an enactment that "no employee shall contract or agree to work,"
more than ten hours per day, and, as there is no provision for special emergencies,
the statute is mandatory in all cases. It is not an act merely fixing the number of
hours which shall constitute a legal day's work, but an absolute prohibition upon the
employer's permitting, under any circumstances, more than ten hours' work to be
done in his establishment. The employee may desire to earn the extra money which
would arise from his working more than the prescribed [p53] time, but this statute
forbids the employer from permitting the employee to earn it.
The statute necessarily interferes with the right of contract between the employer
and employes concerning the number of hours in which the latter may labor in the
bakery of the employer. The general right to make a contract in relation to his
business is part of the liberty of the individual protected by the Fourteenth
Amendment of the Federal Constitution. Allgeyer v. Louisiana, 165 U.S. 578. Under
that provision, no State can deprive any person of life, liberty or property without
due process of law. The right to purchase or to sell labor is part of the liberty
protected by this amendment unless there are circumstances which exclude the
right. There are, however, certain powers, existing in the sovereignty of each State
in the Union, somewhat vaguely termed police powers, the exact description and
limitation of which have not been attempted by the courts. Those powers, broadly
stated and without, at present, any attempt at a more specific limitation, relate to
the safety, health, morals and general welfare of the public. Both property and
liberty are held on such reasonable conditions as may be imposed by the governing
power of the State in the exercise of those powers, and with such conditions the
Fourteenth Amendment was not designed to interfere. Mugler v. Kansas, 123 U.S.
623; In re Kemmler, 136 U.S. 436; Crowley v. Christensen, 137 U.S. 86; In re
Converse, 137 U.S. 624.
The State therefore has power to prevent the individual from making certain kinds of
contracts, and, in regard to them, the Federal Constitution offers no protection. If the
contract be one which the State, in the legitimate exercise of its police power, has
the right to prohibit, it is not prevented from prohibiting it by the Fourteenth
Amendment. Contracts in violation of a statute, either of the Federal or state
government, or a contract to let one's property for immoral purposes, or to do any
other unlawful act, could obtain no protection from the Federal Constitution as
coming under the liberty of [p54] person or of free contract. Therefore, when the
State, by its legislature, in the assumed exercise of its police powers, has passed an
act which seriously limits the right to labor or the right of contract in regard to their
means of livelihood between persons who are sui juris (both employer and
employee), it becomes of great importance to determine which shall prevail -- the
right of the individual to labor for such time as he may choose or the right of the
State to prevent the individual from laboring or from entering into any contract to
labor beyond a certain time prescribed by the State.
This court has recognized the existence and upheld the exercise of the police powers
of the States in many cases which might fairly be considered as border ones, and it
has, in the course of its determination of questions regarding the asserted invalidity
of such statutes on the ground of their violation of the rights secured by the Federal
Constitution, been guided by rules of a very liberal nature, the application of which
has resulted, in numerous instances, in upholding the validity of state statutes thus
assailed. Among the later cases where the state law has been upheld by this court is
that of Holden v. Hardy, 169 U.S. 366. A provision in the act of the legislature of Utah
was there under consideration, the act limiting the employment of workmen in all
underground mines or workings to eight hours per day "except in cases of
emergency, where life or property is in imminent danger." It also limited the hours of
labor in smelting and other institutions for the reduction or refining of ores or metals
to eight hours per day except in like cases of emergency. The act was held to be a
valid exercise of the police powers of the State. A review of many of the cases on the
subject, decided by this and other courts, is given in the opinion. It was held that the
kind of employment, mining, smelting, etc., and the character of the employes in
such kinds of labor, were such as to make it reasonable and proper for the State to
interfere to prevent the employees from being constrained by the rules laid down by
the proprietors in regard to labor. The following citation [p55] from the observations
of the Supreme Court of Utah in that case was made by the judge writing the opinion
of this court, and approved:
The law in question is confined to the protection of that class of people engaged in
labor in underground mines and in smelters and other works wherein ores are
reduced and refined. This law applies only to the classes subjected by their
employment to the peculiar conditions and effects attending underground mining
and work in smelters and other works for the reduction and refining of ores.
Therefore it is not necessary to discuss or decide whether the legislature can fix the
hours of labor in other employments.
It will be observed that, even with regard to that class of labor, the Utah statute
provided for cases of emergency wherein the provisions of the statute would not
apply. The statute now before this court has no emergency clause in it, and, if the
statute is valid, there are no circumstances and no emergencies under which the
slightest violation of the provisions of the act would be innocent. There is nothing in
Holden v. Hardy which covers the case now before us. Nor does Atkin v. Kansas, 191
U.S. 207, touch the case at bar. The Atkin case was decided upon the right of the
State to control its municipal corporations and to prescribe the condition upon which
it will permit work of a public character to be done for a municipality. Knoxville Iron
Co. v. Harbison, 183 U.S. 13, is equally far from an authority for this legislation. The
employees in that case were held to be at a disadvantage with the employer in
matters of wages, they being miners and coal workers, and the act simply provided
for the cashing of coal orders when presented by the miner to the employer.
