G.R. No. L-11154 March 21, 1916 E. MERRITT, Plaintiff-Appellant , vs. GOVERNMENT OF THE PHILIPPINE ISLANDS, Defendant-Appellant. R !

"#$% Th& S'a'& "( #o' !"a)!& *or +a,a$&( ca (&+ 'o M&rr"'' -h&# h"( ,o'orc.c!& co!!"+&+ -"'h a# a,) !a#c& o* 'h& G&#&ra! Ho(/"'a! #&$!"$&#'!. +r"0&#. Pr"#c"/!&(%

1)

Ac' No. 2451 /a((&+ o#!. "( a co#(&#' o* 'h& S'a'& 'o )& ( &+, #o' a co#(&#' 'o )& !"a)!&. S a)"!"'. a#+ !"a)"!"'. ar& +"**&r&#'. Th& Ac' "( &#'"'!&+, 2A# Ac' a 'hor"3"#$ E. M&rr"'' 'o )r"#$ ( "' a$a"#(' 'h& Go0&r#,&#' o* 'h& Ph"!"//"#& I(!a#+( a#+ a 'hor"3"#$ 'h& A''or#&.-G&#&ra! o* (a"+ I(!a#+( 'o a//&ar "# (a"+ ( "'.4 Th& /!a"#'"** -a( a 'hor"3&+ 'o )r"#$ 'h"( ac'"o# a$a"#(' 'h& Go0&r#,&#' 2"# or+&r 'o *"5 'h& r&(/o#(")"!"'. *or 'h& co!!"("o# )&'-&&# h"( ,o'orc.c!& a#+ 'h& a,) !a#c& o* 'h& G&#&ra! Ho(/"'a! a#+ 'o +&'&r,"#& 'h& a,o #' o* 'h& +a,a$&(, "* a#., 'o -h"ch Mr. E. M&rr"'' "( &#'"'!&+ o# acco #' o* (a"+ co!!"("o#, . . . .4 Th&(& -&r& 'h& '-o 6 &('"o#( ( ),"''&+ 'o 'h& co r' *or +&'&r,"#a'"o#. Th& Ac' -a( /a((&+ 2"# or+&r 'ha' (a"+ 6 &('"o#( ,a. )& +&c"+&+.4 Th& 7o r' ha( 2+&c"+&+4 'ha' 'h& acc"+&#' -a( + & (o!&!. 'o 'h& #&$!"$&#c& o* 'h& cha **& r, -ho -a( a' 'h& '",& a# &,/!o.&& o* 'h& +&*&#+a#', a#+ 'h& 7o r' ha( a!(o *"5&+ 'h& a,o #' o* +a,a$&( ( ('a"#&+ ). 'h& /!a"#'"** a( a r&( !' o* 'h& co!!"("o#. Do&( 'h& Ac' a 'hor"3& 'h& 7o r' 'o ho!+ 'ha' 'h& Go0&r#,&#' "( !&$a!!. !"a)!& *or 'ha' a,o #'8 9&ca (& "' +o&( #o', 'h& 7o r' , (' !oo: &!(&-h&r& *or ( ch a 'hor"'., "* "' &5"('(. Tha' a 'hor"'. "( Ar'. 19;< o* 'h& 77 =o!+ 77>.

2)

Ar'. 19;< o* 'h& o!+ 77 /ro0"+"#$ *or !"a)"!"'. o* a /&r(o# *or ac'( o* o'h&r( -"'h"# h"( r&(/o#(")"!"'. =r&(/o#+&a' ( /&r"or> r&6 "r&( 'ha' 'h& a$&#' "( a (/&c"a! a$&#'. Th& a,) !a#c& +r"0&r "# 'h"( ca(& "( #o' a (/&c"a! a$&#' A (/&c"a! a$&#' "( o#& -ho r&c&"0&( a +&*"#"'& a#+ *"5&+ or+&r or co,,"(("o#, *or&"$# 'o 'h& &5&rc"(& o* 'h& + '"&( o* h"( o**"c& "* h& "( a (/&c"a! o**"c"a!> (o 'ha' "# r&/r&(&#'a'"o# o* 'h& ('a'& a#+ )&"#$ )o #+ 'o ac' a( a# a$&#' 'h&r&o*, h& &5&c '&( 'h& 'r (' co#*"+&+ 'o h",. Th"( co#c&/' +o&( #o' a//!. 'o a#. &5&c '"0& a$&#' -ho "( a# &,/!o.&& o* 'h& ac'"#$ a+,"#"('ra'"o# a#+ -ho o# h"( o-# r&(/o#(")"!"'. /&r*or,( 'h& * #c'"o#( -h"ch ar& "#h&r&#' "# a#+ #a' ra!!. /&r'a"# 'o h"( o**"c& a#+ -h"ch ar& r&$ !a'&+ ). !a- a#+ 'h& r&$ !a'"o#(. Th& !a''&r "( $o0&r#&+ ). Ar'. 19;2 o* 'h& o!+ 77.

