FIRST DIVISION "2. That the fact charged do not constitute a public offense.
[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.
SYLLABUS
1. DUE PROCESS OF LAW; EXPORTATION OF PHILIPPINE SILVER COINS. —
Act No. 1411, prohibiting the exportation of Philippine silver coins in sums exceeding P25, is
not in conflict with the fourteen amendment to the Constitution of the United States, and
proceedings had in accordance with its provisions constitute "due process of law."
DECISION
JOHNSON, J p:
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.
"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 Tamingwithout 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 behavior 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.
Arellano, C.J., Torres, Mapa, Carson and Tracey, JJ., concur.
Willard, J., concurs in the result.
||| (US v. Ling Su Fan, G.R. No. L-3962, [February 10, 1908], 10 PHIL 104-119)
FIRST DIVISION
[G.R. No. L-2746. December 6, 1906.]
MATEO CARIÑO, petitioner-appellant, vs.
THE INSULAR GOVERNMENT, respondent-appellee.
Coudert Brothers, for appellant.
Attorney-General Wilfley, for appellee.
SYLLABUS
1. PUBLIC LANDS; PRESCRIPTION; STATUTE OF LIMITATIONS. — The statute
of limitations did not run against the Crown of Spain as to its public agricultural lands
in these Islands. (Following Valenton et al. vs. Murciano, and other cases.)
2. ID.; ID.; PRESUMPTION OF GRANT. — There is in these Islands no conclusive
presumption of a grant from the Government founded merely upon long possession.
3. ID.; ID.; PUBLIC LAND ACT. — Act No. 926, section 54, paragraph 6, is not
applicable to this case.
DECISION
WILLARD, J p:
 The appellant, on the 23d of June, 1903, by his attorney in fact, Metcalf A. Clarke,
filed a petition in the Court of Land Registration asking that he be inscribed as the owner of a
tract of land in the municipality of Baguio, in the province of Benguet, containing 146 hectares.
The Government of the Philippine Islands, appeared in the Court of Land Registration and
opposed the petition. The Government of the United States that the land was part of the
military reservation of Baguio. Judgment was entered in the Court of Land Registration in
favor of the petitioner, from which judgment the respondents appealed in accordance with the
law then in force to the Court of First Instance of the province of Benguet. The case was
therein tried de novo, and judgment was entered dismissing the petition. The petitioner has
brought the case here by bill of exceptions.
The petitioner presented no documentary evidence of title, except a possessory
information obtained in 1901. By the provisions of the Mortgage Law, under which this
possessory information was obtained (art. 394), it produced only those effects which the laws
give to mere possession.
The petitioner not having shown any title from the Government, and the land being
agricultural, the case is governed by the decisions of this court in the cases of Valenton et
al. vs. Murciano 1 (2 Off. Gaz., 434); Cansino et al. vs. Valdez et al. 2 (4 Off. Gaz., 488); and
Tiglao vs. The Insular Government 1 (4 Off. Gaz., 747). In these cases it was held that the
mere possession of land such as that in controversy in this case would give the possessor and
title thereto as against the Government; in other words, that the statute of limitations did not
run against the State in reference to its agricultural lands.
The petitioner, however, insists that although the statute of limitations as such did
not run against the Government of Spain in the Philippine Islands, yet a grant is to be
conclusively presumed from immemorial use and occupation. To say that the presumption of a
grant is presumption of law is, in our opinion, simply to say that it amounts to a statute of
limitations; and for a court to hold that the statute of limitations does not run against the
Government as to its public agricultural lands, and at the same time to hold that if a person
has been in possession of such lands for thirty years it is conclusively presumed that the
Government has given him a deed therefor, would be to make two rulings directly inconsistent
with each other.
Considered as a presumption of fact, the contention could not be sustained in this
particular case. Here the surrounding circumstances are incompatible with the existence of a
grant, It is known that for nearly three hundred years all attempts to convert the Igorots of the
Province of Benguet to the Christian religion completely failed, and that during that time they
remained practically in the same condition as they were when the Islands were first occupied
by the Spaniards. To presume as a matter of fact that during that time, and down to at least
1880, the provisions of the laws relating to the grant, adjustment, and sale of public were
taken advantage of by these deeds from the Government for these lands would be to presume
something which did not exist. The appellant says in his brief (p.10):
"The Igorot, no less than the American Indian, is an aborigine, and is
equally ignorant of the forms of law and procedure necessary to protect his interests."
There is, moreover, in the case evidence that in 1894 the petitioner sought to
obtain title from the Government in accordance with the laws then in force. In 1901 he made a
contract with Metalcalf A. Clarke, by the terms of which he agreed to sell the land to Clarke for
6,000 pesos when he obtained title thereto from the Government, and this contract he does
not say that he is the owner, but simply that he is in possession thereof. The court below
found that the land is now worth upwards of P50,000.
The possession of the land has not been of such a character as to require the
presumption of a grant. No one has lived upon it for many years. It was never used for
anything but pasturage of animals, except insignificant portions thereof, and since the
insurrection against Spain it has apparently not been used by the petitioner for any purpose.
The petitioner relies upon the case of the United States vs. Chaves (159 U.S., 452)
and the case of The United States vs. Chaves (175 U.S., 509). In the case of Hays vs. The
United States (175 U.S. 248) the court said at page 261;
"But this presumption is subject to the limitation that where title is claimed
from a deed which is shown to be void, it will not be presumed that there was an
independent grant (Smith vs. Highbee, 12 Vermont,. 113), or where surrounding
circumstances are inconsistent with the theory of a grant. (Townsend vs. Downer, 32
Vermont, 183).
"The substance of this doctrine is that lapse of time any be treated as
helping out the presumption of a grant, but where a void grant is shown, it affords no
presumption that another valid grant was made. Nor does such presumption arise if
the surrounding circumstances are incompatible with the existence of a grant. In this
case under consideration we can not find any evidence which justifies us in believing
that a legal grant can have been made, and under those circumstances we can not
consider possession since the date of the treaty as dispensing with the requirement
that the title, if not perfect at that time, was one which the claimant would have a
lawful right to make perfect had the territory not been acquired by the United States."
In the case of Chaves vs. The United States (175 U.S., 552) the court made the
following statement at page 562:
"Finally, it distinctly appears that the possession of the parties is
insufficient in length of time to prove a valid title. In United States vs. Chaves (159
U.S., 452) the possession was under the claim of a grant made by the governor of
New Mexico to the alleged grantees. The grant had been lost, but it had been seen
and read by witnesses, and its existence had been proved by evidence sufficient, as
we stated in the opinion (p. 460), to warrant 'the finding of the court below that the
complainant's title was derived from the Republic of Mexico, and was complete and
perfect at the date when the United States acquired sovereignty in the territory of
New Mexico, within which the land was situated. We do not question the correctness
to the remarks made by Mr. Justice Shiras in regard to evidence of possession and
the presumptions which may under certain circumstances drawn as to the existence
of a grant.
"We do not deny the right of the duty of a court to presume its existence
in a proper case, in order to quiet a title and to give to long continued possession the
quality of a rightful possession under a legal right. We recognized and enforced such
a rule in the case of United States vs. Chaves decided at this term. in which the
question is involved. We simply say in this case that the possession was not a
duration long enough to justify any such inference.
"There is no proof of any valid grant, but on the contrary the evidence
offered by the plaintiff himself and upon which the bases the title that he asks the
court to confirm, shows the existence of a grant from a body which had no legal
power to make it, and which, therefore, conveyed no title whatever to its grantee, and
the evidence is, as given by the plaintiff himself, that it was under this grant alone
that possession of the lands was taken. We can not presume (within the time involved
in this case) that any other and valid grant was ever made. The possession of the
 plaintiff and of his grantors up to the time of the treaty of Guadalupe Hidalgo, in 1848,
had not been long enough to presume a grant. (Crispin vs. United States, 168 U.S.,
208; Hayes vs. United States, 170 U.S., 637, 649, 653; Hays vs. The United States,
ante 248.) The possession subsequently existing, we can not notice. Same
authorities."
As we understand it, it is well settled in the United States that prescription does not
run against the Government as to its public lands — in other words, that if a person desires to
obtain title to the public lands of the United States situated within the boundaries of the States,
he must do so in the way pointed out by the law. We do not understand that a person in
possession of unsurveyed public lands in the State of Minnesota, for example, whose
ancestors had occupied that the land for forty years, could maintain in court a claim that he
was the legal owner of the lands by reason of the presumption that the United States had
granted the land to his ancestors, a presumption founded not upon any proceedings taken in
the General Land Office to acquire a patent thereto, but upon the mere possession for that
length of time.
The same is true of the public lands of Spain in the Philippine Islands. In the case
of Valenton et al. vs. Marciano it was said:
"While the State has always recognized the right of the occupant to a deed
if he proves a possession for a sufficient length of time, yet it has always insisted that
he must make that proof before the proper administrative officers, and obtain from
them his deed, and until he did the State remained the absolute owner."
But in any event, and whatever the law may be elsewhere, it seems clear that this
doctrine of presumptive grant can not apply to the Philippines in view of the Spanish
legislation for the Indies. From time to time there were promulgated laws which required the
person in possession of public lands to exhibit their titles or grants thereto. If these titles or
grants were found to be good, they were confirmed, but if they were not, or if the persons had
no grants or titles at all, they were evicted from the land. For example, in Law 14, title 12, 4,
Recompilation of the Laws of the Indies, it is stated:
"We therefore order and command that all viceroys and presidents of
pretrial courts designate, at such times as shall to them most expedient, a suitable
period within which all possessors of tracts, farms, plantations, and estates shall
exhibit to them and to the court officers appointed by them for this purpose their title
deeds thereto. And those who are in possession by virtue of proper deeds and
receipts or by virtue of just prescriptive rights shall be protected, and all the rest shall
be restored to us to be disposed of at our will.
In the Royal Cedula of October 15, 1754, it was provided —
"that any and all persons who, since the year 1700, and up to the date of
promulgation and publication of said order, shall have occupied royal lands, whether
or not the same shall be cultivated or tenanted, may, either in person or through their
attorneys or representatives, appear and exhibit to said subdelegates the titles and
patents by virtue of which said lands are occupied. Said subdelegates will designate
as the period within which documents must be presented a term sufficient in length
and proportionate to the distance the interested party may have to travel for the
purpose of making the presentation. Said subdelegates will at the same time warn
the parties interested that in case of the failure to present their title deeds within the
term designated, without a just and valid reason therefor, they will be deprived of and
evicted from their lands, and they will be granted to others."
In the regulations of June 25, 1880, it was provided as follows:
"ART. 8. If the interested parties shall not ask an adjustment of the lands
whose possession they are unlawfully enjoining within the time of one year, or, the
adjustment having been granted by the authorities, they shall fail to fulfill their
obligation in connection with the compromise, by paying the proper sum into the
treasury, the latter will, by virtue of the authority vested in it, reassert the ownership
of the Stated over the lands, and will, after fixing the whole thereof, proceed to sell
at public auction that part of the same which, either because it may have been
reduced to cultivation or is not located within the forest zone, is not deemed advisable
to preserve as State forest reservations." 1
In the royal decree of the 13th of February, 1894, published in the Official Gazzette
of Manila of the 17th of April, 01894, it is provided in article 4 as follows:
"ART. 4. The title to all agricultural lands which were capable of
adjustment (composicion) under the royal decree of the 25th of June, 1880, but the
adjustments of which decree in the Gaceta de Manila, will revert to the State. Any
claim to such lands by those who might have applied for the adjustment of the same,
but who have not done so as the above mentioned date, will not avail them in any
way or at any time."
In view of these provisions of the law, it seems to us impossible to say that as to
the public agricultural lands in the Philippines there existed a conclusive presumption after a
lapse of thirty or any other number of years that the Government of Spain had granted to the
possessor thereof a legal title thereto.
The plaintiff is not entitled to the benefits of paragraph 6 of section 54 of Act No.
926, the Public Land Act, for the reason that act is not applicable to the Province of Benguet.
The judgment of the court below is affirmed, with the costs of this instance against the
appellant.
After the expiration of twenty days let judgment be entered accordingly and ten
days thereafter the case be returned to the court below for execution. So ordered.
Arellano, C.J., Torres, Carson, and Tracey, JJ., concur.
Mapa, J., concurs in the result.
||| (Cariño v. Insular Government, G.R. No. L-2746, [December 6, 1906], 7 PHIL 132-139)
FIRST DIVISION
[G.R. No. 5060. January 26, 1910.]
THE UNITED STATES, plaintiff-appellee, vs. LUIS TORIBIO, defendant-
appellant.
 Rodriguez & Del Rosario, for appellant.
Attorney-General Villamor, for appellee.
SYLLABUS
1. STATUTORY CONSTRUCTION; SLAUGHTER OF LARGE CATTLE. — Section
30 and 33 of Act No. 1147 construed.
2. ID.; ID. — Where the language of a statute is fairly susceptible of two or more
constructions, that construction should be adopted which will most tend to give effect of the
manifest intent of the lawmaker and promote the object for which the statute was enacted, and
a construction should be rejected which would tend to render abortive other provisions of the
statute and to defeat the object which the legislator sought of attain by its enactment.
3. ID.; ID.; POLICE POWER OF THE STATE. — The provisions of Act No. 1147
prohibiting and penalizing the slaughter of carabaos for human consumption which are fit for
"agricultural work and draft purposes," held to be a reasonable and justifiable exercise of the
sovereign police power of the State, under the conditions existing in theses Islands.
4. ID.; ID.; ID.; APPROPRIATION OF PRIVATE PROPERTY TO PUBLIC USE. —
These provisions held not to constitute an appropriation of private property interests to a
"public use" so as to bring them within the principles of the exercise by the State of the right of
eminent domain and to entitle the owners to compensation, being no more than a just restraint
of an injurious private use of property.
5. ID.; ID.; CIRCUMSTANCES JUSTIFYING USE OF THE POLICE POWNER. —
"To justify the State" in the exercise of its sovereign police power "it must appear, first, that the
interests of the public generally, as distinguished from those of a particular class, require such
interference; and, second, that the means are reasonable necessary for the accomplishment
of the purpose, and not unduly oppressive upon individuals." (Lawton vs. Steele, 152 U. S.,
133, 136.)
DECISION
CARSON, J p:
The evidence of record fully sustains the findings of the trial court that the appellant
slaughter or caused to be slaughtered for human consumption, the carabao described in the
information, without a permit from the municipal treasurer of the municipality wherein it was
slaughtered, in violation of the provisions of sections 30 and 33 of Act No. 1147, and Act
regulating the registration, branding, and slaughter of large cattle.
It appears that in the town of Carmen, in the Province of Bohol, wherein the animal
was and slaughtered there is no municipal slaughterhouse, and counsel for appellant
contends that under such circumstances the provisions of Act No. 1147 do not prohibit nor
penalize the slaughter of large cattle without a permit of the municipal treasurer.
Sections 30, 31, 32, and 33 of the Act as follows:
"SEC. 30. No large cattle shall be slaughter or killed for food at
the municipal slaughterhouse except upon permit secured from the
municipal treasurer. Before issuing the permit for the slaughter of large
cattle for human consumption, the municipal treasurer shall require for
branded cattle the production of the original certificate of ownership and
certificates of transfer showing title in the person applying for the permit,
and for unbranded cattle such evidence as may satisfy said treasurer as to
the ownership of the animals for which permit to slaughter has been
requested.