The latest case decided by this court involving the police power is that of Jacobson v.
Massachusetts, decided at this term and reported in 197 U.S. 11. It related to
compulsory vaccination, and the law was held valid as a proper exercise of the
police powers with reference to the public health. It was stated in the opinion that it
was a case
of an adult who, for aught that appears, was himself in perfect health and a fit [p56]
subject for vaccination, and yet, while remaining in the community, refused to obey
the statute and the regulation adopted in execution of its provisions for the
protection of the public health and the public safety, confessedly endangered by the
presence of a dangerous disease.
That case is also far from covering the one now before the court.
Petit v. Minnesota, 177 U.S. 164, was upheld as a proper exercise of the police power
relating to the observance of Sunday, and the case held that the legislature had the
right to declare that, as matter of law, keeping barber shops open on Sunday was
not a work of necessity or charity.
It must, of course, be conceded that there is a limit to the valid exercise of the police
power by the State. There is no dispute concerning this general proposition.
Otherwise the Fourteenth Amendment would have no efficacy, and the legislatures
of the States would have unbounded power, and it would be enough to say that any
piece of legislation was enacted to conserve the morals, the health or the safety of
the people; such legislation would be valid no matter how absolutely without
foundation the claim might be. The claim of the police power would be a mere
pretext -- become another and delusive name for the supreme sovereignty of the
State to be exercised free from constitutional restraint. This is not contended for. In
every case that comes before this court, therefore, where legislation of this
character is concerned and where the protection of the Federal Constitution is
sought, the question necessarily arises: is this a fair, reasonable and appropriate
exercise of the police power of the State, or is it an unreasonable, unnecessary and
arbitrary interference with the right of the individual to his personal liberty or to
enter into those contracts in relation to labor which may seem to him appropriate or
necessary for the support of himself and his family? Of course, the liberty of contract
relating to labor includes both parties to it. The one has as much right to purchase
as the other to sell labor.
This is not a question of substituting the judgment of the [p57] court for that of the
legislature. If the act be within the power of the State, it is valid although the
judgment of the court might be totally opposed to the enactment of such a law. But
the question would still remain: is it within the police power of the State?, and that
question must be answered by the court.
The question whether this act is valid as a labor law, pure and simple, may be
dismissed in a few words. There is no reasonable ground for interfering with the
liberty of person or the right of free contract by determining the hours of labor in the
occupation of a baker. There is no contention that bakers as a class are not equal in
intelligence and capacity to men in other trades or manual occupations, or that they
are able to assert their rights and care for themselves without the protecting arm of
the State, interfering with their independence of judgment and of action. They are in
no sense wards of the State. Viewed in the light of a purely labor law, with no
reference whatever to the question of health, we think that a law like the one before
us involves neither the safety, the morals, nor the welfare of the public, and that the
interest of the public is not in the slightest degree affected by such an act. The law
must be upheld, if at all, as a law pertaining to the health of the individual engaged
in the occupation of a baker. It does not affect any other portion of the public than
those who are engaged in that occupation. Clean and wholesome bread does not
depend upon whether the baker works but ten hours per day or only sixty hours a
week. The limitation of the hours of labor does not come within the police power on
that ground.
It is a question of which of two powers or rights shall prevail -- the power of the State
to legislate or the right of the individual to liberty of person and freedom of contract.
The mere assertion that the subject relates though but in a remote degree to the
public health does not necessarily render the enactment valid. The act must have a
more direct relation, as a means to an end, and the end itself must be appropriate
and legitimate, before an act can be held to be valid which interferes [p58] with the
general right of an individual to be free in his person and in his power to contract in
relation to his own labor.
This case has caused much diversity of opinion in the state courts. In the Supreme
Court, two of the five judges composing the Appellate Division dissented from the
judgment affirming the validity of the act. In the Court of Appeals, three of the seven
judges also dissented from the judgment upholding the statute. Although found in
what is called a labor law of the State, the Court of Appeals has upheld the act as
one relating to the public health -- in other words, as a health law. One of the judges
of the Court of Appeals, in upholding the law, stated that, in his opinion, the
regulation in question could not be sustained unless they were able to say, from
common knowledge, that working in a bakery and candy factory was an unhealthy
employment. The judge held that, while the evidence was not uniform, it still led him
to the conclusion that the occupation of a baker or confectioner was unhealthy, and
tended to result in diseases of the respiratory organs. Three of the judges dissented
from that view, and they thought the occupation of a baker was not to such an
extent unhealthy as to warrant the interference of the legislature with the liberty of
the individual.
We think the limit of the police power has been reached and passed in this case.