<>

Ar'. 19;2 o* 'h& o!+ 77 /ro0"+&( !"a)"!"'. o* 'h& /&r(o# -ho /&r*or,&+ 'h& ac' h",(&!*, 'h& +r"0&r.

TRENT, ?.% This is an appeal by both parties from a judgment of the Court of First Instance of the City of Manila in favor of the plaintiff for the sum of P1 ,! 1, together "ith the costs of the cause. Counsel for the plaintiff insist that the trial court erred #1$ %in limiting the general damages "hich the plaintiff suffered to P&,''', instead of P(&,''' as claimed in the complaint,) and #($ %in limiting the time "hen plaintiff "as entirely disabled to t"o months and t"enty*one days and fi+ing the damage accordingly in the sum of P(,,,,, instead of P,,''' as claimed by plaintiff in his complaint.) The -ttorney*.eneral on behalf of the defendant urges that the trial court erred/ #a$ in finding that the collision bet"een the plaintiff0s motorcycle and the ambulance of the .eneral 1ospital "as due to the negligence of the chauffeur2 #b$ in holding that the .overnment of the Philippine Islands is liable for the damages sustained by the plaintiff as a result of the collision, even if it be true that the collision "as due to the negligence of the chauffeur2 and #c$ in rendering judgment against the defendant for the sum of P1 ,! 1. The trial court0s findings of fact, "hich are fully supported by the record, are as follo"s/ It is a fact not disputed by counsel for the defendant that "hen the plaintiff, riding on a motorcycle, "as going to"ard the "estern part of Calle Padre Faura, passing along the "est side thereof at a speed of ten to t"elve miles an hour, upon crossing Taft -venue and "hen he "as ten feet from the south"estern intersection of said streets, the .eneral 1ospital ambulance, upon reaching said avenue, instead of turning to"ard the south, after passing the center thereof, so that it "ould be on the left side of said avenue, as is prescribed by the ordinance and the Motor 3ehicle -ct, turned suddenly and une+pectedly and long before reaching the center of the street, into the right side of Taft -venue, "ithout having sounded any "histle or horn, by "hich movement it struc4 the plaintiff, "ho "as already si+ feet from the south"estern point or from the post place there. 5y reason of the resulting collision, the plaintiff "as so severely injured that, according to 6r. 7aleeby, "ho e+amined him on the very same day that he "as ta4en to the .eneral 1ospital, he "as suffering from a depression in the left parietal region, a "ound in the same place and in the bac4 part of his head, "hile blood issued from his nose and he "as entirely unconscious.