"SEC. 31. No permit to slaughter carabaos shall be granted by
the municipal treasurer unless such animals are unfit for agricultural work
or for draft purposes, and in no event shall a permit be given to slaughter
for food any animal of any kind which is not fit for human consumption.
"SEC. 32. The municipal treasurer shall keep a record of all
permits for slaughter issued by him, and such record shall show the name
and residence of the owner, and the class, sex age, brands, knots of
radiated hair commonly known as remolinos or cowlicks, and other makes
of identification of the animal for the slaughter of which permit is issued and
the date be alphabetically arranged in the record, together with date of
permit.
"A copy of the record of permits granted for slaughter shall be
forwarded monthly to the provincial treasurer, who shall filed and properly
index the same under the name of the owner, together with date of permit.
"SEC. 33. Any person slaughtering or causing to be slaughtered
for human consumption or killing for food at the municipal slaughterhouse
any large cattle except upon permit duly secured from the municipal
treasurer, shall be punished by a fine of not less than ten nor more than
five hundred pesos, Philippine currency, or by imprisonment for not less
than one month nor more than six months, or by both such fine and
imprisonment, in the discretion of the court."
It is contended that the proper construction of the language of these provisions
limits the prohibition contained in section 30 and the penalty imposed in section 33 to cases
(1) of slaughter of large cattle for human consumption in a municipal slaughterhouse without a
permit duly secured from the municipal treasurer, and (2) cases of killing of large cattle for
food in a municipal slaughterhouse without a permit duly secured from the municipal treasurer;
and it is urged that the municipality of Carmen not being provided with a municipal
slaughterhouse, neither the prohibition nor the penalty is applicable to cases of slaughter of
large cattle without a permit in that municipality.
We are of opinion, however, that the prohibition contained in section 30 refers (1) to
the slaughter of large cattle for human consumption, anywhere, without a permit duly secured
from the municipal treasurer, and (2) expressly and specifically to the killing for food of large
cattle at a municipal slaughterhouse without such permit; and that the penalty provided in
section 33 applies generally to the slaughter of large cattle for human consumption, anywhere,
without a permit duly secured from the municipal treasurer, and specifically to the killing for
food of large cattle at a municipal slaughterhouse without such permit.
It may be admitted at once, that the pertinent language of these sections taken by
itself and examined apart from the context fairly admits of two constructions; one whereby the
phrase "at the municipal slaughterhouse" may be taken as limiting and restricting both the
word "slaughtered" and the words "killed for food" in section 30, and the words "slaughtering
or causing to be slaughtered for human consumption" and the words "killing for food" in the
section 33; and the other whereby the phrase "at the municipal slaughterhouse' may be taken
as limiting and restricting merely the words "killed for food" and "killing for food" as used in
those sections. But upon a reading of the whole Act, and keeping in mind the manifest and
expressed purpose and object of its enactment, it is very clear that the latter construction is
that which should be adopted.
The Act primarily seeks to protect the "large cattle" of the Philippine Islands against
theft and to make easy the recovery and return of such cattle to their proper owners, when
lost, strayed, or stolen. To this end it provides an elaborate and compulsory system for the
separate branding and registry of ownership of all such cattle throughout the Islands, whereby
owners are enabled readily and easily to establish their title; it prohibits and invalidates all
transfers of large cattle unaccompanied by certificates of transfer issued by the proper officer
in the municipality where the contract of sale is made; and it provides also for the disposition
of estrays and animals recovered from the possession of thieves or persons unlawfully in
possession, so as to protect the rights of the true owners. All this, manifestly, in order to make
it difficult for any one but the rightful owner of such cattle to retain them in his possession or to
dispose of them to others. But the usefulness of this elaborate and compulsory system of
identification, resting as it does on the official registry of the brands and marks on each
separate animal throughout the Islands, would be largely impaired, if not totally destroyed, if
such animals were permitted to be slaughtered for human consumption without requiring proof
of ownership and the production of certificates of registry by the person slaughtering or
causing them to be slaughtered, and this especially if the animals were slaughtered privately
or in a clandestine manner, outside of a municipal slaughterhouse. Hence, as it would appear,
section 30 and 33 prohibit and penalize the slaughter for human consumption or killing for
food at a municipal slaughterhouse of such animals without a permit issued by the municipal
treasurer and section 32 provides for the keeping of detailed records of all such permits in the
office of the municipal and also of the provincial treasurer.
If, however, the construction be placed on these sections which is contended for by
the appellant, it will readily be seen that all these carefully worked out provisions for the
registry and record of the brands and marks of identification of all large cattle in the Islands
would prove in large part abortive, since thieves and persons unlawfully in possession of such
cattle could, and naturally would, evade the provisions of the law by slaughtering them outside
of municipal slaughterhouses, and thus enjoy the fruits of their wrongdoing without exposing
themselves to the danger of detection incident to the bringing of the animals to the public
slaughterhouse, where the brands and other identification marks might be scrutinized and
proof of ownership required.
Where the language of a statute is fairly susceptible of two or more constructions,
that construction should be adopted which will most tend to give effect to the manifest intent of
the lawmaker and promote the object for which the statute was enacted, and a construction
should be rejected which would tend to render abortive other provisions of the statute and to
defeat the object which the legislator sought to attain by its enactment. We are of opinion,
therefore, that sections 30 and 33 of the Act prohibit and penalize the slaughtering or causing
to be slaughtered for human consumption of large cattle at any place without the permit
provided for in section 30.
It is not essential that an explanation be found for the express prohibition in these
sections of the "killing for food at a municipal slaughterhouse" of such animals, despite the fact
that this prohibition is clearly included in the general prohibition of the slaughter of such
animals for human consumption anywhere; but it is not improbable that the requirement for the
issue of a permit in such cases was expressly and specifically mentioned out of
superabundance of precaution, and to avoid all possibility of misunderstanding in the event
that some of the municipalities should be disposed to modify or vary the general provisions of
the law by the passage of local ordinances or regulations for the control of municipal
slaughterhouses.
Similar reasoning applied to the specific provisions of section 31 of the Act leads to
the same conclusion. One of the secondary purposes of the law, as set out in that section, is
to prevent the slaughter for food of carabaos fit for agricultural and draft purposes, and of all
animals unfit for human consumption. A construction which would limit the prohibitions and
penalties prescribed in the statute to the killing of such animals in municipal slaughterhouses,
leaving unprohibited and unpenalized their slaughter outside of such establishments, so
manifestly tends to defeat the purpose and object of the legislator, that unless imperatively
demanded by the language of the statute it should be rejected; and, as we have already
indicated, the language of the statute is clearly susceptible of the construction which we have
placed upon it, which tends to make effective the provisions of this as well as all the other
sections of the Act.
It appears that the defendant did in fact apply for a permit to slaughter his carabao,
and that it was denied him on the ground that the animal was not unfit "for agricultural work or
for draft purposes." Counsel for appellant contends that the statute, in so far as it undertakes
to penalize the slaughter of carabaos for human consumption as food, without first obtaining a
permit which can not be produced in the event that the animal is not unfit "for agricultural work
or for draft purposes," is unconstitutional and in violation of the terms of section 5 of the
Philippine Bill (Act of Congress, July 1, 1902), which provides that "no law shall be enacted
which shall deprive any person of life, liberty, or property without due process of law."
It is not quite clear from the argument of counsel whether his contention is that this
provision of the statute constitutes a taking of property for public use in the exercise of the
right of eminent domain without providing for the compensation of the owners, or that it is an
undue and unauthorized exercise of the police power of the State. But whatever may be the
basis of his contention, we are of opinion, appropriating, with necessary modifications
understood, the language of that great jurist, Chief Justice Shaw (in the case of
Com. vs. Tewksbury, 11 Met., 55, where the question involved was the constitutionality of a
statute prohibiting and penalizing the taking or carrying away by any person, including the
owner, of any stones, gravel, or sand, from any of the beaches in the town of Chelsea), that
the law in question "is not a taking of the property for public use, within the meaning of the
constitution, but is a just and legitimate exercise of the power of the legislature to regulate and
restrain such particular use of the property as would be inconsistent with or injurious to the
rights of the publics. All property is acquired and held under the tacit condition that it shall not
be so used as to injure the equal rights of others or greatly impair the public rights and
interests of the community."
It may be conceded that the beneficial use and exclusive enjoyment of the property
of all carabao owners in these Islands is to a greater or less degree interfered with by the
provisions of the statute; and that, without inquiring what quantum of interest thus passes from
the owners of such cattle, it is an interest the deprivation of which detracts from their right and
authority, and in some degree interferes with their exclusive possession and control of their
property, so that if the regulations in question were enacted for purely private purposes, the
statute, in so far as these regulations are concerned, would be a violation of the provisions of
the Philippine Bill relied on by appellant; but we are satisfied that it is not such a taking, such
an interference with the right and title of the owners, as is involved in the exercise by the State
of the right of eminent domain, so as to entitle these owners to compensation, and that it is no
more than "a just restraint of an injurious private use of the property, which the legislature had
authority to impose."
In the case of Com. vs. Alger (7 Cush., 53, 84), wherein the doctrine laid down in
Com. vs. Tewksbury (supra) was reviewed and affirmed, the same eminent jurist who wrote
the former opinion, in distinguishing the exercise of the right of eminent domain from the
exercise of the sovereign police powers of the State, 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 may be so regulated that it shall not be injurious to the equal enjoyment of
others having an equal right 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.
"This is very different from the right of eminent domain, the right
of a government to take and appropriate private property to public use,
whenever the public exigency requires it; which can be done only on
condition of providing a reasonable compensation therefor. The power we
allude to is rather the police power, the power vested in the legislature by
the constitution, to make, ordain, and establish all manner of wholesome and
reasonable laws, statutes, and ordinances, either with penalties or without,
not repugnant to the constitution, as they shall judge to be for the good and
welfare of the commonwealth, and of the subjects of the same.
"It is much easier to perceive and realize the existence and
sources of this power than to mark its boundaries or prescribe limits to its
exercise."
Applying these principles, we are of opinion that the restraint placed by the law on
the slaughter for human consumption of carabaos fit for agricultural work and draft purposes is
not an appropriation of property interests to a "public use," and is not, therefore, within the
principles of the exercise by the State of the right of eminent domain. It is in fact a mere
restriction or limitation upon a private use, which the legislature deemed to be detrimental to the
public welfare. And we think that an examination of the general provisions of the statute in
relation to the public interests which it seeks to safeguard and the public necessities for which
it provides, leaves no room for doubt that the limitations and restraints imposed upon the
exercise or rights of ownership by the particular provisions of the statute under consideration
were imposed not for private purposes but, strictly, in the promotion of the "general welfare" and
"the public interest" in the exercise of the sovereign police power which every State possesses
for the general public welfare and which "reaches to every species of property within the
commonwealth."
For several years prior to the enactment of the statute a virulent contagious or
infectious disease had threatened the total extinction of carabaos in these Islands, in many
sections sweeping away seventy, eighty, and in some cases as much as ninety and even one
hundred per cent of these animals. Agriculture being the principal occupation of the people, and
the carabao being the work animal almost exclusively in use in the fields as well as for draft
purposes, the ravages of the disease with which they were infected struck an almost vital blow
at the material welfare of the country. Large areas of productive land lay waste for years, and
the production of rice, the staple food of the inhabitants of the Islands, fell off to such an extent
that the impoverished people were compelled to spend many millions of pesos in its importation,
notwithstanding the fact that with sufficient work animals to cultivate the fields the arable rice
lands of the country could easily be made to produce a supply more than sufficient for its own
needs. The drain upon the resources of the Islands was such that famine soon began to make
itself felt, hope sank in the breasts of the people, and in many provinces the energies of the
breadwinners seemed to be paralyzed by the apparently hopeless struggle for existence with
which they were confronted.
To meet these conditions, large sums of money were expended by the Government
in relieving the immediate needs of the starving people, three millions of dollars were voted by
the Congress of the United States as a relief or famine fund, public works were undertaken to
furnish employment in the provinces where the need was most pressing, and every effort made
to alleviate the suffering incident to the widespread failure of the crops throughout the Islands,
due in large measure to the lack of animals fit for agricultural work and draft purposes.
Such measures, however, could only temporarily relieve the situation, because in
an agricultural community material progress and permanent prosperity could hardly be hoped
for in the absence of the work animals upon which such a community must necessarily rely for
the cultivation of the fields and the transportation of the products of the fields to market.
Accordingly efforts were made by the Government to increase the supply of these animals by
importation, but, as appears from the official reports on this subject, hope for the future
depended largely on the conservation of those animals which had been spared from the
ravages of the disease, and their redistribution throughout the Islands where the need for
them was greatest.
At large expense, the services of experts were employed, with a view to the
discovery and application of preventive and curative remedies, and it is hoped that these
measures have proved in some degree successful in protecting the present inadequate supply
of large cattle, and that the gradual increase and redistribution of these animals throughout the
Archipelago, in response to the operation of the laws of supply and demand, will ultimately
result in practically relieving those sections which suffered most by the loss of their work
animals.
As was to be expected under such conditions, the price of carabaos rapidly
increased from three to five fold or more, and it may fairly be presumed that even if the
conservative measures now adopted prove entirely successful, the scant supply will keep the
price of these animals at a high figure until the natural increase shall have more nearly
equalized the supply to the demand.
Coincident with and probably intimately connected with this sudden rise in the price
of cattle, the crime of cattle stealing became extremely prevalent throughout the Islands,
necessitating the enactment of a special law penalizing with the severest penalties the theft of
carabaos and the personal property by roving bands; and it must be assumed from the
enactment of the statute under consideration that the legislative authority found that the
general welfare of the Islands necessitated the enactment of special and somewhat
burdensome provisions for the branding and registration of large cattle, and the supervision
and restriction of their slaughter for food. It will hardly be questioned that the provisions of the
statute touching the branding and registration of such cattle, and prohibiting and penalizing the
slaughter of diseased cattle for food were enacted in the due and proper exercise of the police
power of the State; and we are of opinion that, under all the circumstances, the provisions of
the statute prohibiting and penalizing the slaughter for human consumption of carabaos fir for
work were in like manner enacted in the due and proper exercise of that power, justified by the
exigent necessities of existing conditions, and the right of the State to protect itself against the
overwhelming disasters incident to the further reduction of the supply of animals fit for
agricultural work or draft purposes.
It is, we think, a fact of common knowledge in these Islands, and disclosed by the
official reports and records of the administrative and legislative departments of the
Government, that not merely the material welfare and future prosperity of this agricultural
community were threatened by the ravages of the disease which swept away the work
animals during the years prior to the enactment of the law under consideration, but that the
very life and existence of the inhabitants of these Islands as a civilized people would be more
or less imperiled by the continued destruction of large cattle by disease or otherwise.
Confronted by such conditions, there can be no doubt of the right of the Legislature to adopt
reasonable measures for the preservation of work animals, even to the extent of prohibiting
and penalizing what would, under ordinary conditions, be a perfectly legitimate and proper
exercise of rights of ownership and control of the private property of the citizen. The police
power rests upon necessity and the right of self-protection, and if ever the invasion of private
property by police regulation can be justified, we think that the reasonable restriction placed
upon the use of carabaos by the provision of the law under discussion must be held to be
authorized as a reasonable and proper exercise of that power.