There is, in our judgment, no reasonable foundation for holding this to be necessary
or appropriate as a health law to safeguard the public health or the health of the
individuals who are following the trade of a baker. If this statute be valid, and if,
therefore, a proper case is made out in which to deny the right of an individual, sui
juris, as employer or employee, to make contracts for the labor of the latter under
the protection of the provisions of the Federal Constitution, there would seem to be
no length to which legislation of this nature might not go. The case differs widely, as
we have already stated, from the expressions of this court in regard to laws of this
nature, as stated in Holden v. Hardy and Jacobson v. Massachusetts, supra. [p59]
We think that there can be no fair doubt that the trade of a baker, in and of itself, is
not an unhealthy one to that degree which would authorize the legislature to
interfere with the right to labor, and with the right of free contract on the part of the
individual, either as employer or employee. In looking through statistics regarding all
trades and occupations, it may be true that the trade of a baker does not appear to
be as healthy as some other trades, and is also vastly more healthy than still others.
To the common understanding, the trade of a baker has never been regarded as an
unhealthy one. Very likely, physicians would not recommend the exercise of that or
of any other trade as a remedy for ill health. Some occupations are more healthy
than others, but we think there are none which might not come under the power of
the legislature to supervise and control the hours of working therein if the mere fact
that the occupation is not absolutely and perfectly healthy is to confer that right
upon the legislative department of the Government. It might be safely affirmed that
almost all occupations more or less affect the health. There must be more than the
mere fact of the possible existence of some small amount of unhealthiness to
warrant legislative interference with liberty. It is unfortunately true that labor, even
in any department, may possibly carry with it the seeds of unhealthiness. But are we
all, on that account, at the mercy of legislative majorities? A printer, a tinsmith, a
locksmith, a carpenter, a cabinetmaker, a dry goods clerk, a bank's, a lawyer's or a
physician's clerk, or a clerk in almost any kind of business, would all come under the
power of the legislature on this assumption. No trade, no occupation, no mode of
earning one's living could escape this all-pervading power, and the acts of the
legislature in limiting the hours of labor in all employments would be valid although
such limitation might seriously cripple the ability of the laborer to support himself
and his family. In our large cities there are many buildings into which the sun
penetrates for but a short time in each day, and these buildings are occupied by
people carrying on the [p60] business of bankers, brokers, lawyers, real estate, and
many other kinds of business, aided by many clerks, messengers, and other
employs. Upon the assumption of the validity of this act under review, it is not
possible to say that an act prohibiting lawyers' or bank clerks, or others from
contracting to labor for their employers more than eight hours a day would be
invalid. It might be said that it is unhealthy to work more than that number of hours
in an apartment lighted by artificial light during the working hours of the day; that
the occupation of the bank clerk, the lawyer's clerk, the real estate clerk, or the
broker's clerk in such offices is therefore unhealthy, and the legislature, in its
paternal wisdom, must therefore have the right to legislate on the subject of, and to
limit the hours for, such labor, and, if it exercises that power and its validity be
questioned, it is sufficient to say it has reference to the public health; it has
reference to the health of the employees condemned to labor day after day in
buildings where the sun never shines; it is a health law, and therefore it is valid, and
cannot be questioned by the courts.
It is also urged, pursuing the same line of argument, that it is to the interest of the
State that its population should be strong and robust, and therefore any legislation
which may be said to tend to make people healthy must be valid as health laws,
enacted under the police power. If this be a valid argument and a justification for
this kind of legislation, it follows that the protection of the Federal Constitution from
undue interference with liberty of person and freedom of contract is visionary
wherever the law is sought to be justified as a valid exercise of the police power.
Scarcely any law but might find shelter under such assumptions, and conduct,
properly so called, as well as contract, would come under the restrictive sway of the
legislature. Not only the hours of employees, but the hours of employers, could be
regulated, and doctors, lawyers, scientists, all professional men, as well as athletes
and artisans, could be forbidden to fatigue their brains and bodies by prolonged
hours of exercise, lest the fighting strength [p61] of the State be impaired. We
mention these extreme cases because the contention is extreme. We do not believe
in the soundness of the views which uphold this law. On the contrary, we think that
such a law as this, although passed in the assumed exercise of the police power, and
as relating to the public health, or the health of the employees named, is not within
that power, and is invalid. The act is not, within any fair meaning of the term, a
health law, but is an illegal interference with the rights of individuals, both
employers and employees, to make contracts regarding labor upon such terms as
they may think best, or which they may agree upon with the other parties to such
contracts. Statutes of the nature of that under review, limiting the hours in which
grown and intelligent men may labor to earn their living, are mere meddlesome
interferences with the rights of the individual, and they are not saved from
condemnation by the claim that they are passed in the exercise of the police power
and upon the subject of the health of the individual whose rights are interfered with,
unless there be some fair ground, reasonable in and of itself, to say that there is
material danger to the public health or to the health of the employees if the hours of
labor are not curtailed. If this be not clearly the case, the individuals whose rights
are thus made the subject of legislative interference are under the protection of the
Federal Constitution regarding their liberty of contract as well as of person, and the
legislature of the State has no power to limit their right as proposed in this statute.