The mar4s revealed that he had one or more fractures of the s4ull and that the grey matter and brain has had suffered material injury. -t ten o0cloc4 of the night in 8uestion, "hich "as the time set for performing the operation, his pulse "as so "ea4 and so irregular that, in his opinion, there "as little hope that he "ould live. 1is right leg "as bro4en in such a "ay that the fracture e+tended to the outer s4in in such manner that it might be regarded as double and then "ould be e+posed to infection, for "hich reason it "as of the most serious nature. -t another e+amination si+ days before the day of the trial, 6r. 7aleeby noticed that the plaintiff0s leg sho"ed a contraction of an inch and a half and a curvature that made his leg very "ea4 and painful at the point of the fracture. 9+amination of his head revealed a notable readjustment of the functions of the brain and nerves. The patient apparently "as slightly deaf, had a light "ea4ness in his eyes and in his mental condition. This latter "ea4ness "as al"ays noticed "hen the plaintiff had to do any difficult mental labor, especially "hen he attempted to use his money for mathematical calculations. -ccording to the various merchants "ho testified as "itnesses, the plaintiff0s mental and physical condition prior to the accident "as e+cellent, and that after having received the injuries that have been discussed, his physical condition had undergone a noticeable depreciation, for he had lost the agility, energy, and ability that he had constantly displayed before the accident as one of the best constructors of "ooden buildings and he could not no" earn even a half of the income that he had secured for his "or4 because he had lost &' per cent of his efficiency. -s a contractor, he could no longer, as he had before done, climb up ladders and scaffoldings to reach the highest parts of the building. -s a conse8uence of the loss the plaintiff suffered in the efficiency of his "or4 as a contractor, he had to dissolve the partnership he had formed "ith the engineer, :ilson, because he "as incapacitated from ma4ing mathematical calculations on account of the condition of his leg and of his mental faculties, and he had to give up a contract he had for the construction of the ;y Chaco building.) :e may say at the outset that "e are in full accord "ith the trial court to the effect that the collision bet"een the plaintiff0s motorcycle and the ambulance of the .eneral 1ospital "as due solely to the negligence of the chauffeur. The t"o items "hich constitute a part of the P1 ,! 1 and "hich are dra"n in 8uestion by the plaintiff are #a$ P&,''', the a"ard a"arded for permanent injuries, and #b$ the P(,,,,, the amount allo"ed for the loss of "ages during the time the plaintiff "as incapacitated from pursuing his occupation. :e find nothing in the record "hich "ould justify us in increasing the amount of the first. -s to the second, the record sho"s, and the trial court so found, that the plaintiff0s services as a contractor "ere "orth P1,''' per month. The court, ho"ever, limited the time to t"o months and t"enty*one days, "hich the plaintiff "as actually confined in the hospital. In this "e thin4 there "as error, because it "as clearly established that the plaintiff "as "holly incapacitated for a period of si+ months. The mere fact that he remained in the hospital only t"o months and t"enty*one days "hile the remainder of the si+ months "as spent in his home, "ould not prevent recovery for the "hole time. :e, therefore, find that the amount of damages sustained by the plaintiff, "ithout any fault on his part, is P1<,'!&. -s the negligence "hich caused the collision is a tort committed by an agent or employee of the .overnment, the in8uiry at once arises "hether the .overnment is legally liable for the damages resulting therefrom. -ct =o. ( &!, effective February >, 1?1&, reads/ -n -ct authori@ing 9. Merritt to bring suit against the .overnment of the Philippine Islands and authori@ing the -ttorney* .eneral of said Islands to appear in said suit. :hereas a claim has been filed against the .overnment of the Philippine Islands by Mr. 9. Merritt, of Manila, for damages resulting from a collision bet"een his motorcycle and the ambulance of the .eneral 1ospital on March t"enty*fifth, nineteen hundred and thirteen2 :hereas it is not 4no"n "ho is responsible for the accident nor is it possible to determine the amount of damages, if any, to "hich the claimant is entitled2 and :hereas the 6irector of Public :or4s and the -ttorney*.eneral recommended that an -ct be passed by the Aegislature authori@ing Mr. 9. Merritt to bring suit in the courts against the .overnment, in order that said 8uestions may be decided/ =o", therefore, c By authority of the United States, be it enacted by the Philippine Legislature, that: 79CTIB= 1. 9. Merritt is hereby authori@ed to bring suit in the Court of First Instance of the city of Manila against the .overnment of the Philippine Islands in order to fi+ the responsibility for the collision bet"een his motorcycle and the ambulance of the .eneral 1ospital, and to determine the amount of the damages, if any, to "hich Mr. 9. Merritt is entitled on account of said collision, and the -ttorney*.eneral of the Philippine Islands is hereby authori@ed and directed to appear at the trial on the behalf of the .overnment of said Islands, to defendant said .overnment at the same. 79C. (. This -ct shall ta4e effect on its passage. 9nacted, February >, 1?1&. 6id the defendant, in enacting the above 8uoted -ct, simply "aive its immunity from suit or did it also concede its liability to the plaintiffC If only the former, then it cannot be held that the -ct created any ne" cause of action in favor of the plaintiff or e+tended the defendant0s liability to any case not previously recogni@ed.