As stated by Mr. Justice Brown in his opinion in the case of Lawton vs. Steele (152
U. S., 133,136):
"The extent and limits of what is known as the police power have
been a fruitful subject of discussion in the appellate courts of nearly every
State in the Union. It is universally conceded to include everything essential
to the public safety, health, and morals, and to justify the destruction or
abatement, by summary proceedings, of whatever may be regarded as a
public nuisance. Under this power it has been held that the State may order
the destruction of a house falling to decay or otherwise endangering the lives
of passer-by; the demolition of such as are in the path of a conflagration; the
slaughter of diseased cattle; the destruction of decayed or unwholesome
food; the prohibition of wooden buildings in cities; the regulation of railways
and other means of public conveyance, and of interments in burial grounds,
the restriction of objectionable trades to certain localities; the compulsory
vaccination of children; the confinement of the insane or those affected with
contagious diseases; the restraint of vagrants, beggars, and habitual
drunkards; the suppression of obscene publications and houses of ill fame;
and the prohibition of gambling houses and places where intoxicating liquors
are sold. Beyond this, however, the State may interfere wherever the public
interests demand it, and in this particular 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. (Barbier vs. Connolly, 113 U. S., 27; Kidd vs. Pearson, 128 U. S.,
1.) To justify the State in thus interposing its authority in behalf of the public,
it must appear, first, that the interests of the public generally, as distinguished
from those of a particular classes, require such interference; and, second,
that the means are reasonably necessary for the accomplishment of the
purpose, and not unduly oppressive upon individuals. The legislature may
not, under the guise of protecting the public interests, arbitrarily interfere with
private business, or impose unusual and unnecessary restrictions upon
lawful occupations. In other words, its determination as to what is a proper
exercise of its police powers is not final or conclusive, but is subject to the
supervision of the courts."
From what has been said, we think it is clear that the enactment of the provisions of
the statute under consideration was required by "the interests of the public generally, as
distinguished from those of a particular class;" and that the prohibition of the slaughter of
carabaos for human consumption, so long as these animals are fit for agricultural work or draft
purposes was a "reasonably necessary" limitation on private ownership, to protect the
community from the loss of the services of such animals by their slaughter by improvident
owners, tempted either by greed of momentary gain, or by a desire to enjoy the luxury of animal
food, even when by so doing the productive power of the community may be measurably and
dangerously affected.
Chief Justice Redfield, in Thorpe vs. Rutland & Burlington R. R. Co. (27 Vt., 140),
said (p. 149) that by this "general police power of the State, persons and property are subjected
to all kinds of restraints and burdens, in order to secure the general comfort, health, and
prosperity of the State; of the perfect right in the legislature to do which, no question ever was,
or, upon acknowledged and general principles, ever can be made, so far as natural persons are
concerned."
And Cooley in his "Constitutional Limitations" (6th ed., p. 738) says:
"It would be quite impossible to enumerate all the instances in
which the police power is or may be exercised, because the various cases
in which the exercise by one individual of his rights may conflict with a similar
exercise by others, or may be detrimental to the public order or safety, an
infinite in number and in variety. And there are other cases where it becomes
necessary for the public authorities to interfere with the control by individuals
of their property, and even to destroy it, where the owners themselves have
fully observed all their duties to their fellows and to the State, but where,
nevertheless, some controlling public necessity demands the interference or
destruction. A strong instance of this description is where it becomes
necessary to take, use, or destroy the private property of individuals to
prevent the spreading of a fire, the ravages of a pestilence, the advance of
a hostile army, or any other great public calamity. Here the individual is in no
degree in fault, but his interest must yield to that 'necessity' which 'knows no
law.' The establishment of limits within the denser portions of cities and
villages within which buildings constructed of inflammable materials shall not
be erected or repaired may also, in some cases, be equivalent to a
destruction of private property; but regulations for this purpose have been
sustained notwithstanding this result. Wharf lines may also be established
for the general good, even though they prevent the owners of water-fronts
from building out on soil which constitutes private property. And, whenever
the legislature deem it necessary to the protection of a harbor to forbid the
removal of stones, gravel, or sand from the beach, they may establish
regulations to that effect under penalties, and make them applicable to the
owners of the soil equally with other persons. Such regulations are only ' as
just restraint of an injurious use of property, which the legislature have
authority' to impose.
"So a particular use of property may sometimes be forbidden,
where, by a change of circumstances, and without the fault of the owner, that
 which was once lawful, proper, and unobjectionable has now become a
public nuisance, endangering the public health or the public safety. Milldams
are sometimes destroyed upon this ground; and churchyards which prove,
in the advance of urban population, to be detrimental to the public health, or
in danger of becoming so, are liable to be closed against further use for
cemetery purposes."
These citations from some of the highest judicial and text — book authorities in the
United States clearly indicate the wide scope and extent which has there been given to the
doctrine of the sovereign police power of the State, and confirm us in our opinion that the
provision of the statute in question being a proper exercise of that power is not in violation of
the terms of section 5 of the Philippine Bill, which provide that "no law shall be enacted which
shall deprive any person of life, liberty, or property without due process of law," a provision
which itself is adopted from the Constitution of the United States, and is found in substance in
the constitution of most if not all of the States of the Union.
The judgment of conviction and the sentence imposed by the trial court should be
affirmed with the costs of this instance against the appellant. So ordered.
Arellano, C. J., Torres, Johnson, Moreland and Elliott, JJ., concur.
||| (U.S. v. Toribio, G.R. No. 5060, [January 26, 1910], 15 PHIL 85-100)
EN BANC
[G.R. No. 10255. August 6, 1915.]
THE UNITED STATES, plaintiff-appellant, vs.
SILVESTRE POMPEYA, defendant-appellee.
Solicitor-General Corpus for appellant.
Lawrence, Ross & Block for appellee.
SYLLABUS
1. PHILIPPINE LEGISLATURE; LEGISLATIVE POWER; MUNICIPAL PATROLS. —
The Philippine Legislature has power to legislate upon all subjects; affecting the people of the
Philippine Islands, which has not been delegated to Congress or expressly prohibited by the
Philippine Bill (Act of Congress of July 1,1902). (Gaspar vs. Molina, 6 Phil. Rep., 197; U. S. vs.
Bull, 16 Phil. Rep., 7.) Under said general power the Philippine Legislature has a right to require
able-bodied male residents of the different municipalities, between the ages of 18 and 60, to
assist, for a period not exceeding five days in any one month, in apprehending ladrones,
robbers, and other lawbreakers, and suspicious characters, and to act as patrols for the
protection of the municipality, not exceeding one day of each week. And also to require each
householder to report certain facts enumerated in the law.
2. CONSTITUTIONAL LAW; POLICE POWERS IN GENERAL. — The police power
of the state has been variously defined. It has been defined as the power of the government,
inherent in every sovereign, and cannot be limited; 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; the power 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; the authority to establish such rules
and regulations for the conduct of all persons as may be conducive to the public interest. The
police power of the state may be said to embrace the whole system of internal regulations by
which the state seeks, not only to preserve public order and to prevent offenses against the
state, but also to establish, for the intercourse of citizen with citizen, those rules of good manners
and good neighborhood which are calculated to prevent a conflict of rights, and to ensure to
each the uninterrupted enjoyment of his own, so far as is reasonably consistent with a like
enjoyment of the rights of others.
3. CRIMINAL LAW; SUFFICIENCY OF COMPLAINT. — Held: That the complaint
presented in the present case was not sufficient to show that the defendant was guilty of a
violation of Act No. 1309. The complaint in a criminal case must state every fact necessary to
make out an offense. The complaint must show on its face that if the facts alleged are true, an
offense has been committed. It must state explicitly and directly every fact and circumstance
necessary to constitute an offense. If the statute exempts certain persons, or class of persons,
from liability, then the complaint must show that the person charged does not belong to that
class.
DECISION
JOHNSON, J p:
On the 1st day of June, 1914, the acting prosecuting attorney of the Province of Iloilo
presented the following complaint in the Court of First Instance of said province: "The
undersigned fiscal charges Silvestre Pompeya with violation of the municipal ordinance of Iloilo,
on the subject of patrol duty, Executive Order No. 1, series of 1914, based on section 40 (m) of
the Municipal Code, in the following manner:
"That on or about March 20 of the current year, 1914, in the
jurisdiction of the municipality of Iloilo, Province of Iloilo, Philippine Islands,
the said accused did willfully, illegally, and criminally and without justifiable
motive fail to render service on patrol duty; an act performed in violation of
the law.
"That for this violation the said accused was sentenced by the
justice of the peace of Iloilo to a fine of P2 and payment of the costs of the
trial, from which judgment said accused appealed to the Court of First
Instance."
Upon said complaint the defendant was duly arraigned. Upon arraignment he
presented the following demurrer: "The defendant, through his undersigned attorneys, demurs
to the complaint filed in this case on the ground that the acts charged therein do not constitute
a crime."
In support of said demurrer, the defendant presented the following argument: "The
municipal ordinance alleged to be violated is unconstitutional because it is repugnant to the
Organic Act of the Philippines, which guarantees the liberty of the citizens."
Upon the issues thus presented, the Honorable J. S. Powell, judge, on the 22d day
of August, 1914, after hearing the arguments of the respective parties, sustained said demurrer
and ordered the dismissal of said complaint and the cancellation of the bond theretofore given,
with costs de officio.
From the order sustaining the demurrer of the lower court, the prosecuting attorney
appealed to this court.
It appears from the demurrer that the defendant claims that the facts stated in the
complaint are not sufficient to constitute a cause of action. In his argument in support of said
demurrer it appears that the real basis of said demurrer was the fact that the ordinance upon
which said complaint was based was unconstitutional, for the reason that it was contrary to the
provisions of the Philippine Bill which guarantees liberty to the citizens of the Philippine Islands.
 In this court the only question argued by the Attorney-General is whether or not the
ordinance upon which said complaint was based (paragraph "m" of section 40 of the Municipal
Code) which was adopted in accordance with the provisions of Act No. 1309 is constitutional.
Section 40 of Act No. 82 (the Municipal Code) relates to the power of municipal councils. Act
No. 1309 amends said section (section 40, paragraph "m") which reads as follows: "(m) With
the approval of the provincial governor, when a province or municipality is infested with ladrones
or outlaws (the municipal council is empowered):
"1. To authorize the municipal president to require able-bodied
male residents of the municipality, between the ages of eighteen and fifty
years, to assist, for a period not exceeding five days in any one month, in
apprehending ladrones, robbers, and other lawbreakers and suspicious
characters, and to act as patrols for the protection of the municipality, not
exceeding one day in each week. The failure, refusal, or neglect of any such
able-bodied man to render promptly the service thus required shall be
punishable by a fine not exceeding one hundred pesos or by imprisonment
for not more than three months, or by both such fine and imprisonment, in
the discretion of the court: Provided, That nothing herein contained shall
authorize the municipal president to require such service of officers or men
of the Army or Navy of the United States, civil employees of the United States
Government, officers or employees of the Insular Government, or the officers
or servants of companies or individuals engaged in the business of common
carriers on sea or land, or priests, ministers of the gospel,
physicians, practicantes, druggists or practicantes de farmacia actually
engaged in business, or lawyers when actually engaged in court
proceedings."
Said Act No. 1309 contains some other provisions which are not important in the
consideration of the present case.
The question which we have to consider is whether or not the facts stated in the
complaint are sufficient to show (a) a cause of action under the said law; and (b) whether or
not said law is in violation of the provisions of the Philippine Bill in depriving citizens of their
rights therein guaranteed.
We deem it advisable to consider the second question first.
It becomes important to ascertain the real purpose of said Act (No. 1309) in order
to know whether it covers a subject upon which the United States Philippine Commission
could legislate. A reading of said Act discloses (1) that it is an amendment of the general law
(Act No. 82) for the organization of municipal government; (2) that it is an amendment of
section 40 of said Act No. 82, by adding thereto paragraph "m;" (3) that said section 40
enumerates some of the powers conferred upon the municipal council; (4) that said
amendment confers upon the council additional powers. The amendment empowers the
municipal council, by ordinance, to authorize the president: (a) To require able-bodied male
residents of the municipality, between the ages of 18 and 55 [50], to assist, for a period not
exceeding five days in any one month, in apprehending ladrones, robbers, and other
lawbreakers and suspicious characters, and to act as patrols for the protection of the
municipality, not exceeding one day each week; (b) To require each householder to report
certain facts, enumerated in said amendment.
The specific purpose of said amendment is to require each able-bodied male
resident of the municipality, between the ages of 18 and 55 [50], as well as each householder,
when so required by the president, to assist in the maintenance of peace and good order in
the community, by apprehending ladrones, etc., as well as by giving information of the
existence of such persons in the locality. The amendment contains a punishment for those
who may be called upon for such service, and who refuse to render the same.
Is there anything in the law, organic or otherwise, in force in the Philippine Islands,
which prohibits the central Government, or any governmental entity connected therewith, from
adopting or enacting rules and regulations for the maintenance of peace and good
government? May not the people be called upon, when necessary, to assist, in any
reasonable way, to rid the state and each community thereof, of disturbing elements? Do not
individuals whose rights are protected by the Government, owe some duty to such, in
protecting' it against lawbreakers, and the disturbers of the quiet and peace? Are the sacred
rights of the individual violated when he is called upon to render assistance for the protection
of his protector, the Government, whether it be the local or general Government? Does the
protection of the individual, the home, and the family, in civilized communities, under
established government, depend solely and alone upon the individual? Does not the individual
owe something to his neighbor, in return for the protection which the law affords him against
encroachment upon his rights, by those who might be inclined so to do? To answer these
questions in the negative would, we believe, admit that the individual, in organized
governments, in civilized society, where men are governed by law, does not enjoy the
protection afforded to the individual by men in their most primitive relations.
If tradition may be relied upon, the primitive man, living in his tribal relations before
the days of constitutions and states, enjoyed the security and assurance of assistance from
his fellows when his quiet and peace were violated by malhechores. Even under the feudal
system, a system of land holdings by the Teutonic nations of Europe in the eleventh, twelfth,
and thirteenth centuries, the feudal lord exercised the right to call upon all his vassals of a
certain age to assist in the protection of their individual and collective rights. (Book 2, Cooley's
Blackstone's Commentaries, 44; 3 Kent's Commentaries, 487; Hall, Middle Ages; Maine,
Ancient Law; Guizot, History of Civilization; Stubbs' Constitutional History of England;
Chisholm vs. Georgia, 2 Dall. (U. S.), 419; DePeyster vs. Michael, 6 N. Y., 467.) Each vassal
was obliged to render individual assistance in return for the protection afforded by all.
The feudal system was carried into Britain by William the Conqueror in the year
1085 with all of its ancient customs and usages.
We find in the days of the "hundreds," which meant a division of the state occupied
by one hundred free men, the individual was liable to render service for the protection of all.
(Book 3, Cooley's :Blackstone's Commentaries, 160, 245, 293, 411.) In these "hundreds" the
individual "hundred or," in case of the commission of a crime within the county or by one of the
"hundredors," as against another "hundred," was obliged to join the "hue and cry" (hutesium et
clamor) in the pursuit of the felon. This purely customary ancient obligation was later made
obligatory by statute. (Book 4, Cooley's Blackstone's Commentaries, 294; 3 Edward I.,
Chapter 9; 4 Edward I., Chapter 2; 13 Edward I., Chapters 1 and 4.)
Later the statute provided and directed: "That from thenceforth every county shall
be so well kept, that, immediately upon robberies and felonies committed, fresh suit shall be
made from town (pueblo) to town, and from county to county; and that "hue and cry" shall be
raised upon the felons, and they that keep the town (pueblo) shall follow with "hue and cry,"
with all the town (pueblo), and the towns (pueblos) near, and so "hue and cry" shall be made
from town (pueblo) to town, until they be taken and delivered to the sheriff."