All that it could properly do has been done by it with regard to the conduct of
bakeries, as provided for in the other sections of the act above set forth. These
several sections provide for the inspection of the premises where the bakery is
carried on, with regard to furnishing proper wash-rooms and water-closets, apart
from the bake-room, also with regard to providing proper drainage, plumbing and
painting; the sections, in addition, provide for the height of the ceiling, the
cementing or tiling of floors, where necessary in the opinion of the factory inspector,
and for other things of [p62] that nature; alterations are also provided for and are to
be made where necessary in the opinion of the inspector, in order to comply with
the provisions of the statute. These various sections may be wise and valid
regulations, and they certainly go to the full extent of providing for the cleanliness
and the healthiness, so far as possible, of the quarters in which bakeries are to be
conducted. Adding to all these requirements a prohibition to enter into any contract
of labor in a bakery for more than a certain number of hours a week is, in our
judgment, so wholly beside the matter of a proper, reasonable and fair provision as
to run counter to that liberty of person and of free contract provided for in the
Federal Constitution.
It was further urged on the argument that restricting the hours of labor in the case
of bakers was valid because it tended to cleanliness on the part of the workers, as a
man was more apt to be cleanly when not overworked, and, if cleanly, then his
"output" was also more likely to be so. What has already been said applies with
equal force to this contention. We do not admit the reasoning to be sufficient to
justify the claimed right of such interference. The State in that case would assume
the position of a supervisor, or pater familias, over every act of the individual, and
its right of governmental interference with his hours of labor, his hours of exercise,
the character thereof, and the extent to which it shall be carried would be
recognized and upheld. In our judgment, it is not possible, in fact, to discover the
connection between the number of hours a baker may work in the bakery and the
healthful quality of the bread made by the workman. The connection, if any exists, is
too shadowy and thin to build any argument for the interference of the legislature. If
the man works ten hours a day, it is all right, but if ten and a half or eleven, his
health is in danger and his bread may be unhealthful, and, therefore, he shall not be
permitted to do it. This, we think, is unreasonable, and entirely arbitrary. When
assertions such as we have adverted to become necessary in order to give, if
possible, a plausible foundation for the contention that the law is a "health law,"
[p63] it gives rise to at least a suspicion that there was some other motive
dominating the legislature than the purpose to subserve the public health or welfare.
This interference on the part of the legislatures of the several States with the
ordinary trades and occupations of the people seems to be on the increase. In the
Supreme Court of New York, in the case of People v. Beattie, Appellate Division, First
Department, decided in 1904, 89 N.Y.Supp. 193, a statute regulating the trade of
horseshoeing, and requiring the person practicing such trade to be examined and to
obtain a certificate from a board of examiners and file the same with the clerk of the
county wherein the person proposes to practice his trade, was held invalid as an
arbitrary interference with personal liberty and private property without due process
of law. The attempt was made, unsuccessfully, to justify it as a health law.
The same kind of a statute was held invalid (In re Aubry) by the Supreme Court of
Washington in December, 1904. 78 Pac.Rep. 900. The court held that the act
deprived citizens of their liberty and property without due process of law and denied
to them the equal protection of the laws. It also held that the trade of a horseshoer
is not a subject of regulation under the police power of the State as a business
concerning and directly affecting the health, welfare or comfort of its inhabitants,
and that, therefore, a law which provided for the examination and registration of
horseshoers in certain cities was unconstitutional as an illegitimate exercise of the
police power.
The Supreme Court of Illinois in Bessette v. People, 193 Illinois 334, also held that a
law of the same nature, providing for the regulation and licensing of horseshoers,
was unconstitutional as an illegal interference with the liberty of the individual in
adopting and pursuing such calling as he may choose, subject only to the restraint
necessary secure the common welfare. See also Godcharles v. Wigeman, 113 Pa. St.
431, 437; Low v. Rees Printing Co., 41 Nebraska 127, 145. In [p64] these cases, the
courts upheld the right of free contract and the right to purchase and sell labor upon
such terms as the parties may agree to.
It is impossible for us to shut our eyes to the fact that many of the laws of this
character, while passed under what is claimed to be the police power for the
purpose of protecting the public health or welfare, are, in reality, passed from other
motives. We are justified in saying so when, from the character of the law and the
subject upon which it legislates, it is apparent that the public health or welfare bears
but the most remote relation to the law. The purpose of a statute must be
determined from the natural and legal effect of the language employed, and
whether it is or is not repugnant to the Constitution of the United States must be
determined from the natural effect of such statutes when put into operation, and not
from their proclaimed purpose. Minnesota v. Barber, 136 U.S. 313; Brimmer v.
Rebman, 138 U.S. 78. The court looks beyond the mere letter of the law in such
cases. Yick Wo v. Hopkins, 118 U.S. 356.
It is manifest to us that the limitation of the hours of labor as provided for in this
section of the statute under which the indictment was found, and the plaintiff in
error convicted, has no such direct relation to, and no such substantial effect upon,
the health of the employee as to justify us in regarding the section as really a health
law. It seems to us that the real object and purpose were simply to regulate the
hours of labor between the master and his employees (all being men sui juris) in a
private business, not dangerous in any degree to morals or in any real and
substantial degree to the health of the employees. Under such circumstances, the
freedom of master and employee to contract with each other in relation to their
employment, and in defining the same, cannot be prohibited or interfered with
without violating the Federal Constitution.