-ll admit that the Insular .overnment #the defendant$ cannot be sued by an individual "ithout its consent. It is also admitted that the instant case is one against the .overnment. -s the consent of the .overnment to be sued by the plaintiff "as entirely voluntary on its part, it is our duty to loo4 carefully into the terms of the consent, and render judgment accordingly. The plaintiff "as authori@ed to bring this action against the .overnment %in order to fi+ the responsibility for the collision bet"een his motorcycle and the ambulance of the .eneral 1ospital and to determine the amount of the damages, if any, to "hich Mr. 9. Merritt is entitled on account of said collision, . . . .) These "ere the t"o 8uestions submitted to the court for determination. The -ct "as passed %in order that said 8uestions may be decided.) :e have %decided) that the accident "as due solely to the negligence of the chauffeur, "ho "as at the time an employee of the defendant, and "e have also fi+ed the amount of damages sustained by the plaintiff as a result of the collision. 6oes the -ct authori@e us to hold that the .overnment is legally liable for that amountC If not, "e must loo4 else"here for such authority, if it e+ists. The .overnment of the Philippine Islands having been %modeled after the Federal and 7tate .overnments in the ;nited 7tates,) "e may loo4 to the decisions of the high courts of that country for aid in determining the purpose and scope of -ct =o. ( &!. In the ;nited 7tates the rule that the state is not liable for the torts committed by its officers or agents "hom it employs, e+cept "hen e+pressly made so by legislative enactment, is "ell settled. %The .overnment,) says Dustice 7tory, %does not underta4e to guarantee to any person the fidelity of the officers or agents "hom it employs, since that "ould involve it in all its operations in endless embarrassments, difficulties and losses, "hich "ould be subversive of the public interest.) #Claussen vs. City of Auverne, 1'> Minn., ?1, citing ;. 7. vs. Eir4patric4, ? :heat, !('2 , A. 9d., 1??2 and 5eers vs. 7tates, (' 1o"., &(!2 1& A. 9d., ??1.$ In the case of Melvin vs State #1(1 Cal., 1,$, the plaintiff sought to recover damages from the state for personal injuries received on account of the negligence of the state officers at the state fair, a state institution created by the legislature for the purpose of improving agricultural and 4indred industries2 to disseminate information calculated to educate and benefit the industrial classes2 and to advance by such means the material interests of the state, being objects similar to those sought by the public school system. In passing upon the 8uestion of the state0s liability for the negligent acts of its officers or agents, the court said/ =o claim arises against any government is favor of an individual, by reason of the misfeasance, laches, or unauthori@ed e+ercise of po"ers by its officers or agents. #Citing .ibbons vs. ;. 7., < :all., (,?2 Clodfelter vs. 7tate, <, =. C., &1, &>2 1 -m. Fep., '2 Chapman vs. 7tate, 1' Cal., ,?'2 > -m. 7t. Fep., 1&<2 .reen vs. 7tate, !> Cal., (?2 5ourn vs. 1art, ?> Cal., >(12 (! -m. 7t. Fep., ('>2 7tory on -gency, sec. >1?.$ -s to the scope of legislative enactments permitting individuals to sue the state "here the cause of action arises out of either tort or contract, the rule is stated in >, Cyc., ?1&, thus/ 5y consenting to be sued a state simply "aives its immunity from suit. It does not thereby concede its liability to plaintiff, or create any cause of action in his favor, or e+tend its liability to any cause not previously recogni@ed. It merely gives a remedy to enforce a pree+isting liability and submits itself to the jurisdiction of the court, subject to its right to interpose any la"ful defense. In Apfelbacher vs State #1&( =. :., 1 bringing of this suit, read/ , advanced sheets$, decided -pril 1,, 1?1&, the -ct of 1?1>, "hich authori@ed the