Said statute further provided that in case the "hundred" failed to join the "hue and
cry" that it should be liable for the damages done by the malhechores. Later, by statute (27th
Elizabeth, chapter 13) it was provided that no "hue and cry" would be sufficient unless it was
made with both horsemen and footmen. The "hue and cry" might be raised by a justice of the
peace, or by any peace officer, or by any private person who knew of the commission of the
crime.
This ancient obligation of the individual to assist in the protection of the peace and
good order of his community is still recognized in all well-organized governments in the "posse
comitatus" (power of the county, poder del condado). (Book 1 Cooley's Blackstone's
Commentaries, 343; Book 4, 122.) Under this power, those persons in the state, county, or
town who were charged with the maintenance of peace and good order were bound, ex officio,
to pursue and to take all persons who had violated the law. For that purpose they might
command all the male inhabitants of a certain age to assist them. This power is called "posse
comitatus" (power of the county). This was a right well recognized at common law. Act No.
1309 is a statutory recognition of such common-law right. Said Act attempts simply to
designate the cases and the method when and by which the people of the town (pueblo) may
be called upon to render assistance for the protection of the public and the preservation of
peace and good order. It is an exercise of the police power of the state. Is there anything in
the organic or statutory law prohibiting the United States Philippine Commission from adopting
the provisions contained in said Act No. 1309?
While the statement has its exceptions, we believe, generally speaking, that the
United States Commission, and now the Philippine Legislature, may legislate and adopt laws
upon all subjects not expressly prohibited by the Organic Law (Act of Congress of July 1,
1902) or expressly reserved to Congress. Congress did not attempt to say to the Philippine
Legislature what laws it might adopt. Congress contented itself by expressly indicating what
laws the Legislature should not adopt, with the requirement that all laws adopted should be
reported to it, and with the implied reservation of the right to nullify such laws as might not
meet with its approval.
Considering the Organic Act (Act of Congress of July 1, 1902) as the real
constitution of the United States Government in the Philippine Islands, and its inhibitions upon
the power of the Legislature, we believe an analogy may be drawn relating to the difference
between the Constitution of the United States and the constitution of the different States, with
reference to what laws may be adopted by the different States. While the statement needs
much explanation, the general rule is that Congress has authority to legislate only upon the
questions expressly stated in the Constitution of the United States, while the state legislature
may legislate upon all questions, not expressly conferred upon Congress, nor prohibited in its
constitution. In other words, an examination of the Constitution of the United States discloses
the subject matter upon which Congress may legislate, while an examination of the
constitutions of the different States must be made for the purpose of ascertaining upon what
subjects the state legislature can not legislate. Stating the rule in another way — the
Constitution of the United States permitsCongress to legislate upon the following subjects; the
constitutions of the States prohibit the state legislature from legislating upon the following
subjects. Generally, then, the legislature of a State may adopt laws upon any question not
expressly delegated to Congress by the Constitution of the United States or prohibited by the
constitution of the particular State.
We think that is the rule which should be applied to the Philippine Legislature. The
Philippine Legislature has power to legislate upon all subjects affecting the people of the
Philippine Islands, which has not been delegated to Congress or expressly prohibited by said
Organic Act. (Gaspar vs. Molina, 5 Phil. Rep., 197; U. S. vs. Bull, 15 Phil. Rep., 7.)
The right or power conferred upon the municipalities by Act No. 1309 falls within
the police power of the state. (U. S. vs. Ling Su Fan, 10 Phil. Rep., 104.) Police power of the
state has been variously defined. It has been defined as the power of government, inherent in
every sovereign, and cannot be limited; (License Cases, 5 How. (U. S.), 483). 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 Cush. (Mass.), 53, 85). The power 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, etc., Co., 27
Vt:, 140, 149.) The authority to establish such rules and regulations for the conduct of all
persons as may be conducive to the public interest. (People vs. Budd, 117 N. Y., 1, 14; U.
S. vs. Ling Su Fan, supra.) Blackstone, in his valuable commentaries on the common law,
defines police power as "the defenses, regulations, 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 Com., 162.)
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 public order and to prevent offenses
against the state, but also to establish, for the intercourse of citizen with citizen, 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 the rights of others. The police power of the state includes
not only the 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
the courts refuse to lay down a general rule defining it, but decide each specific case on its
own merits. (Harding vs. People, 32 L. R. A., 445.)
The police power of the state has been exercised in controlling and regulating
private business, even to the extent of the destruction of the property of private persons, when
the use of such property became a nuisance to the public health and convenience. (Slaughter
House Cases, 16 Wal. (U. S.), 36; Minnesota vs. Barber, 136 U. S., 313; Powell vs.
Pennsylvania, 127 U. S., 678; Walling vs. People, 116 U. S., 446; U. S. vs. Ling Su Fan, 10
Phil. Rep., 104.)
We are of the opinion, and so hold, that the power exercised under the provisions
of Act No. 1309 falls within the police power of the state and that the state was fully authorized
and justified in conferring the same upon the municipalities of the Philippine Islands, and that,
therefore, the provisions of said Act are constitutional and not in violation nor in derogation of
the rights of the persons affected thereby.
With reference to the first question presented by the appeal, relating to the
sufficiency of the complaint, it will be noted that Act No. 1309 authorized the municipal
governments to establish ordinances requiring (a) all able-bodied male residents, between the
ages of 18 and 55 [50], and (b) all householders, under certain conditions, to do certain things.
It will also be noted that the law authorizing the president of the municipality to call
upon persons, imposes certain conditions as prerequisites: (1) The person called upon to
render such services must be an able-bodied male resident of the municipality; (2) he must be
between the ages of 18 and 55 [50], and (3) certain conditions must exist requiring the
services of such persons.
It will not be contended that a nonresident of the municipality would be liable for his
refusal to obey the call of the president; neither can it be logically contended that one under
the age of 18 or over the age of 55 [50] would incur the penalty of the law by his refusal to
obey the command of the president. Moreover, the persons liable for the service mentioned in
the law cannot be called upon at the mere whim or caprice of the president. The conditions
 mentioned in the law must exist. There must be some just and reasonable ground, at least
sufficient in the mind of a reasonable man, before the president can call upon the persons for
the service mentioned in the law. The law does not apply to all persons. The law does not
apply to every condition. The law applies to special persons and special conditions.
A complaint based upon such a law, in order to be free from objection under a
demurrer, must show that the person charged belongs to the class of persons to which the law
is applicable. For example, under the Opium Law, certain persons are punishable criminally
for having opium in their possession. The law permits certain persons to have opium in their
possession. All possessors of opium are not liable under the law. A complaint, therefore,
charging a person with the possession of opium, without alleging that he did not belong to the
class which are permitted to possess it, would be objectionable under a demurrer, because all
persons are not liable. The complaint must show that the one charged with the possession of
the opium was not one of the persons who might legally possess opium. Suppose, for another
example, that there was a law providing that all persons who performed manual labor on
Sunday should be punished, with a provision that if such labor should be performed out of
necessity, the person performing it would not be liable. In such a case, in the complaint, in
order to show a good cause of action, it would be necessary to allege that the labor was not
performed under necessity. In other words, the complaint, in order to be free from objection
raised by a demurrer, must show that the person accused of the crime, in the absence of
proof, is punishable under the law. One who performed labor under necessity would not be
liable. The complaints, in the foregoing examples, in the absence of an allegation which
showed that the party accused did not belong to the exempted class, would not be good. In
the absence of such negations, the courts would be unable to impose the penalty of the law,
because, perchance, the defendant might belong to the exempt class. The complaint, in a
criminal case, must state every fact necessary to make out an offense. (U. S. vs. Cook, 17
Wall. (U. S.), 168.) The complaint must show, on its face that, if the facts alleged are true, an
offense has been committed. It must state explicitly and directly every fact and circumstance
necessary to constitute an offense. If the statute exempts certain persons, or classes of
persons, from liability, then the complaint should show that the person charged does not
belong to that class.
Even admitting all of the facts stated in the complaint in the present case, the court
would be unable to impose the punishment provided for by law, because it does not show (a)
that the defendant was a male citizen of the municipality; (b) that he was an able-bodied
citizen; (c) that he was not under 18 years of age nor over 55 [50]; nor (d) that conditions
existed which justified the president of the municipality in calling upon him for the services
mentioned in the law. For all of the foregoing reasons, the judgment of the lower court is
hereby affirmed, with costs. So ordered.
Arellano, C.J., Torres, Carson and Araullo, JJ., concur.
||| (U.S. v. Pompeya, G.R. No. 10255, [August 6, 1915], 31 PHIL 245-257)
FIRST DIVISION
[G.R. No. 6157. July 30, 1910. 1 ]
W. CAMERON FORBES, J. E. HARDING, and C.R. TROWBRIDGE,
plaintiffs, vs. CHUOCO TIACO (alias CHOA TEA) and A.S.
CROSSFIELD, defendants.
W.A. Kincaid, for plaintiffs.
O'Brien & De Witt and Hartford Beaumont, for defendant Chuoco Tiaco.
SYLLABUS
Per JOHNSON, J.:
1. THE GOVERNMENT OF THE UNITED STATES IN THE PHILIPPINE ISLANDS,
POWERS OF. — The government the United States in the Philippine Islands is a government
possessed with "all the military, civil, and judicial powers necessary to govern the Philippine
Islands" and as such has the power, through its political department, to deport aliens whose
presence in the territory is found to be injurious to the public good and the domestic tranquility
of the people. Deportation or expulsion is a police measure having for its object the purging of
the State of obnoxious foreigners. It is a sort of national disinfect.
2. THE GOVERNOR-GENERAL, POWERS OF. — The Governor-General, acting in
his political and executive capacity, is invested with plenary power to deport obnoxious aliens
whose continued presence in the territory is found by him to be injurious to the public interest,
and in the absence of express and prescribed rules as to the method of deporting or expelling
them, he may use such methods as his official judgment and good conscience may indicate.
3. GOVERNMENT, SEPARATE DEPARTMENTS OF; ONE DEPARTMENT
SHOULD NOT INTERFERE WITH THE PERFORMANCE OF THE DUTIES OF ANOTHER. —
In a government of separate and independent departments, executive, legislative, and judicial,
with separate and distinct functions, one department will not attempt to interfere with the
performance of the exclusive duties of another. To permit such an interference would destroy
the independence of the separate departments and would make one subject to the control of
the others. For the judiciary to interfere, for the purpose of questioning the manner of exercising
the legal and political duties of the chief executive of the Government or to control the action of
the legislative department, would, in effect, destroy the independence of the departments
subject to the ultimate control of the judicial. Such a conclusion or condition was never
contemplated by the organizers of the Government.
4. AGENTS OF THE GOVERNMENT, RATIFICATION OF ACTS OF. — an act done
by an agent of the Government, though in excess of his authority, being ratified and adopted by
the Government, is held to be equivalent to previous authority.
5. ALIEN, RIGHT OF HIS GOVERNMENT TO RECALL HIM FROM FOREIGN
TERRITORY. — The mere fact that a citizen or subject is out of the teritory of his country does
not relieve him from that alligiance which he owes to his government, and his government may,
under certain conditions, properly and legally request his return. Such request for his return is
a sufficient justification on the part of the authority of the country in which he resides for his
deliverence to a proper agent or authority that he may be carried to his native land.
6. "DUE PROCESS OF LAW." — 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 individual rights as those maxims prescribe for the class of
cases to which the one in question belongs. It has been repeatedly decided when a government
is dealing with the political rights of aliens that it is not governed by that "due process of law"
which governs it in dealing with the civil rights of aliens. It is familiar that what is due process of
law depends on the particular circumstances. It varies with the subject-matter and the
necessities of the situation. Thus summary proceedings suffice for taxes and executive
decisions for the exclusion of aliens from the country. Property may be taxed and sold for the
payment of such taxes without the owner thereof having had any notice whatever either of the
levy or the sale.
7. ALIENS; CERTIFICATE OF ADMISSION, REVOCATION OF. — An alien can not
insist upon residing in a foreign territory simply because he holds a certificate of admission
justifying his right to remain therein, as against an act of the executive department of the
government which attempts to deport him. The certificate is a mere license and may be revoked
by the government at any time. An alien's right to remain in the territory of a foreign government
is purely a political one and may be terminated at the will of such government.
8. CHIEF EXECUTIVE HEAD OF THE STATE, DUTIES OF. — Generally the duties
of the chief executive authority of the State are defined by a constitution or by a law. There are
certain inherent powers, however, vested in the chief executive authority of the State which are
universally denominated political, which may or may not e defined either by the constitution or
by law. These inherent powers would continue to exist for the preservation of the life and
integrity of the State and the peace and quietude of its people, even though the constitution
were destroyed and every letter of the statutes were repealed. This must necessarily be true,
or, otherwise, the hands of the chief executive authority of the Government might, at times, be
paralyzed in his efforts to maintain the existence of the Government. The United States
Government never intended to create in the Philippine Islands a Government without giving it
adequate power to preserve itself and to protect the highest interests of the people of the
Achipelago.
9. GOVERNOR-GENERAL NOT LIABLE IN DAMAGES FOR THE PERFORMANCE
OF A LEGAL DUTY. — No one can be held legally responsible in damages, or otherwise, for
doing in a legal manner what he had authority under the law to do. The Governor-General had
authority, under the law, to deport or expel the defendants, and the circumstance justifying the
deportation and the method of carrying it out are left to him. He can not, therefore, be held liable
in damages for the exercise of such power.
Per MORELAND, J., with whom concurs TRENT, J., concurring:
10. GOVERNOR-GENERAL AND JUDGES; EXEMPTION FROM CIVIL LIABILITY.
— The same general considerations of public policy and convenience which demand for judges
of courts of superior jurisdiction immunity from civil suits for damages arising from acts done by
them in the course of the performance of their official functions apply to the acts of the Governor-
General of the Philippine Islands when engaged in the discharge of the duties imposed upon
him by law.
11. EXEMPTION OF JUDGES; IMMUNITY RESTS ON PUBLIC POLICY. — The
exemption from liability of the judges of courts of superior jurisdiction for acts performed in the
discharge of their official duty rests in public policy.
12. ID; THE TEST OF JUDICIAL LIABILITY. — The test of judicial liability is not
jurisdiction. Such liability depends wholly upon the nature of the question which is being
determined when the error complained of is committed by the court. If such question is one of
determination of which requires the exercise of judicial functions, the judge is not liable, even
though there is in reality an absolute failure of jurisdiction over the whole subject-matter,
13. ID.; NOT LIABLE IN DAMAGES WHILE EXERCISING JUDICIAL FUNCTIONS.
— Whenever and wherever a judge of a court of superior jurisdiction exercises judicial functions,
he will not be personally liable in civil damages for the result of his action, utterly regardless of
whether he ever had jurisdiction of the subject-matter of the action or not.
14. ID.; ID.; THE RULE OF LIABILITY. — The rule of liability is: If the question is one
which a judge, qualified in the average way for the position occupied by the offending judge or
for a similar judicial position, would regard as a real question, then it is one whose determination
requires the exercise of judicial functions. But if it is one so clear that a judge, qualified as
aforesaid, would not regard as a real question, then it is one whose determination does not
require the exercise of judicial functions. In the former case, the judge is not liable; in the latter,
he is.