The judgment of the Court of Appeals of New York, as well as that of the Supreme
Court and of the County Court of Oneida County, must be reversed, and the case
remanded to [p65] the County Court for further proceedings not inconsistent with
this opinion.
Reversed.
Dissent
HARLAN, J., Dissenting Opinion
MR. JUSTICE HARLAN, with whom MR. JUSTICE WHITE and MR. JUSTICE DAY
concurred, dissenting.
While this court has not attempted to mark the precise boundaries of what is called
the police power of the State, the existence of the power has been uniformly
recognized, both by the Federal and state courts.
All the cases agree that this power extends at least to the protection of the lives, the
health, and the safety of the public against the injurious exercise by any citizen of
his own rights.
In Patterson v. Kentucky, 97 U.S. 501, after referring to the general principle that
rights given by the Constitution cannot be impaired by state legislation of any kind,
this court said:
It [this court] has, nevertheless, with marked distinctness and uniformity, recognized
the necessity, growing out of the fundamental conditions of civil society, of
upholding state police regulations which were enacted in good faith and had
appropriate and direct connection with that protection to life, health, and property
which each State owes to her citizens.
So, in Barbier v. Connolly, 113 U.S. 27:
But neither the [14th] Amendment -- broad and comprehensive as it is -- nor any
other Amendment was designed to interfere with the power of the State, sometimes
termed its police power, to prescribe regulations to promote the health, peace,
morals, education, and good order of the people.
Speaking generally, the State, in the exercise of its powers, may not unduly interfere
with the right of the citizen to enter into contracts that may be necessary and
essential in the enjoyment of the inherent rights belonging to everyone, among
which rights is the right to be free in the enjoyment of all his faculties; to be free to
use them in all lawful ways; to live and work where he will; to earn his livelihood by
any lawful calling; to pursue any livelihood or avocation.
This was declared [p66] in Allgeyer v. Louisiana, 165 U.S. 578, 589. But, in the same
case, it was conceded that the right to contract in relation to persons and property
or to do business within a State may be "regulated, and sometimes prohibited, when
the contracts or business conflict with the policy of the State as contained in its
statutes." (P. 591).
So, as said in Holden v. Hardy, 169 U.S. 366, 391: This right of contract, however, is
itself subject to certain limitations which the State may lawfully impose in the
exercise of its police powers. While this power is inherent in all government, it has
doubtless been greatly expanded in its application during the past century owing to
an enormous increase in the number of occupations which are dangerous, or so far
detrimental to the health of the employees as to demand special precautions for
their wellbeing and protection, or the safety of adjacent property. While this court
has held, notably in the cases of Davidson v. New Orleans, 96 U.S. 97, and Yick Wo v.
Hopkins, 118 U.S. 356, that the police power cannot be put forward as an excuse for
oppressive and unjust legislation, it may be lawfully resorted to for the purpose of
preserving the public health, safety or morals, or the abatement of public nuisances,
and a large discretion
is necessarily vested in the legislature to determine not only what the interests of
the public require, but what measures are necessary for the protection of such
interests.
Lawton v. Steele, 152 U.S. 133, 136.
Referring to the limitations placed by the State upon the hours of workmen, the
court in the same case said (p. 395):
These employments, when too long pursued, the legislature has judged to be
detrimental to the health of the employees, and, so long as there are reasonable
grounds for believing that this is so, its decision upon this subject cannot be
reviewed by the Federal courts.
Subsequently in Gundling v. Chicago, 177 U.S. 183, 188, this court said:
Regulations respecting the pursuit of a lawful trade or business are of very frequent
occurrence in the various cities of the country, and what such regulations shall be
and [p67] to what particular trade, business or occupation they shall apply are
questions for the State to determine, and their determination comes within the
proper exercise of the police power by the State, and unless the regulations are so
utterly unreasonable and extravagant in their nature and purpose that the property
and personal rights of the citizen are unnecessarily, and in a manner wholly
arbitrary, interfered with or destroyed without due process of law, they do not
extend beyond the power of the State to pass, and they form no subject for Federal
interference.
As stated in Crowley v. Christensen, 137 U.S. 86, the possession and enjoyment of
all rights are subject to such reasonable conditions as may be deemed by the
governing authority of the country essential to the safety, health, peace, good order
and morals of the community.
In St. Louis, Iron Mountain &c. Ry. v. Paul, 173 U.S. 404, 409, and in Knoxville Iron Co.
v. Harbison, 183 U.S. 13, 21, 22, it was distinctly adjudged that the right of contract
was not "absolute in respect to every matter, but may be subjected to the restraints
demanded by the safety and welfare of the State." Those cases illustrate the extent
to which the State may restrict or interfere with the exercise of the right of
contracting.
The authorities on the same line are so numerous that further citations are
unnecessary.