79CTIB= 1. -uthority is hereby given to .eorge -pfelbacher, of the to"n of 7ummit, :au4esha County, :isconsin, to bring suit in such court or courts and in such form or forms as he may be advised for the purpose of settling and determining all controversies "hich he may no" have "ith the 7tate of :isconsin, or its duly authori@ed officers and agents, relative to the mill property of said .eorge -pfelbacher, the fish hatchery of the 7tate of :isconsin on the 5ar4 Fiver, and the mill property of 9van 1umphrey at the lo"er end of =aga"ic4a Aa4e, and relative to the use of the "aters of said 5ar4 Fiver and =aga"ic4a Aa4e, all in the county of :au4esha, :isconsin. In determining the scope of this act, the court said/ Plaintiff claims that by the enactment of this la" the legislature admitted liability on the part of the state for the acts of its officers, and that the suit no" stands just as it "ould stand bet"een private parties. It is difficult to see ho" the act does, or "as intended to do, more than remove the state0s immunity from suit. It simply gives authority to commence suit for the purpose of settling plaintiff0s controversies "ith the estate. =o"here in the act is there a "hisper or suggestion that the court or courts in the disposition of the suit shall depart from "ell established principles of la", or that the amount of damages is the only 8uestion to be settled. The act opened the door of the court to the plaintiff. It did not pass upon the 8uestion of liability, but left the suit just "here it "ould be in the absence of the state0s immunity from suit. If the Aegislature had intended to change the rule that obtained in this state so long and to declare liability on the part of the state, it "ould not have left so important a matter to mere inference, but "ould have done so in e+press terms. #Murdoc4 .rate Co. vs. Common"ealth, 1&( Mass., (<2 ( =.9., <& 2 < A. F. -., >??.$ In Denning vs State #1(> Cal., >1,$, the provisions of the -ct of 1<?>, relied upon and considered, are as follo"s/ -ll persons "ho have, or shall hereafter have, claims on contract or for negligence against the state not allo"ed by the state board of e+aminers, are hereby authori@ed, on the terms and conditions herein contained, to bring suit thereon against the state in any of the courts of this state of competent jurisdiction, and prosecute the same to final judgment. The rules of

practice in civil cases shall apply to such suits, e+cept as herein other"ise provided. -nd the court said/ This statute has been considered by this court in at least t"o cases, arising under different facts, and in both it "as held that said statute did not create any liability or cause of action against the state "here none e+isted before, but merely gave an additional remedy to enforce such liability as "ould have e+isted if the statute had not been enacted. #Chapman vs. 7tate, 1' Cal., ,?'2 > -m. 7t. Fep., 1&<2 Melvin vs. 7tate, 1(1 Cal., 1,.$ - statute of Massachusetts enacted in 1<<! gave to the superior court %jurisdiction of all claims against the common"ealth, "hether at la" or in e8uity,) "ith an e+ception not necessary to be here mentioned. In construing this statute the court, in Murdoc! "rate #o vs #o$$on%ealth #1&( Mass., (<$, said/ The statute "e are discussing disclose no intention to create against the state a ne" and heretofore unrecogni@ed class of liabilities, but only an intention to provide a judicial tribunal "here "ell recogni@ed e+isting liabilities can be adjudicated. In Sipple vs State #?? =. G., (< $, "here the board of the canal claims had, by the terms of the statute of =e" Gor4, jurisdiction of claims for damages for injuries in the management of the canals such as the plaintiff had sustained, Chief Dustice Fuger remar4s/ %It must be conceded that the state can be made liable for injuries arising from the negligence of its agents or servants, only by force of some positive statute assuming such liability.) It being 8uite clear that -ct =o. ( &! does not operate to e+tend the .overnment0s liability to any cause not previously recogni@ed, "e "ill no" e+amine the substantive la" touching the defendant0s liability for the negligent acts of its officers, agents, and employees. Paragraph & of article 1?'> of the Civil Code reads/ The state is liable in this sense "hen it acts through a special agent, but not "hen the damage should have been caused by the official to "hom properly it pertained to do the act performed, in "hich case the provisions of the preceding article shall be applicable. The 7upreme Court of 7pain in defining the scope of this paragraph said/ That the obligation to indemnify for damages "hich a third person causes to another by his fault or negligence is based, as is evidenced by the same Aa" >, Title 1&, Partida !, on that the person obligated, by his o"n fault or negligence, ta4es part in the act or omission of the third party "ho caused the damage. It follo"s therefrom that the state, by virtue of such provisions of la", is not responsible for the damages suffered by private individuals in conse8uence of acts performed by its employees in the discharge of the functions pertaining to their office, because neither fault nor even negligence can be presumed on the part of the state in the organi@ation of branches of public service and in the appointment of its agents2 on the contrary, "e must presuppose all foresight humanly possible on its part in order that each branch of service serves the general "eal and that of private persons interested in its operation. 5et"een these latter and the state, therefore, no relations of a private nature governed by the civil la" can arise e+cept in a case "here the state acts as a judicial person capable of ac8uiring rights and contracting obligations. #7upreme Court of 7pain, Danuary !, 1<?<2 <> Dur. Civ., ( .$ That the Civil Code in Chapter (, Title 1,, 5oo4 , regulates the obligations "hich arise out of fault or negligence2 and "hereas in the first article thereof. =o. 1?'(, "here the general principle is laid do"n that "here a person "ho by an act or omission causes damage to another through fault or negligence, shall be obliged to repair the damage so done, reference is made to acts or omissions of the persons "ho directly or indirectly cause the damage, the follo"ing articles refers to this persons and imposes an identical obligation upon those "ho maintain fi+ed relations of authority and superiority over the authors of the damage, because the la" presumes that in conse8uence of such relations the evil caused by their o"n fault or negligence is imputable to them. This legal presumption gives "ay to proof, ho"ever, because, as held in the last paragraph of article 1?'>, responsibility for acts of third persons ceases "hen the persons mentioned in said article prove that they employed all the diligence of a good father of a family to avoid the damage, and among these persons, called upon to ans"er in a direct and not a subsidiary manner, are found, in addition to the mother or the father in a proper case, guardians and o"ners or directors of an establishment or enterprise, the state, but not al"ays, e+cept "hen it acts through the agency of a special agent, doubtless because and only in this case, the fault or negligence, "hich is the original basis of this 4ind of objections, must be presumed to lie "ith the state. That although in some cases the state might by virtue of the general principle set forth in -rticle 1?'( respond for all the damage that is occasioned to private parties by orders or resolutions "hich by fault or negligence are made by branches of the central administration acting in the name and representation of the state itself and as an e+ternal e+pression of its sovereignty in the e+ercise of its e+ecutive po"ers, yet said article is not applicable in the case of damages said to have been occasioned to the petitioners by an e&ecutive official, acting in the e+ercise of his po"ers, in proceedings to enforce the collections of certain property ta+es o"ing by the o"ner of the property "hich they hold in sublease. That the responsibility of the state is limited by -rticle 1?'> to the case "herein it acts through a special agent #and a special agent, in the sense in "hich these "ords are employed, is one "ho receives a definite and fi+ed order or commission, foreign to the e+ercise of the duties of his office if he is a special official$ so that in representation of the state and being bound to act as an agent thereof, he e+ecutes the trust confided to him. This concept does not apply to any e+ecutive agent "ho is an employee of the acting administration and "ho on his o"n responsibility performs the functions "hich are inherent in and naturally pertain to his office and "hich are regulated by la" and the regulations.) #7upreme Court of 7pain, May 1<, 1?' 2 ?< Dur. Civ., ><?, >?'.$