15. ID.; ID.; A JUDGE ACTS JUDICIALLY WHEN DECIDING WHETHER HE HAS
JURISDICTION; JURISDICTION TO DETERMINE THE QUESTION OF JURISDICTION. — A
judge acts judicially as purely and as perfectly when he is determining, at the very inception of
the proceeding, the question of whether or not he has any jurisdiction whatever in the premises,
as he does when, later in the case, he decides what the extent of that jurisdiction is. The court
always has jurisdiction to determine whether it has jurisdiction over the subject-matter before it.
16. ID.; ID.; EXEMPTION FROM CIVIL LIABILITY NOTWITHSTANDING BAD
MOTIVES. — The exemption of judges from civil liability can not be affected by the motives with
which their judicial acts are performed. The purity of their motives can not, in this way, be the
subject of judicial inquiry in a civil action. (Bradley vs. Fisher, 80 U.S., 335)
17. ID.; ID.; NOT LIABLE IN CIVIL ACTION FOR ACTING IN EXCESS OF
JURISDICTION; ALTHOUGH ACTING CORRUPTLY. — Judges of courts of superior or
general jurisdiction are not liable in civil actions for their judicial acts, even when such acts are
in excess of their jurisdiction and are alleged to have been done maliciously or corruptly.
(Bradley vs, Fisher, 80 U.S. 335)
18. THE JUDICIARY CAN NOT MULCT THE GOVERNOR-GENERAL IN
DAMAGES. — The judiciary can not mulct the Governor-General personally in damages which
result from the performance of his official duty any more than it can a member of the Philippine
Commission or the Philippine Assembly. Public policy forbids it.
19. THE JUDICIARY HAS THE POWER TO DECLARE AN ACT OF THE
GOVERNOR-GENERAL ILLEGAL AND VOID. — The judiciary has full power to, and will when
the matter is properly presented to it and the occasion justly warrants it, declare an act of the
Governor-General illegal and void, and place as nearly as possible instatus quo any person who
has been deprived of his liberty or his property by such act. This remedy is assured to every
person, however humble or whatever country, when his personal or property rights have been
invaded, even by the highest authority of the State.
20. THE GOVERNOR-GENERAL IS LIABLE WHEN HE ACTS OUTSIDE OF HIS
POWER WITHOUT EXERCISING DISCRETION AND JUDGMENT. — The chief executive is
liable when he acts in a case so clearly outside of his power and authority that he can not be
said to have exercised discretion and judgment, that is, the judicial faculty, in determining
whether he had authority or not. In such case he acts, not as Governor-General, but as a private
individual, and, as such, must answer for the consequences of his act.
21. GOVERNOR-GENERAL'S AUTHORITY TO DETERMINE WHETHER HE HAS
AUTHORITY TO DEPORT ALIENS; NOT LIABLE IN DAMAGES. — It appearing in the case at
bar that the question whether or not the Governor-General had power and authority to expel a
domiciled alien being one the determination of which required the exercise of the judicial faculty,
it being a question concerning the results reached on the resolution of which two men, qualified
in the usual way for the position he occupied, might really differ, he can not be held personally
liable for the damages resulting from an act performed in pursuance of such determination, even
though he was wrong in such determination and the at performed in pursuance thereof was in
violation of law. By virtue of the nature of his functions, he is as much under the obligation and
the necessity of determining whether he has the power and authority to act, as he is of acting
when that power and authority are conceded. He should, therefore, be protected in that
determination within the limits heretofore stated.
DECISION
JOHNSON, J p:
 An original action commenced in this court to secure a writ of prohibition against the
Hon. A.S. Crossfield, as one of the judges of the Court of first Instance of the city of Manila, to
prohibit him from taking or continuing jurisdiction in a certain case commenced and pending
before him, in which Chuoco Tiaco (alias Choa Tea) (respondent herein) is plaintiff, and W.
Cameron forbes, J.E. Harding, and C.R. Trowbridge (petitioners herein) are defendants.
Upon the filing of the petition in this court, Mr. Justice Trent granted a preliminary
injunction restraining the said lower court from proceeding in said cause until the question could
be heard and passed upon by the Supreme Court.
The questions presented by those action are so important and the result of the
conclusions may be so far reaching that we deem it advisable to make a full statement of all of
the facts presented here for consideration. These facts may be more accurately gathered from
the pleadings. They are as follows:
FACTS.
"SECOND AMENDED COMPLAINT"
"The plaintiffs set forth:
"I. That all the parties in this case reside in the city of Manila,
Philippine Islands.
"II. That the plaintiff W. Cameron Forbes is the Governor-General
of the Philippine Islands and that the plaintiffs J.E. Harding and C.R.
Trowbridge are, respectively, chief of police and chief of the secret service
of the city of Manila.
"III. That the defendant A.S. Crossfield is one of the judges of the
Court of First Instance of the city of Manila.
"IV. That the defendant Chuoco Tiaco (Alias Choa Tea) is a
foreigner of Chinese nationality and a subject of the Chinese Empire.
"V. That on the 1st of April, 1910, the defendant Chuoco Tiaco
(alias Choa Tea) filed a suit in the Court of First Instance of the city of Manila
against the plaintiffs in which substantially the following allegations and
petition were made, alleging that on the 19th of August, 1909, under the
orders of the said W. CameronForbes, Governor-General of the Philippine
Islands, he was deported therefrom and sent to Amoy, China, by the
aforesaid J.E. Harding and C.R. Trowbridge, chiefs, as above stated, of the
police and of the secret service, respectively, of the city of Manila and that
having been able to return to these Islands he feared, as it was threatened,
that he should be again deported by the said defendants, concluding with a
petition that a preliminary injunction should be issued against the plaintiffs in
this case prohibiting them from deporting the defendant, Chuoco Tiaco
(alias Choa Tea), and that they be sentenced to pay him P20,000 as an
indemnity.
"VI. It is true that the said defendant Chuoco Tiaco (alias Choa
Tea) was, with eleven others of his nationality, expelled from these Islands
and returned to China by the plaintiffs J.E. Harding and C.R. Trowbridge,
under the orders of the plaintiff w. Cameron Forbes, on the date mentioned
in Paragraph V of this complaint, but the said expulsion was carried out in
the public interest of the Government and at the request of the proper
representative of the Chinese Government in these Islands, to wit, the
consul-general of said country, the said W. Cameron Forbes acting in his
official capacity as such Governor-General, the act performed by this plaintiff
being one of the Government itself and which the said plaintiff immediately
reported to the Secretary of War.
"VII. the said complaint having been filed with the defendant A.S.
Crossfield, he, granting the petition, issued against the plaintiffs the
injunction requested, prohibiting them from deporting the
defendant Chuoco Tiaco (alia Choa Tea).
"VIII. The plaintiffs, having been summoned in the matter of the
said complaint, filed a demurrer against the same and presented a motion
asking that the injunction be dissolved, the grounds of the demurrer being
that the facts set out in the complaint did not constitute a motive of action,
and that the latter was one in which the court lacked jurisdiction to issue such
an injunction against the plaintiffs for the reasons set out in the complaint;
notwithstanding which, the defendant A.S. Crossfield overruled the demurrer
and disallowed the motion, leaving the complaint and the injunction standing,
in proof of which the plaintiffs attach a certified copy by the clerk of the Court
of First Instance of the city of Manila of all the proceedings in said case,
except the summons and notifications, marking said copy 'Exhibit A' of this
complaint. (See below.)
"IX. The Court of First Instance, according to the facts related in
the complaint, lacks jurisdiction in the matter, since the power to deport
foreign subjects of the Chinese Empire is a primitive one of the Governor-
General of these Islands, and the defendant A.S. Crossfield exceeded his
authority by trying the case and issuing the injunction and refusing to allow
the demurrer and motion for the dismissal of the complaint and the
dissolution of the injunction.
"Therefore, the plaintiffs pray the court:
"(a) That an injunction immediately issue against the defendant
A. S. Crossfield ordering him to discontinue the trial of said cause until further
orders from this court;
"(b) That the defendants being summoned in accordance with
law, a prohibitive order issue against the said defendant A.S. Crossfield,
restraining him from assuming jurisdiction in said cease from the trial before;
"(c) Finally, that the plaintiffs be granted such order and further
relief to which they may be entitled according to the facts, and that they may
be allowed the costs of the trial.
"Manila, July 9, 1910.
"IGNACIO VILLAMOR,
"Attorney-General.
"W. A. KINCAID,
"THOMAS L. HARTIGAN,
"By W.A. KINCAID,
 "Attorneys for the plaintiffs.
"UNITED STATES OF AMERICA,
"Philippine Islands, city of Manila, ss:
"W.A. Kincaid, being first duly sworn, states that he is one of the
attorneys for the plaintiffs in the preceding second amended complaint, and
that all the facts alleged therein are true, to the best of his knowledge and
belief.
(Signed) "W.A. KINCAID.
"Subscribed and sworn to before me this 9th day July, 1910.
Cedula No. F. 1904, issued in Manila on January 3, 1910.
(Signed) "IGNACIO DE ICAZA.
Notary Public.
(My appointments ends Dec. 31, 1910.)
"We have received a copy of the above.
(Signed) "O'BRIEN & DEWITT,
"HARTFORD BEAUMONT,
"Attorneys for defendants."
"EXHIBIT A.
"[United States of America, Philippine Islands. In the Court of
First Instance of the city of Manila. No. 7740. Chuoco Tiaco (alias Choa
Tea), plaintiff, vs W. CameronForbes, Charles R. Trowbridge, and J.E.
Harding, defendant.
"COMPLAINT.
"Comes now the plaintiff, by his undersigned attorneys, and for
cause of action alleges:
"First. That the plaintiff is and has been for the last thirty-five years
a resident of the city of Manila, Philippine Islands.
"Second. That the defendant W. Cameron Forbes is the
Governor-General of the Philippine Islands and resides in the municipality of
Baguio, Province of Benguet, Philippine Islands; that the defendant Charles
R. Trowbridge is chief of the secret service of the city of Manila, and that the
defendant J.E. Harding is chief of police of Manila, and that both of said
defendants reside in the said city of Manila, Philippine Islands.
"Third. That the said plaintiff is a Chinese person and is lawfully
a resident of the Philippine Islands, his right to be and remain therein having
been duly established in accordance with law by the Insular customs and
immigration authorities.
"Fourth. That on or about the 19th day of August, 1908, the
defendants herein, Charles R. Trowbridge and J.E. Harding, unlawfully and
fraudulently conspiring and conniving with the other defendant herein, the
said W. Cameron Forbes, and acting under the direction of the said
defendant, W. Cameron Forbes, did unlawfully seize and carry on board the
steamer Yuensang the said plaintiff herein against his will, with the intent by
said force to unlawfully deport and expel the said plaintiff herein from the
Philippine Islands against the will of the said plaintiff herein.
"Fifth. That the said defendants herein and each of them, after
forcibly placing the said plaintiff herein upon the said steamer Yuensang, as
hereinbefore alleged, did cause the said steamer Yuensang to take and
carry away the plaintiff herein from the Philippine Islands to the port of Amoy,
in the Empire of China.
"Sixth. That the said defendants herein, unlawfully conspiring and
conniving together, the said Charles R. Trowbridge and the said J.E.
Harding, acting under the direction of the said defendant, W.
Cameron Forbes, did forcibly prevent the plaintiff herein from returning to
these Philippine Islands until the 29th day of March, 1910.
"Seventh. That the defendants herein, by their unlawful acts
hereinbefore alleged, have damaged the plaintiff herein in the sum of twenty
thousand pesos (P20,000) Philippine currency.
"SECOND CAUSE OF ACTION.
"As a second cause of action the plaintiff alleges:
"First. He repeats and reiterates each and every allegation
contained in the first (1st) and (2d) paragraphs of the first cause of action
and hereby makes the said paragraphs a part of this cause of action.
"Second. That the said plaintiff herein is a Chinese person who is
and has been a resident of the Philippine Islands for the last twenty-nine
years, he having duly established his right to be and remain in the Philippine
Islands since the American occupation thereof in accordance with law.
"Third. That the said plaintiff herein, during his residence in these
Islands, has acquired and is actually the owner, or part owner, of property
and business interests and enterprises of great value within the Philippine
Islands, and that the said property and business interests and enterprises
require the personal presence of the plaintiff herein in the Philippine Islands
for the proper management and supervision and preservation thereof.
"Fourth. That the said plaintiff has a family in the Philippine
Islands and that said family is dependent upon the said plaintiff for support
and that it is impossible for the said plaintiff to give the said family that
support unless he, the said plaintiff, is actually present within the Philippine
Islands.
"Fifth. That on or about the 19th day of August, 1909, the
defendants herein, Charles R. Trowbridge and J.E. Harding, unlawfully and
fraudulently conspiring and conniving with the other defendant herein, the
said W. Cameron Forbes, acting under the direction of the said defendant,
W. Cameron Forbes, did unlawfully seize and carry on board the
steamer Yuensang the said plaintiff herein with the intent by said force to
unlawfully deport and expel the said plaintiff herein from the Philippine
Islands against the will of the said plaintiff herein.
 "Sixth. That, notwithstanding the efforts of the said defendants
herein to forcibly and unlawfully prevent the said plaintiff herein from
returning to the Philippine Islands, the said plaintiff herein returned to the
said city of Manila, Philippine Islands, on the 29th day of March, 1910, and
was duly landed by the customs and immigration authorities in accordance
with law, after having duly established his right to be and to remain herein.
"Seventh. That since the arrival of the said plaintiff herein in the
Philippine islands on the 29th day of March, 1910, as hereinbefore alleged,
the said defendants herein unlawfully and fraudulently conniving and
conspiring together, the said J.E. Harding and Charles R. Trowbridge, acting
under the orders and directions of the said defendant, W. Cameron Forbes,
have threatened, unlawfully, forcibly, and against the will of the plaintiff
herein to expel and deport plaintiff herein from the Philippine Islands, and
that the defendants herein, and each and every one of them are doing all
that is in their power to procure the unlawful, forcible, and involuntary
expulsion of the plaintiff herein from the Philippine Islands in violation of the
right of the said plaintiff herein from the Philippine Islands in violation of the
right of the said plaintiff herein to be and to remain in the Philippine Islands
as established by law.
"Eighth. That the plaintiff herein has no adequate remedy other
than that herein prayed for.
"Wherefore, the plaintiff prays that a temporary writ of injunction
issue out of this court enjoining the said defendants and each of them and
their and each of their agents, servants, employees, attorneys, successors
in office, subordinate officers, and every person in any way in privity with
them, from expelling or deporting or threatening to expel or deport or procure
in any way the expulsion or deportation in any way of the plaintiff herein
during the continuance of this action.
"And upon the final hearing of the cause the said temporary writ
of injunction be made perpetual, and that the defendants and each of them
be condemned to pay to the plaintiff herein the sum of twenty thousand
pesos (P20,000) damages and the costs of this action.
"Manila, P.I., April 1, 1910.
(Signed) "O' BRIEN & DEWITT,
"H. BEAUMONT,
"Attorneys for plaintiff.
"CITY OF MANILA, Philippine Islands, ss:
"C.W. O'Brien, holding cedula No. 1095, dated at Manila, P.I.,
January 4, 1910, being duly sworn, upon oath deposes and says that he is
one of the attorneys for the plaintiff and has read the above-entitled
complaint and knows that the facts therein stated are true and correct,
except such as are stated upon information and belief, and as to those he
believes them to e true.
(Signed) "C.W. O'BRIEN.
"Subscribed and sworn to before me this 1st day of April, 1910
at Manila, P.I.