I take it to be firmly established that what is called the liberty of contract may,
within certain limits, be subjected to regulations designed and calculated to promote
the general welfare or to guard the public health, the public morals or the public
safety. "The liberty secured by the Constitution of the United States to every person
within its jurisdiction does not import," this court has recently said,
an absolute right in each person to be, at all times and in all circumstances, wholly
freed from restraint. There are manifold restraints to which every person is
necessarily subject for the common good. Jacobson v. Massachusetts, 197 U.S. 11.
[p68]
Granting then that there is a liberty of contract which cannot be violated even under
the sanction of direct legislative enactment, but assuming, as according to settled
law we may assume, that such liberty of contract is subject to such regulations as
the State may reasonably prescribe for the common good and the wellbeing of
society, what are the conditions under which the judiciary may declare such
regulations to be in excess of legislative authority and void? Upon this point there is
no room for dispute, for the rule is universal that a legislative enactment, Federal or
state, is never to be disregarded or held invalid unless it be, beyond question,
plainly and palpably in excess of legislative power. In Jacobson v. Massachusetts,
supra, we said that the power of the courts to review legislative action in respect of
a matter affecting the general welfare exists only
when that which the legislature has done comes within the rule that, if a statute
purporting to have been enacted to protect the public health, the public morals or
the public safety, has no real or substantial relation to those objects, or is, beyond
all question, a plain, palpable invasion of rights secured by the fundamental law
-- citing Mugler v. Kansas, 123 U.S. 623, 661; Minnesota v. Barber, 136 U.S. 313,
320; Atkin v. Kansas, 191 U.S. 207, 223. If there be doubt as to the validity of the
statute, that doubt must therefore be resolved in favor of its validity, and the courts
must keep their hands off, leaving the legislature to meet the responsibility for
unwise legislation. If the end which the legislature seeks to accomplish be one to
which its power extends, and if the means employed to that end, although not the
wisest or best, are yet not plainly and palpably unauthorized by law, then the court
cannot interfere. In other words, when the validity of a statute is questioned, the
burden of proof, so to speak, is upon those who assert it to be unconstitutional.
McCulloch v. Maryland, 4 Wheat. 316, 421.
Let these principles be applied to the present case. By the. statute in question, it is
provided that
No employee shall be required or permitted to work in a biscuit, bread or cake [p69]
bakery or confectionery establishment more than sixty hours in any one week, or
more than ten hours in any one day, unless for the purpose of making a shorter work
day on the last day of the week; nor more hours in any one week than will make an
average of ten hours per day for the number of days during such week in which such
employee shall work.
It is plain that this statute was enacted in order to protect the physical wellbeing of
those who work in bakery and confectionery establishments. It may be that the
statute had its origin, in part, in the belief that employers and employees in such
establishments were not upon an equal footing, and that the necessities of the latter
often compelled them to submit to such exactions as unduly taxed their strength. Be
this as it may, the statute must be taken as expressing the belief of the people of
New York that, as a general rule, and in the case of the average man, labor in excess
of sixty hours during a week in such establishments may endanger the health of
those who thus labor. Whether or not this be wise legislation it is not the province of
the court to inquire. Under our systems of government, the courts are not concerned
with the wisdom or policy of legislation. So that, in determining the question of
power to interfere with liberty of contract, the court may inquire whether the means
devised by the State are germane to an end which may be lawfully accomplished
and have a real or substantial relation to the protection of health, as involved in the
daily work of the persons, male and female, engaged in bakery and confectionery
establishments. But when this inquiry is entered upon, I find it impossible, in view of
common experience, to say that there is here no real or substantial relation between
the means employed by the State and the end sought to be accomplished by its
legislation. Mugler v. Kansas, supra. Nor can I say that the statute has no
appropriate or direct connection with that protection to health which each State
owes to her citizens, Patterson v. Kentucky, supra; or that it is not promotive of the
health of the employees in question, Holden v. Hardy, Lawton v. Steele, [p70] supra;
or that the regulation prescribed by the State is utterly unreasonable and
extravagant or wholly arbitrary, Gundling v. Chicago, supra. Still less can I say that
the statute is, beyond question, a plain, palpable invasion of rights secured by the
fundamental law. Jacobson v. Massachusetts, supra. Therefore, I submit that this
court will transcend its functions if it assumes to annul the statute of New York. It
must be remembered that this statute does not apply to all kinds of business. It
applies only to work in bakery and confectionery establishments, in which, as all
know, the air constantly breathed by workmen is not as pure and healthful as that to
be found in some other establishments or out of doors.
Professor Hirt, in his treatise on the "Diseases of the Workers," has said:
The labor of the bakers is among the hardest and most laborious imaginable,
because it has to be performed under conditions injurious to the health of those
engaged in it. It is hard, very hard work, not only because it requires a great deal of
physical exertion in an overheated workshop and during unreasonably long hours,
but more so because of the erratic demands of the public, compelling the baker to
perform the greater part of his work at night, thus depriving him of an opportunity to
enjoy the necessary rest and sleep, a fact which is highly injurious to his health.