That according to paragraph & of article 1?'> of the Civil Code and the principle laid do"n in a decision, among others, of the 1<th of May, 1?' , in a damage case, the responsibility of the state is limited to that "hich it contracts through a special agent, duly empo"ered by a definite order or co$$ission to perfor$ so$e act or charged %ith so$e definite purpose %hich gives rise to the clai$, and not "here the claim is based on acts or omissions imputable to a public official charged "ith some administrative or technical office "ho can be held to the proper responsibility in the manner laid do"n by the la" of civil responsibility. Conse8uently, the trial court in not so deciding and in sentencing the said entity to the payment of damages, caused by an official of the second class referred to, has by erroneous interpretation infringed the provisions of articles 1?'( and 1?'> of the Civil Code. #7upreme Court of 7pain, Duly >', 1?112 1(( Dur. Civ., 1 ,.$ It is, therefore, evidence that the 7tate #the .overnment of the Philippine Islands$ is only liable, according to the above 8uoted decisions of the 7upreme Court of 7pain, for the acts of its agents, officers and employees "hen they act as special agents "ithin the meaning of paragraph & of article 1?'>, supra, and that the chauffeur of the ambulance of the .eneral 1ospital "as not such an agent. For the foregoing reasons, the judgment appealed from must be reversed, "ithout costs in this instance. :hether the .overnment intends to ma4e itself legally liable for the amount of damages above set forth, "hich the plaintiff has sustained by reason of the negligent acts of one of its employees, by legislative enactment and by appropriating sufficient funds therefor, "e are not called upon to determine. This matter rests solely "ith the Aegislature and not "ith the courts. Arellano, # ' , (orres, 'ohnson, and Moreland, '' , concur.