(Signed) "J. MCMICKING."
The Hon. A.S. Crossfield issued the following order:
"ORDER.
"To the defendants, W. Cameron Forbes, Charles R. Trowbridge,
J.E. Harding, and all their attorneys, agents, subordinates, servants,
employees, successors in office, and all persons in any way in privity with
them, greeting:
"The plaintiff having presented a complaint before this Court of
First Instance of the city of Manila, in the cause above entitled, against the
defendants W. Cameron Forbes, Charles R. Trowbridge, and J.E. Harding,
above named, and having prayed likewise that a temporary injunction issue
against the said defendants restraining them from doing and continuing to
do certain acts mentioned in the said complaint and which are more
particularly set forth hereinafter in this order; in view of the said complaint
and the verification thereof by this attorney, and it appearing satisfactorily to
me because of the facts alleged in said complaint that the case is one in
which a preliminary injunction ought to issue, and the required bond having
been executed in the sum of P2,000:
"It is hereby ordered by the undersigned, judge of this Court of
First Instance of the city of Manila, that the said defendants, W.
Cameron Forbes, Charles R. Trowbridge, and J.E. Harding, and all of their
attorneys, agents, subordinates, servants, employees, successors in office,
and all persons in any way in privity with them, are, and each of them is,
hereby restrained and enjoined from expelling or deporting or threatening to
expel or deport in any way of the plaintiff herein during the continuance of
this action.
"Manila, P.I., April 9. 1910.
(Signed) "A.S. CROSSFIELD,
"Judge, Court of First Instance, city of Manila, P.I."
"DEMURRER.
"Comes the defendant, W. Cameron Forbes, Governor-General
of the Philippine Islands, and —
"I. Demurs to the first count or cause of action in the complaint
because the same does not state facts sufficient to constitute a cause of
action against the defendant.
"II. He demurs to the second count or cause of action in the
complaint because the same does not state facts sufficient to constitute a
cause of action against the defendant.
"Wherefore he prays the judgment of the court upon the
sufficiency of each of the pretended causes of action set forth in the
complaint.
 (Signed) "W.A. KINCAID and
"THOMAS L. HARTIGAN,
"By W.A. KINCAID,
"Attorneys for defendant W. Cameron Forbes.
"Comes the defendant, W. Cameron Forbes, and moves the
court to dissolve the temporary injunction issued against him in this cause,
without notice to this defendant, for the following reasons:
"I. The complaint is insufficient to justify the issuance of the
injunction.
"II. The court is without jurisdiction to issue said injunction.
(Signed) "W. A. KINCAID and
"THOMAS L. HARTIGAN,
"By W. A. KINCAID,
"Attorneys for defendant W. Cameron Forbes.
(Signed) "IGNACIO VILLAMOR,
"Attorney-General."
"DEMURRER.
"Come the defendants, C.R. Trownbridge and J.E. Harding, and
— dissolve the injunction is grounded upon an insufficiency of the complaint
"I. Demur to the first count or cause of action in the complaint
because the same does not state facts sufficient to constitute a cause of
action against these defendants.
"II. They demur to the second count or cause of action in the
complaint because the same does not state acts sufficient to constitute a
cause of action against these defendants.
"Wherefore, they pray the judgment of the court upon the
sufficiency of each of the pretended causes of action set forth in the
complaint.
(Signed) "W. A. KINCAID and
"THOMAS L. HARTIGAN,
"By W.A. KINCAID,
"Attorneys for defendants C.R. Trowbridge
and J.E. Harding.
(Signed) "IGNACIO VILLAMOR,
"Attorney-General.
"Come the defendants, C.R. Trowbridge and J.E. Harding, and
move the court to dissolve the temporary injunction issued against them in
this cause, without notice to these defendants, for the following reasons:
"I. The complaint is insufficient to justify the issuance of the
injunction.
"II. The court is without jurisdiction to issue said injunction.
(Signed) "W. A. KINCAID and
"THOMAS L. HATIGAN,
"by W.A KINCAID,
"Attorneys for defendants C.R. Trowbridge
and J.E. Harding.
(Signed) "IGNACIO VILLAMOR,
"Attorney-General."
"ORDER.
"This case is now before the court for hearing the demurrer
presented by the defendants to plaintiff's complaint and defendants' motion
to dissolve the injunction issued against the defendants upon plaintiff's
complaint.
"Messrs. O'Brien and DeWitt appeared for the plaintiff; W.A.
Kincaid, esq., for the defendants.
"The demurrer is based upon the ground that the complaint does
not state facts sufficient to constitute a cause of action. The motion to
and lack of jurisdiction in the court.
"Counsel for both parties made exhaustive arguments, both
apparently considering the primal issue to be whether the defendant, W.
Cameron Forbes, had authority at law, as Governor-General of the
Philippine Islands, to deport plaintiff, as alleged in the complaint, and
whether the court had jurisdiction to restrain him from making such
deportation.
"No question was raised as to the sufficiency of the complaint if
all question as to the Governor-General's authority was eliminated.
"A reading of the complaint discloses that the Governor-General
of the Philippine Islands, as such, is not a party to the action.
"The allegations of the second paragraph of the complaint, to the
effect that W. Cameron Forbes is the Governor-General of the Philippine
Islands, that Charles R. Trowbridge is chief of the secret service of Manila,
and J.E. Harding is chief of police of Manila, are descriptive only, and there
is no allegation in the complaint that any of the defendants performed the
acts complained of in his official capacity.
"The court can not determine the authority or liability of an
executive officer of the Government until the pleadings disclose that his
actions as such officer are brought in issue.
 "The complaint upon its face states a cause of action.
"The complaint, stating a cause of action and alleging that the
plaintiff is threatened with, and injury by the defendants, they may be
properly restrained from committing the alleged injury until issues raised
have been tried and determined and the court has jurisdiction to issue an
injunction,
"The demurrer is, therefore, overruled. The motion to dissolve the
preliminary injunction is denied,
"Manila, P.I., this 17th day of May, 1910.
(Signed) "A.S. CROSSFIELD, Judge."
Upon the filing of the original complaint and after a due consideration of the facts
stated therein, the Hon. Grant Trent, acting as vacation justice, on the 24th day of May, 1910,
issued the following order or injunction:
"PRELIMINARY INJUNCTION.
"Whereas, from the facts alleged in the complaints filed in the
above-entitled case, it is found that the plaintiffs are entitled to the
preliminary injunction prayed for by them;
"Therefore, the bond of P500 mentioned in the order of the 24th
of May, 1910, having been filed, the Hon. A.S. Crossfield, judge of the
Court of first Instance of the city of Manila, is hereby notified that, until he
shall have received further orders from this court, he is prohibited from
proceeding with the trial of the case filed by the
defendant Chuoco Tiaco, alias Choa Tea, in the Court of First Instance of
this city, against the within plaintiffs for indemnity as damages for the
alleged deportation of the said Shuoco Tiaco, alia Choa Tea.
"Given in Manila this 24th day of Amy, 1910.
(Signed) "GRANT TRENT,
"Associate Justice, Supreme Court, acting in vacation."
On the 2d day of June, 1910, the defendants presented the following demurrer to the
original complaint:
"And now come the defendants in the above-entitled cause, by
their undersigned attorneys, and hereby file their demurrer to the complaint
upon the grounds that the facts alleged in the complaint do not constitute a
right of action.
"Therefore the court is petitioned to dismiss the complaint, with
the costs against the plaintiff.
"Manila, June 2, 1910.
(Signed) "O'BRIEN & DEWITT, and
"HARTFORD BEAUMONT,
"Attorneys for defendants.
"To the plaintiff or their attorneys:
"You are hereby notified that on Monday, the 15th inst., at nine
o'clock in the morning, we shall ask the court to hear and decide the
preceding demurrer.
"Manila, June 2, 1910.
(Signed) "O'BRIEN & DEWITT, and
"HARTFORD BEAUMONT,
"Attorneys for defendants.
"We have this day, June 2, 1910, received a copy of the above.
(Stamp) "W.A KINCAID and
"THOMAS L. HARTIGAN,
"By J. BORJA,
"Attorneys for plaintiffs."
On the 2d day of June, 1910, the defendants made a motion to dissolve the said
injunction, which motion was in the following language:
"And now come the defendants in the above-entitled case and
pray the court to dissolve the preliminary injunction issued in the above-
entitled case, on the 24th day of May, 1910, on the grounds:
"(1) That the facts alleged in the complaint are not sufficient to
justify the issuance of the said preliminary injunction;
"(2) That the facts alleged in the complaint do not constitute a
right of action.
"Manila, P.I., June 2, 1910.
(Signed) "O'BRIEN & DEWITT, and
"HARTFORD BEAUMONT,
"Attorneys for defendants.
"To the plaintiff and to their attorneys:
"You are hereby notified that on Monday, the 13th inst., at nine
o' clock a.m., we shall ask for hearing on the preceding motion.
"Manila, June 2, 1910.
(Signed) "O'BRIEN & DEWITT, and
"HARTFORD BEAUMONT,
"Attorneys for defendants.
"We have this day received a copy of the foregoing.
(Stamp) "W.A. KINCAID and
"THOMAS L. HARTIGAN,
"By J. BORJA,
"Attorneys for plaintiffs."
Later the plaintiffs obtained permission to file the second amended complaint
above quoted. By a stipulation between the parties "the demurrer" and "motion to dissolve"
were to be considered as relating to the said second amended complaint.
By said "demurrer" and "motion to dissolve" the question is presented whether or
not the facts stated in "the second amended complaint" are sufficient upon which to issue the
writ of prohibition prayed for. If it should be determined that they are not, then, of course, the
writ should be denied and the injunction should be dissolved. If, on the other hand, it should
be determined that the facts stated are sufficient to justify the issuance of said writ, then it
should be granted and the injunction should be dissolved, but should be made perpetual.
From the allegations of the complaint (second amended complaint), including
Exhibit A (which constituted the pleadings in the court below), we find the following facts are
admitted to be true:
 First. That the plaintiff W. Cameron Forbes is the Governor-General of the
Philippine Islands;
Second. That the plaintiff J.E. Harding is the chief of police of the city of Manila;
Third. That the plaintiff C.R. Trowbridge is the chief of the secret service of the city
of Manila;
Fourth. That the defendant, A.S. Crossfield, is one of the judges of the Court of
First Instance of the City of Manila;
Fifth. That the defendant Chuoco Tiaco (alias Choa Tea) is a foreigner of Chinese
nationality and a subject of the Chinese Empire;
Sixth. That the plaintiff W. Cameron Forbes, acting in his official capacity as
Governor-General of the Philippine Islands, in the public interest of the Philippines
Government and at the request of the proper representative of the Imperial Government of
China, to wit: the consul-general of the said Imperial Government, did, on or about the 19th
day of August, 1909, order to said defendant, together with eleven others of Chinese
nationality, to be deported from the Philippines Islands;
Seventh. That whatever the said plaintiff J.E. Harding and C.R. Trowbridge did in
connection with said deportation was done by each of them, acting under the orders of the
said Governor-General, as the Chief of police of the city of Manila and as the chief of the
secret service of the city of Manila;
Eighth. That later, and on the 29th day of March, 1910, the said
defendant Chuoco Tiaco returned to the Philippine Islands;
Ninth. That the plaintiff W. Cameron Forbes, acting through the said chief of police
and the said chief of the secret service, was threatening to again deport the
said Chuoco Tiaco from the Philippine Islands;
Tenth. That upon the 1st day of April, the said Chuoco Tianco commenced an
action against the plaintiff herein (the said W. Cameron Forbes, Governor-General) in the
Court of First Instance of the city of Manila and in that branch of said court over which the said
A.S. Crossfield was presiding as one of the judges of said court, for the purpose of —
(a) Recovering a judgment against said defendants (plaintiffs herein) for P20,000
damages for said alleged wrongful deportation; and
(b) to procure an injunction against said defendants (plaintiff herein) to prevent
them from again deporting said plaintiff (defendant herein) from the Philippine Islands;
Eleventh. That upon the presentation or filing of the petition in the said action in the
Court of First Instances and on the 9th day of April, 1910, the said Crossfield issued a
preliminary injunction against the defendants, W. Camperon Forbes, J.E. Harding, and C.R.
Trowbridge, and all their attorneys, agents, subordinates, servants employees, successors in
office, and all person in any way in privity with them, forbidding them from expelling or
deporting or threatening to expel or deport or producing in any way the explusion or
deportation of the plaintiff (Chuoco Tiaco) during the continuance of the action;
Twelfth. Later, and on the _____ day of _____, 1910, the plaintiffs herein
(defendants below) each presented —
(1) A demurrer to the causes of action described in the petition filed; and
(2) A motion to dissolve the said preliminary injunction upon the general grounds —
(a) That the facts alleged were not sufficient to constitute a cause of action or for
the issuance of the injunction; and
(b) Because the court was without jurisdiction.
Thirteenth. On the 17th day of May, 1910, A. S. Crossfield, after hearing the
arguments of the respective parties, found —
(1) That the facts alleged in the petition did constitute a cause of action; and
(2) That the Court of First Instance did have jurisdiction to try the questions
presented.
Fourteenth. On the 24th day of May, 1910, the plaintiffs herein, through their
attorney, W. A. Kincaid, presented a petition in the Supreme Court asking that —
(a) An injunction be issued against the said A. S. Crossfield, restraining him from
proceeding in said action until further orders from this court; and
(b) That the writ or prohibition be granted against the said judge, forbidding him
from taking jurisdiction of said action and to dismiss the same.
Fifteenth. On the 24th day of May, 1910, the Hon. Grant Trent, Associate Justice,
acting in vacation, issued the preliminary injunction prayed for.
On the 2d day of June, 1910, the attorneys for the defendants (herein), Messrs.
O'Brien & DeWitt, and Hartford Beaumont, filed:
(1) A demurrer to the petition; and
(2) A motion to dissolve said injunction, each based upon the general ground that
the facts alleged in the petition were insufficient to constitute a cause of action.
The said "demurrer" and "motion to dissolve" were brought on for hearing before
the Supreme Court on the 11th day of July, 1910, and the questions presented were argued at
length by the attorneys for the respective parties.
One of the questions which is presented by the pleadings and by the arguments
presented in the cause is whether or not the action pending in the lower court is an action
against the Governor-General, as such, as well as against the other defendants in their official
capacity. If it should be decided that the action is one against the defendants in their official
capacity, then the question will be presented for decision whether or not the courts have
jurisdiction over the Governor-General, for the purpose of reviewing his action in any case and
with especial reference of the facts presented.
The pleadings presented in this court affirmatively allege that the action in the lower
court was against the defendants (plaintiffs herein) in their official capacity. The pleadings
here also allege positively that the acts complained of in the lower court were done by the
defendants in their official capacity; that the expulsion of the defendant (plaintiff below) was in
the public interest of the Government, at the request of the consul-general of the Imperial
Government, at the request of the consul-general of the Imperial Government of China; that
the said plaintiffs J. E. Harding and C. R. Trowbridge acted under the orders of the plaintiff W.
Cameron Forbes; that W. Cameron Forbes acted in his official capacity as Governor-General,
the act being an act of the Government itself, which action was immediately reported to the
Secretary of War.