Another writer says:
The constant inhaling of flour dust causes inflammation of the lungs and of the
bronchial tubes. The eyes also suffer through this dust, which is responsible for the
many cases of running eyes among the bakers. The long hours of toil to which all
bakers are subjected produce rheumatism, cramps and swollen legs. The intense
heat in the workshops induces the workers to resort to cooling drinks, which,
together with their habit of exposing the greater part of their bodies to the change in
the atmosphere, is another source of a number of diseases of various organs. Nearly
all bakers are pale-faced and of more delicate health than the workers of other
crafts, which is chiefly due to their hard work and their irregular and unnatural mode
of living, whereby the power of resistance against disease is [p71] greatly
diminished. The average age of a baker is below that of other workmen; they seldom
live over their fiftieth year, most of them dying between the ages of forty and fifty.
During periods of epidemic diseases, the bakers are generally the first to succumb to
the disease, and the number swept away during such periods far exceeds the
number of other crafts in comparison to the men employed in the respective
industries. When, in 1720, the plague visited the city of Marseilles, France, every
baker in the city succumbed to the epidemic, which caused considerable excitement
in the neighboring cities and resulted in measures for the sanitary protection of the
bakers.
In the Eighteenth Annual Report by the New York Bureau of Statistics of Labor it is
stated that, among the occupations involving exposure to conditions that interfere
with nutrition is that of a baker (p. 52). In that Report, it is also stated that,
from a social point of view, production will be increased by any change in industrial
organization which diminishes the number of idlers, paupers and criminals. Shorter
hours of work, by allowing higher standards of comfort and purer family life, promise
to enhance the industrial efficiency of the wage-working class -- improved health,
longer life, more content and greater intelligence and inventiveness.
Statistics show that the average daily working time among workingmen in different
countries is, in Australia, 8 hours; in Great Britain, 9; in the United States, 9; in
Denmark, 9; in Norway, 10; Sweden, France and Switzerland, 10; Germany, 10;
Belgium, Italy and Austria, 11, and in Russia, 12 hours.
We judicially know that the question of the number of hours during which a workman
should continuously labor has been, for a long period, and is yet, a subject of serious
consideration among civilized peoples and by those having special knowledge of the
laws of health. Suppose the statute prohibited labor in bakery and confectionery
establishments in excess of eighteen hours each day. No one, I take it, could dispute
the power of the State to enact such a statute. But the statute [p72] before us does
not embrace extreme or exceptional cases. It may be said to occupy a middle
ground in respect of the hours of labor. What is the true ground for the State to take
between legitimate protection, by legislation, of the public health and liberty of
contract is not a question easily solved, nor one in respect of which there is or can
be absolute certainty. There are very few, if any, questions in political economy
about which entire certainty may be predicated. One writer on relation of the State
to labor has well said:
The manner, occasion, and degree in which the State may interfere with the
industrial freedom of its citizens is one of the most debatable and difficult questions
of social science. Jevons, 33.
We also judicially know that the number of hours that should constitute a day's labor
in particular occupations involving the physical strength and safety of workmen has
been the subject of enactments by Congress and by nearly all of the States. Many if
not most of those enactments fix eight hours as the proper basis of a day's labor.
I do not stop to consider whether any particular view of this economic question
presents the sounder theory. What the precise facts are it may be difficult to say. It is
enough for the determination of this case, and it is enough for this court to know,
that the question is one about which there is room for debate and for an honest
difference of opinion. There are many reasons of a weighty, substantial character,
based upon the experience of mankind, in support of the theory that, all things
considered, more than ten hours' steady work each day, from week to week, in a
bakery or confectionery establishment, may endanger the health, and shorten the
lives of the workmen, thereby diminishing their physical and mental capacity to
serve the State, and to provide for those dependent upon them.
If such reasons exist, that ought to be the end of this case, for the State is not
amenable to the judiciary in respect of its legislative enactments unless such
enactments are plainly, palpably, beyond all question, inconsistent with the
Constitution [p73] of the United States. We are not to presume that the State of New
York has acted in bad faith. Nor can we assume that its legislature acted without due
deliberation, or that it did not determine this question upon the fullest attainable
information, and for the common good. We cannot say that the State has acted
without reason, nor ought we to proceed upon the theory that its action is a mere
sham. Our duty, I submit, is to sustain the statute as not being in conflict with the
Federal Constitution for the reason -- and such is an all-sufficient reason -- it is not
shown to be plainly and palpably inconsistent with that instrument. Let the State
alone in the management of its purely domestic affairs so long as it does not appear
beyond all question that it has violated the Federal Constitution. This view
necessarily results from the principle that the health and safety of the people of a
State are primarily for the State to guard and protect.