The pleadings in the lower court simply described the defendants (plaintiffs herein)
as W. Cameron Forbes, Governor-General; J. E. Harding, chief of police of the city of Manila,
and C. R. Trowbridge, chief of the secret service of the city of Manila. The lower court held
that:
"The allegations of the second paragraph of the complaint to the
effect that W. Cameron Forbes is the Governor-General of the Philippine
Islands, that Charles R. Trowbridge is the chief of the secret service of
Manila, and that J. E. Harding is the chief of police of Manila, are
descriptive only, and there is no allegation in the complaint that any of the
defendants (plaintiffs herein) performed the acts complained of in his
official capacity."
The theory of the lower court evidently was that the defendants should have been
described, for example, "W. Cameron Forbes, as Governor-General," etc. In this theory the
lower court has much authority in its support. However, this failure of correct and technical
description of the parties is an objection which the parties themselves should present, but
when all the parties treat the action as one based upon a particular theory, that theory should
be accepted. Upon this question the lower court, in his order said:
"Counsel for both parties made exhaustive arguments both
apparently considering the primal issue to be whether the defendant, W.
Cameron Forbes, had authority at law, as Governor-General of the
Philippine Islands, to deport plaintiff, as alleged in the complaint and
whether the court had jurisdiction to restrain him from making such
deportation."
It will be noted also that the prayer of the complaint in the lower court asked for
relief against "his successors in office." The injunction also ran against "his successors in
office." Thus clearly it appears that the action against the defendants in their official capacity.
In this court there was no pretension by the attorney for the defendant (plaintiff
below) that the action was not against the Governor-General as Governor-General, and the
others as well, in their official capacity. In fact, when an inquiry was made of the attorney for
the defense concerning his theory, his reply was simply that the acts of the Governor-General,
being illegal, were not performed in his official capacity.
The argument of the attorney for the defendant was directed to the proposition that
the Governor-General, in deporting or expelling the said Chinamen, did not act in accordance
with that provision of the Philippine Bill (sec. 5, Act of Congress, July 1, 1902), which provides
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 equal protection of the laws."
The attorney for the plaintiffs, in answering this argument, maintained:
First. That the act of the Governor-General was the act of the Philippine
Government and that he had a right, inherent in him as the representative of the Government
and acting for the Government, to deport or expel the defendant; and
Second. In the absence of express rules and regulations for carrying such power
into operation, he (the Governor-General) had a right to use his own official judgment and
discretion in the exercise of such power.
In order to arrive at a correct solution of the questions presented by the foregoing
facts, we shall discuss the following propositions:
I.
WHAT ARE THE POWERS OF THE PHILIPPINE GOVERNMENT TO DEPORT
OR EXPEL OBJECTIONABLE ALIENS?
The Government of the United States in the Philippine Islands, is a government
with such delegated, implied, inherent, and necessary military, civil, political, and police
powers as are necessary to maintain itself, subject to such restrictions and limitations as the
people of the United States, acting through Congress and the President, may deem advisable,
from time to time, to interpose. (Instructions of President McKinley to the Taft Commission;
executive order of President McKinley dated June 2, 1901, appointing Mr. Taft Civil Governor
of the Philippine Islands; that part of the Act of Congress of March 2, 1901, known as the
Spooner Amendment; Barcelon vs. Baker, 5 Phil. Rep., 87; U. S. vs. Bull, 15 Phil. Rep., 7, 8,
Off. Gaz., 271.)
The Spooner Amendment provided that —
"All military, civil, and judicial powers necessary to govern the
Philippine Islands . . . shall, until otherwise provided by Congress, be
vested in such person and persons, and shall be exercised in such
manner, as the President of the United States shall direct, for the
establishment of civil government and for maintaining and protecting the
inhabitants of said Islands in the free enjoyment of their liberty, property,
and religion."
By this Act of Congress a system of government was established in the Philippine
Islands which carried with it the right and duty on the part of such government to perform all
acts that might be necessary or expedient for the security, safety, and welfare of the people of
the Islands.
In the case of United States vs. Bull, this court, speaking through Mr. Justice Elliott,
said:
"Within the limits of its authority the Government of the
Philippine Islands is a complete governmental organism, with executive,
legislative, and judicial departments exercising the functions commonly
assigned to such departments. The separation of powers is as complete as
in most governments."
Having reached the conclusion that the Government of the United States in the
Philippine Islands is a government with all the necessary powers of a government, subject to
certain control in the exercise thereof, we are of the opinion, and so hold, that it has impliedly
or inherently all such powers as are necessary to preserve itself in conformity with the will of
Congress of the United States and the President thereof, and to this end it may prevent the
entrance into or eliminate from its borders all such aliens whose presence is found to be
detrimental or injurious to its public interest, peace, and domestic tranquility. Every government
having the dignity of a government possesses this power. Every author who has written upon
the subject of international law and who has discussed this question has reached the same
conclusion. Among these authors, may be mentioned such noted men and statesmen as Vattel,
Ortolan, Balckstone, Chitty, Phillimore, Puffendorf, Fiore, Martens, Lorimer, Torres, Castro,
Bello, Heffter, Marshall, Cooley, Wharton, Story, Moore, Taylor, Oppenheim, Westlake, Holland,
Scott, Haycroft, Craies, Pollock, Campbell, and others.
Not only have all noted authors upon this question of international law reached this
conclusion, by all the courts before which this particular question has been involved have also
held that every government has the inherent power to expel from its borders aliens whose
presence has been found detrimental to the public interest.
This court, speaking through its Chief Justice, in the case of In re Patterson (1 Phil.
Rep., 93), said:
"Unquestionably every State has a fundamental right to its
existence and development, and also to the integrity of its territory and the
exclusive and peaceable possession of its dominions, which it may guard
and defend by all possible means against any attack. . . . We believe it is a
doctrine generally professed by virtue of that fundamental right to which we
have referred that under no aspect of the case does this right of intercourse
give rise to any obligation on the part of the State to admit foreigners under
all circumstances into its territory. The international community, as Martens
says, leaves States at liberty to fix the conditions under which foreigners
should be allowed to enter their territory. These conditions may be more or
less convenient to foreigners, but they are a legitimate manifestation of
territorial power and not contrary to law. In the same way a State may
possess the right to expel from its territory any foreigner who does not
conform to the provisions of the local law. (Martens's Treatise on
International Law, vol. 1, p. 381.) Superior to the law which protects personal
liberty, and the agreements which exist for their own interests and for the
benefit of their respective subjects, is the supreme and fundamental right of
each State to self-preservation and the integrity of its dominion and its
sovereignty. Therefore it is not strange that this right should be exercised in
a sovereign manner by the executive power, to which is especially entrusted,
in the very nature of things, the preservation of so essential a right, without
interference on the part of the judicial power. If it can not be denied that under
normal circumstances when foreigners are present in the country the
sovereign power has the right to take all necessary precautions to prevent
such foreigners from imperiling the public safety and to apply repressive
measures in case they should abuse the hospitality extended to them,
neither can we shut our eyes to the fact that there may be danger to personal
liberty and international liberty if to the executive branch of the government
there should be conceded absolutely the power to order the expulsion of
foreigners by means of summary and discretional proceedings;
nevertheless, the greater part of modern laws, notwithstanding these
objections, have sanctioned the maxim that the expulsion of foreigners is a
political measure and that the executive power may expel, without appeal,
any person whose presence tends to disturb the public peace."
The Supreme Court of the United States, speaking through Mr. Justice Field, in the
case of Chao Chan Ping vs. United States (130 U. S., 581) (A. D. 1888), said:
"These laborers are not citizens of the United States; they are
aliens. That the Government of the United States, through the action of the
legislative department which we do not think open to controversy.
Jurisdiction over its own territory to that extent is an incident of every
independent nation. It is a part of its independence. If it could not exclude
aliens it would be, to that extent, subject to the control of another power. The
United States in their relation to foreign countries and their subjects or
citizens are one nation invested with powers which belong to independent
nations, the exercise of which can be invoked for the maintenance of its
absolute independence and security throughout its entire territory. . .
". . . The power of exclusion of foreigners being an incident of
sovereignty, belonging to the Government of the United States as a part of
those sovereign powers delegated by the Constitution, the right to its
exercise at any time when, in the judgment of the Government, the interests
of the country require it, can not be granted away or restrained on behalf of
anyone. The powers of the Government are delegated in trust to the United
States and are incapable of transfer to any other parties. They (the incidents
of sovereignty) can not be abandoned or surrendered nor can their exercise
be hampered when needed for the public, by any consideration of private
interests."
In the case of Ekiu vs. United States (142 U. S. 651, 659) (A. D. 1891) the Supreme
Court of the United States, speaking through Mr. Justice Gray, said:
"It is an accepted maxim of international law that every sovereign
nation has the power, as inherent in sovereignty, and essential to self-
preservation, to forbid the entrance of foreigners within its dominions or to
admit them only in such cases and upon such conditions as it may see fit to
prescribe. In the United States this power is vested in the National
Government, to which the Constitution has committed the entire control of
international relations, in peace as well as in war. It belongs to the political
department of the Government and may be exercised either through treaties
made by the President and Senate or through statutes enacted by
Congress."
Later, the Supreme Court of the United States, in the case of Fong Yue Ting vs.
United States (149 U. S., 698) (A. D. 1892), speaking through Mr. Justice Gray, again said:
"The right of a nation to expel or deport foreigners who have not
been naturalized or taken any steps toward becoming citizens of the country,
rests upon the same grounds and is as absolute and unqualified as the right
to prohibit and prevent their entrance into the country."
The power to exclude or expel aliens being a power affecting international relations
is vested in the political department of the Government. The power to exclude aliens and the
power to expel them rest upon one foundation are derived from one source, are supported by
the same reasons and are, in truth, but the exercise of one and the same power.
In a very recent case — The Attorney-General of Canada vs. Cain (House of Lords
Reports, Appeal Cases, 1906 Lord Atkinson, speaking for the court, said (p. 545):
"In 1763 Canada and all its dependencies, with the sovereignty,
property, and possession, and all other rights which had at any time been
held or acquired by the Crown of France, were ceded to Great Britain (St.
Catherine's Milling and Lumber Company vs. Reg., 14 Appeal Cases, 46,
53). Upon that event the Crown of England became possessed of all
legislative and executive powers within the country to ceded to it and, save
far as it has since parted with these powers by legislation, royal
proclamation, or voluntary grant, it is still possessed of them.
"One of the rights possessed by the supreme power in every
State is the right to refuse to permit alien to enter that State, to annex what
conditions it pleases to the permission to enter it, and to expel or deport from
 the State at pleasure, even a friendly alien, especially if it considers his
presence in the State opposed to its peace, order, and good government, or
to its social or material interests." (Citing Vattel's Law of Nations in support
ofhis proposition.)
In the case of Hodge vs. Reg. (9 Appeal Case, 117) it was decided that a colonial
legislature, under the British Government, has, within the limits prescribed by the statute which
created it, an authority as plenary and as ample as the imperial parliament in the plenitude of
its power possessed and could bestow.
See also In re Adams, 1 Moore's Privy Council, 460, 472-476 (A. D. 1837);
Donegani vs. Donegani, 3 Knapp, 63, 68 (A. D. 1835); Cameron vs. Kyte, 3 Knapp, 332, 343
(A. D. 1835); Musgrave vs. Pulido, Law Reports, 5 Appeal Cases, 102 (A. D. 1879);
Musgrave vs. Chun Teeong Toy, Law Reports, Appeal Cases, 272 (A. D. 1891); Hillvs. Bigge,
3 Moore's Privy Council 465; The Nabob of Carnatic vs. The East Indian Company, 1 Vese, Jr.,
388; Fabrigas vs. Mostyn, 1 Cowper, 161.
Mr. Vattel, writing as early as 1797, in discussing the question of the right of a nation
or government to prevent foreigners from entering its territory or to expel them, said:
"Every nation has the right to refuse to admit a foreigner into the
country when he can not enter without putting the nation in evident danger
or doing it manifest injury. What it (the nation) owes to itself, the care of its
own safety, gives to it this right; and in virtue of its national liberty, it belongs
to the nation to judge whether its circumstances will or will not justify the
admission of the foreigner. Thus, also, it has a right to send them elsewhere
if it has just cause to fear that they will corrupt the manners of the citizens;
that they will create religious disturbances or occasion any other disorder
contrary to the public safety. In a word, it has a right, and is even obliged in
this respect, to follow the rules which prudence dictates." (Vattel's Law of
Nations, book 1, chapter 19, secs. 230, 231.)
Mr. Ortolan said:
"The government of each State has always the right to compel
foreigners who are found within its territory to go away, by having them taken
to the frontier; this right is based upon the fact that the foreigner, not making
a part of the nation, his individual reception into the territory is a matter of
pure permission and simple tolerance and creates no obligation. The
exercise of this right may be subject, doubtless, to certain forms prescribed
by the domestic laws of each country; but the right exists, none the less,
universally recognized and put in force. In France, no special form is now
prescribed in this matter; the exercise of this right of expulsion is wholly left
to the executive power." (Ortolan, Diplomatic de la Mer, book 2, chapter 14,
4th edition, p. 297.)
Mr. Phillimore said:
"It is a received maxim of international law that the government of
the State may prohibit the entrance of strangers into the country and may,
therefore, regulate the conditions under which they shall be allowed to
remain in it or may require or compel their deportation from it." (1 Phillimore's
International Law, 3d edition, chapter 10, sec. 220.)
Mr. Taylor said:
"Every independent State possesses the right to grant or refuse
hospitality. Undoubtedly such a State possesses the power to close the door
to all foreigners who, for social, political or economical reasons, it deems
expedient to exclude; and for like reasons it may subject a resident foreigner
or a group of them to expulsion, subject, of course, to such retaliatory
measures as an abuse of the excluding or expelling power may provoke."
(Taylor, International Public Law, p. 231.)
Mr. Oppenheim said:
"Just as a State is competent to refuse admission to foreigners,
so it is in conformity with its territorial supremacy competent to expel at any
moment a foreigner who has been admitted into its territory. And it matters
not whether the respective individual is only on a temporary visit or has
settled down for professional or business purposes on that territory, having
taken his domicile thereon.
"It has also been held that a State may expel a foreigner who has
been residing within its territory for some length of time and has established
a business there, and that his only remedy is to have his home State, by
virtue of the right of protection of a State over its citizens abroad, to make
diplomatic representations to the expelling State and ask for the reasons for
such expulsion; but the right being inherent in the sovereignty or State, it can
expel or deport even domiciled foreigners without so much as giving the
reasons therefor. The expulsions of aliens from a State may be an unfriendly
act to the State of the individual expelled, but that fact does not constitute
the expulsion an illegal act, the law of nations permitting such expulsions."
(Oppenheim, International Law, sec. 323.)
Mr. Martens said:
"The government of each State has always a right to compel
foreigners who live with its territory to go away, having them conveyed to the
frontier. This right has its cause in the fact that as a stranger does not form
a part of a nation, his individual admission into the country is merely
discretional, a mere act of tolerance, in no way obligatory. The practice of
this right might be subject to certain forms prescribed by the international
laws of each country , but the right is always universally acknowledged and
put into practice." (Martens's Droit des Gens, book 3, p. 91.)
This implied or inherent right in the Government to prevent aliens from entering its
territory or to deport or expel them after entrance, has not only been recognized by the courts
and eminent writers of international law, but has also been recognized many times by the
executive and legislative branches of the Government. Acts of the Congress of the United
States, of the Parliament of Great Britain, as well as the British colonial parliaments, and royal
decrees might be cited in support of this doctrine.
One of the very early Acts of the Congress of the United of the United States (A. D.