I take leave to say that the New York statute, in the particulars here involved, cannot
be held to be in conflict with the Fourteenth Amendment without enlarging the
scope of the Amendment far beyond its original purpose and without bringing under
the supervision of this court matters which have been supposed to belong
exclusively to the legislative departments of the several States when exerting their
conceded power to guard the health and safety of their citizens by such regulations
as they in their wisdom deem best. Health laws of every description constitute, said
Chief Justice Marshall, a part of that mass of legislation which embraces everything
within the territory of a State not surrendered to the General Government; all which
can be most advantageously exercised by the States themselves.
Gibbons v. Ogden, 9 Wheat. 1, 203. A decision that the New York statute is void
under the Fourteenth Amendment will, in my opinion, involve consequences of a far-
reaching and mischievous character; for such a decision would seriously cripple the
inherent power of the States to care for the lives, health and wellbeing of their
citizens. Those are matters which can be best controlled by the States. [p74] The
preservation of the just powers of the States is quite as vital as the preservation of
the powers of the General Government.
When this court had before it the question of the constitutionality of a statute of
Kansas making it a criminal offense for a contractor for public work to permit or
require his employees to perform labor upon such work in excess of eight hours each
day, it was contended that the statute was in derogation of the liberty both of
employees and employer. It was further contended that the Kansas statute was
mischievous in its tendencies. This court, while disposing of the question only as it
affected public work, held that the Kansas statute was not void under the Fourteenth
Amendment. But it took occasion to say what may well be here repeated:
The responsibility therefor rests upon legislators, not upon the courts. No evils
arising from such legislation could be more far-reaching than those that might come
to our system of government if the judiciary, abandoning the sphere assigned to it
by the fundamental law, should enter the domain of legislation, and upon grounds
merely of justice or reason or wisdom, annul statutes that had received the sanction
of the people's representatives. We are reminded by counsel that it is the solemn
duty of the courts in cases before them to guard the constitutional rights of the
citizen against merely arbitrary power. That is unquestionably true. But it is equally
true -- indeed, the public interests imperatively demand -- that legislative
enactments should be recognized and enforced by the courts as embodying the will
of the people unless they are plainly and palpably, beyond all question, in violation
of the fundamental law of the Constitution. Atkin v. Kansas, 191 U.S. 207, 223. The
judgment in my opinion should be affirmed.
MR. JUSTICE HOLMES dissenting.
I regret sincerely that I am unable to agree with the judgment [p75] in this case, and
that I think it my duty to express my dissent.
This case is decided upon an economic theory which a large part of the country does
not entertain. If it were a question whether I agreed with that theory, I should desire
to study it further and long before making up my mind. But I do not conceive that to
be my duty, because I strongly believe that my agreement or disagreement has
nothing to do with the right of a majority to embody their opinions in law. It is settled
by various decisions of this court that state constitutions and state laws may
regulate life in many ways which we, as legislators, might think as injudicious, or, if
you like, as tyrannical, as this, and which, equally with this, interfere with the liberty
to contract. Sunday laws and usury laws are ancient examples. A more modern one
is the prohibition of lotteries. The liberty of the citizen to do as he likes so long as he
does not interfere with the liberty of others to do the same, which has been a
shibboleth for some well known writers, is interfered with by school laws, by the Post
Office, by every state or municipal institution which takes his money for purposes
thought desirable, whether he likes it or not. The Fourteenth Amendment does not
enact Mr. Herbert Spencer's Social Statics. The other day, we sustained the
Massachusetts vaccination law. Jacobson v. Massachusetts, 197 U.S. 11. United
States and state statutes and decisions cutting down the liberty to contract by way
of combination are familiar to this court. Northern Securities Co. v. United States,
193 U.S. 197. Two years ago, we upheld the prohibition of sales of stock on margins
or for future delivery in the constitution of California. Otis v. Parker, 187 U.S. 606.
The decision sustaining an eight hour law for miners is still recent. Holden v. Hardy,
169 U.S. 366. Some of these laws embody convictions or prejudices which judges
are likely to share. Some may not. But a constitution is not intended to embody a
particular economic theory, whether of paternalism and the organic relation of the
citizen to the State or of laissez faire. [p76] It is made for people of fundamentally
differing views, and the accident of our finding certain opinions natural and familiar
or novel and even shocking ought not to conclude our judgment upon the question
whether statutes embodying them conflict with the Constitution of the United
States.
General propositions do not decide concrete cases. The decision will depend on a
judgment or intuition more subtle than any articulate major premise. But I think that
the proposition just stated, if it is accepted, will carry us far toward the end. Every
opinion tends to become a law. I think that the word liberty in the Fourteenth
Amendment is perverted when it is held to prevent the natural outcome of a
dominant opinion, unless it can be said that a rational and fair man necessarily
would admit that the statute proposed would infringe fundamental principles as they
have been understood by the traditions of our people and our law. It does not need
research to show that no such sweeping condemnation can be passed upon the
statute before us. A reasonable man might think it a proper measure on the score of
health. Men whom I certainly could not pronounce unreasonable would uphold it as a
first instalment of a general regulation of the hours of work. Whether in the latter
aspect it would be open to the charge of inequality I think it unnecessary to discuss.