1798) authorized the President of the United States to order all such aliens as he should judge
to be dangerous to the peace and safety of the country, or that he should have reasonable
grounds to suspect of being concerned in any treasonable machinations against the
Government, to deport out of the territory of the United States within such time as he should
express in his order. And it was further provided that if any such aliens, so sent out, should
return without the permission of the President, they should be imprisoned so long as, in the
opinion of the President, the public safety might require.
Mr. Frelinghuysen, as Secretary of State of the United States (1882), said:
"This Government (United States) can not contest the right of
foreign governments to exclude, on policy or other grounds, American
citizens from their shores."
Mr. Gresham, Secretary of State of the United States, in speaking of the right of Hayti
to expel from its borders American citizens, said:
"This government does not propose to controvert the principle of
international law which authorizes every independent State to expel
objectionable foreigners or class of foreigner from its territory. The right of
expulsion or exclusion of foreigners is one which the United States, as well
as many other countries, has, upon occasions, exercised when deemed
necessary in the interest of the Government or its citizens. . .
"Every State is authorized, for reasons of public order, to expel
foreigners who are temporarily residing in its territory, but when a
Government expels foreigners without cause and in an injurious manner, the
State of which the foreigners is a citizen has a right to prefer a claim for this
violation of international law and to demand satisfaction, if there is occasion
for it."
Many other cases might be cited showing the arbitrary manner in which aliens have,
from time to time, been deported.
Expulsion is a police measure, having for its object the purging of the State of
obnoxious foreigners. It is a preventive, not a penal process, and it can not be substituted for
criminal prosecution and punishment by judicial procedure.
The right of deportation or expulsion is generally exercised by the executive head of
the Government, sometimes with a sometimes without express legislation. Sometimes it is
delegated in particular instances to the heads of some departments of the Government. (Act
No. 265, U.S. Philippine Commission.)
In Canada the right was given by statute to the attorney-general of Canada.
(Dominion Act, 60th and 61st Victoria, chap. 11, sec. 6, as amended by 1st Edward 7th, chap.
13.)
It having been established that every government has the implied or inherent right
to deport or expel from its territory objectionable aliens, whenever it is deemed necessary for
the public good, we deem it pertinent to inquire:
II.
IN WHAT DEPARTMENT OR DEPARTMENTS OF THE INDEPENDENT
DEPARTMENT OF A GOVERNMENT DOES THIS INHERENT POWER EXIST?
The rule of law permitting nations to deport or expel objectionable aliens, while
international in its character, is yet, nevertheless, in its application, executed by the particular
nation desiring to rid itself of such aliens and must, therefore, be carried into operation by that
department of the government charged with the execution of the nation's law. Its enforcement
belongs peculiarly to the political department of the government. The right is inherent in the
government and, as Mr. Justice Field said, "can not be granted away or restrained on behalf
of anyone." It being inherent in the political department of the government, it need not be
defined by express legislation, although in some States the legislative department of the
government has prescribed the condition and the method under which and by which it shall be
carried into operation. The mere absence of legislation regulating this inherent right to deport
or expel aliens is not sufficient to prevent the chief executive head of the government, acting in
his own sphere and in accordance with his official duty, to deport or expel objectionable aliens,
when he deems such action necessary for the peace and domestic tranquillity of the nation.
One of the principal duties of the chief executive of a nation is to preserve peace and order
within the territory. To do this he is possessed of certain powers. It is believed and asserted to
be sound doctrine of political law that if in a particular case he finds that there are aliens within
his territory whose continued presence is injurious to the public interest, he may, even in the
absence of express law, deport them. The legislative department of the government is not
always in session. It may require days and even months for that department to assemble.
Sudden and unexpected conditions may arise, growing out of the presence of obnoxious and
untrustworthy foreigners, which demand immediate action. Their continued presence in the
country may jeopardize even the very life of the government. To hold that, in view of the
inherent power of the government, the chief executive authority was without power to expel
such foreigners, would be to hold that at times, at least, the very existence and life of the
government might be subjected to the will of designing and obnoxious foreigners, who were
entirely out of sympathy with the existing government, and whose continued presence in the
territory might be for the purpose of destroying such government.
Suppose, for example, that some of the inhabitants of the thickly populated
countries situated near the Philippine Archipelago, should suddenly decide to enter the
Philippine Islands and should without warning appear in one of the remote harbors and at
once land, for the purpose of stirring up the inhabitants and inciting dissensions against the
present Government. And suppose, for example, that the Legislature was not in session; could
it be denied that the Governor-General, under his general political powers to protect the very
existence of the Government, has the power to take such steps as he may deem wise and
necessary for the purpose of ridding the country of such obnoxious and dangerous foreigners?
To admit such a doctrine would be to admit that every government was without the power to
protects its own life, and at times might be subjected to the control of people who were out of
sympathy with the spirit of the Government and who owe no allegiance whatever to it, and are
under no obligations to assist in this perpetuity.
It has never been denied, in a government of separate and independent
departments, executive, legislative, and judicial, that the legislature may prescribe the
methods or conditions for the exercise of this power, but the mere absence of such rules
neither proves that the power does not exist nor that the executive head of the government
may not adopt for himself such methods as he may deem advisable of the public good and the
public safety. He can only be controlled in the conditions and methods as to when and how
the powers shall be exercised. The rights itself can not be destroyed or bartered away. When
the power is once created and no rules are adopted for its enforcement, the person or
authority who has to exercise such power has the right to adopt such sane methods for
carrying the power into operation as prudence, good judgment and the exigencies of the case
may demand; and whatever rules and regulations may be adopted by the person or
department possessing this power for carrying into operation this inherent power of the
government, whether they are prescribed or not, will constitute due process of law. (See
speech delivered by John Marshall in the House of Representatives of the United States
Annals of the Sixth Congress, 595; United States vs. vs. Robins, Fed. Case. No. 16,175, 27
Fed. Case., 825; Moyer vs. Peabody, 212 U.S., 78; Murray vs. Hoboken Land & Improvement
Co., 18 How., 272; U. S. vs. Ju Toy, 198 U.S. 253, 263.)
 We have said that the power to deport or expel foreigners pertains to the political
department of the government. Even in those jurisdictions where the conditions under which
persons may be deported are left to the courts to decide, even then the actual deportations
must be carried into operation by the executive department of the government. The courts
have no machinery for carrying into operation their orders except through the executive
department.
In the present case the fact is charged and admitted that the defendant was
deported by W. Cameron Forbes as Governor-General of the Philippine Islands, acting for the
Government. Mr. Forbes is "the chief executive authority in all civil affairs of the Government
of the Philippine Islands" and as such it is his duty to enforce the laws. It is our opinion and we
so hold that as such "executive authority" he had full power, being responsible to his superiors
only, to deport the defendant by whatever methods his conscience and good judgment might
dictate. But even though we are wrong in our conclusions that he is the possessor of the
inherent right to deport aliens, and it is true that the power belongs to the legislative
department to prescribe rules and regulations for such deportation, yet, in the present case,
the legislative department expressly recognized his authority and approved his acts by a
resolution adopted by it on the 19th of April, 1910. This power of the legislature to expressly
ratify acts alleged to be illegal by the executive department, has been expressly recognized by
the Supreme Court of the United States in the case of United States vs. Heinszen & Co. (206
U.S., 370); O'Reilly de Camara vs. Brooke, Major-General (142 Fed. Rep., 859). An act done
by an agent of the Government, though in excess of his authority, being ratified and adopted
by the Government, is held to be equivalent to previous authority. (142 Federal
Reporter,supra; Phillips vs. Eyre, Law Reports, 6 Queen's Bench Cases, 1; Secretary of
State vs. Kamachee Baye Sahaba, 13 Moore's Privy Council, 22; O'Reilly de Camara vs.
Brooke, Major-General, 209 U.S., 54.)
It is also admitted that the act of the Governor-General in deporting the defendant
was in compliance with a request made by the official representative of the Imperial
Government of China. It would seem, therefore, that said request, in the absence of any other
power, would be sufficient justification of his act. The mere fact that a citizen or subject is out
of the territory of his country does not relieve him from that allegiance which he owes to his
government, and his government may, under certain conditions, properly and legally request
his return. This power is expressly recognized by the Congress of the United States. (See Act
of Congress of January 30, 1799, 1 Statutes at Large, 613; sec. 5533, Revised Statutes of
United States; sec. 5, United States Penal Code, adopted March 4, 1909.)
It was strenuously argued at the hearings of this cause that the defendant was
deported without due process of law, in fact, that was the burden of the argument of attorney
of the defendant.
"Due process of law, in any particular case, 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 individual
rights as those maxims prescribe for the class of cases to which the one in
question belongs." (U.S. vs. Ling Su Fan, 10 Phil. Rep., 104, 111; Moyer vs.
Peabody, 212 U.S., 78; Murray vs. Hoboken Land & Improvement Co., 18
How., 272; U.S. vs. Ju Toy, 198 U.S., 253, 263.)
An examination of the methods by which the defendant was deported, as stated by
the attorney for the defendant, as compared with the numerous cases of deportation by the
various governments of the world, shows that the method adopted in the present case was in
accordance with the methods adopted by governments generally and the method sanctioned
by international law. (See Moore's International Law Digest, vol. 4.)
It has been repeatedly decided when a government is dealing with the political rights
of aliens that it is not governed by that "due process of law" which governs in dealing with the
civil rights of aliens. For instance, the courts of the United States have decided that in the
deportation of an alien he is not entitled to right of trial by jury, the right of trial by jury being one
of the steps in the "due process of law" in dealing with civil rights. (Fong Yue Ting vs. U.S., 698;
U.S. vs. Wong Dep Ken, 57 Fed. Rep., 206; U.S. vs. Wong Sing, 51 Fed. Rep., 79; In re Ng Loy
Hoe, 53 Fed. Rep., 914.)
In the case of Moyer vs. Peabody, Governor of Colorado (212 U.S., 78), Mr. Justice
Holmes, speaking for the court upon the question of what is "due process of law," said:
"But it is familiar that what is due process of law depends on
circumstances. It varies with the subject-matter and the necessities of the
situation. Thus, summary proceedings suffice for taxes and executive
decisions for exclusion from the country."
Neither will the fact that an alien residing in the territory holds a certificate of
admission justifying his right to remain within such territory as against an act of the executive
department of the Government which attempts to deport him. (Chae Chan Ping vs. U.S., 130
U.S., 581, 36 Fed. Rep., 431.) The certificate is a mere license and may be revoked at any
time. An lien's right to remain in the territory of a foreign government is purely a political one
and may be terminated at the will of such government. No cases have been found, and it is
confidently asserted that there are none, which establish a contrary doctrine.
Having established, as we believe:
(a) That a government has the inherent right to deport aliens whenever the
government believes it necessary for the public good; and
(b) That the power belongs to the political department of the government and in the
Philippine Islands to the Governor-General, who is "the chief executive authority in all civil
affairs" in the Government of the Philippine Islands:
We deem it pertinent to inquire:
III.
WHETHER OR NOT THE COURTS CAN TAKE JURISDICTION IN ANY CASE
RELATING TO THE EXERCISE OF THIS INHERENT POWER IN THE DEPORTATION OF
ALIENS, FOR THE PURPOSE OF CONTROLLING THIS POWER VESTED IN THE
POLITICAL DEPARTMENT OF THE GOVERNMENT.
The question whether or not the courts will ever intervene or take jurisdiction in any
case against the chief executive head of the government is one which has been discussed by
many eminent courts and learned authors. The have been unable to agree. They have not
been able to agree even as to what is the weight of authority, but they all agree, when the
intervention of the courts is prayed for, for the purpose of controlling or attempting to control
the chief executive head of the government in any matter pertaining to either his political or
discretionary duties, that the courts will never take jurisdiction of such case. The jurisdiction is
denied by the courts themselves on the broad ground that the executive department of the
government is a separate and independent department, with its duties and obligations, the
responsibility for the compliance with which is wholly upon that department. In the exercise of
those duties the chief executive is alone accountable to his country in his political character
and to his own conscience. For the judiciary to interfere for the purpose of questioning the
manner of exercising the legal, political, inherent duties of the chief executive head of the
government would, in effect, destroy the independence of the departments of the government
and would make all the departments subject to the judicial. Such a conclusion or condition
was never contemplated by the organizers of the government. Each department should be
sovereign and supreme in the performance of its duties within its own sphere, and should be
left without interference in the full and free exercise of all such powers, rights, and duties
which rightfully, under the genius of the government, belong to it. Each department should be
left to interpret and apply, without interference, the rules and regulations governing it in the
performance of what may be termed its political duties. Then for one department to assume to
interpret or to apply or to attempt to indicate how such political duties shall be performed
would be an unwarranted, gross, and palpable violation of the duties which were intended by
the creation of the separate and distinct departments of the government.
It is no answer to this conclusion to say that the chief executive authority may
violate his duties and the constitutional guaranties of the people, or that injustice may de done,
or that great and irreparable damage may be occasioned without a remedy. The judicial is not
the only department of the government which can do justice or perpetually conserve the rights
of the people. The executive department of the government is daily applying laws and
deciding questions which have to do with the most vital interests of the people. (Marbury vs.
Madison, 1 Cranch, U.S., 152; State of Miss. vs. Johnson, 4 Wall., 475, 497; Hawkins vs. The
Governor, 1 Ark., 570 (33 Am. dec., 346); Sutherland vs. The Governor, 29 Mich., 320;
People vs. Bissell, 19 Ill., 229 (68 Am. dec., 591); State vs. Warmth, 22 La. An., 1.)
In the case of State vs. Warmoth (22 La. An., 1) Mr. Justice Taliaferro said (pp. 3,
4):
"He [the governor] must be presumed to have this discretion, and
the right of deciding what acts his duties require him to perform; otherwise
his functions would be trammeled, and the executive branch of the
government made subservient, in an important feature, to the judiciary.
xxx xxx xxx
"When the official acts to be performed by the executive branch
of the government are divided into ministerial and political, and courts
assume the right to enforce the performance of the former, it opens a wide
margin for the exercise of judicial power. The judge may say what acts are
ministerial and what political. Circumstances may arise and conditions may
exist which would require the Governor of a State, in the proper exercise of
his duty, and with regard to the interests of the State, not to perform a
ministerial act. Is the judge to determine his duty in such case, and compel
him to perform it? The reasons of the executive for the nonperformance of
an act, the judge may never know, or, if brought to his knowledge, he may
review and overrule them, and, in so doing, assume political functions. He
would determine, in such a case, the policy of doing the act. The legislator
himself, who prescribed the act, might hold the executive harmless, while
the judge condemned him."
We believe that there are certain inherent powers vested in the chief executive
authority of the State which are universally denominated political, which are not defined either
by the constitution or by the laws. We believe that those inherent powers would continue to
exist for the preservation of the life and integrity of the State and the peace and quietude of its
people, even though the constitution were destroyed and every letter of the statutes were
repealed. This must necessarily be true, or, otherwise, the hands of the chief executive
authority of the government might, at times, be paralyzed in his efforts to maintain the
existence of the government. The United States Government never intended to create in the
Philippine Islands a government without giving it adequate power to preserve itself and to
protect the highest interests of the people of the Archipelago.
These inherent, inalienable, and uncontrollable powers which must necessarily
exist in the absence of express law in the chief executive authority of a nation have been
clearly demonstrated by the action of the President of the United States, notably in putting
down what is known as the "Whisky Rebellion" in the State of Pennsylvania, in the case of the
protection of a judge of the United States (In re Neagle, 135 U.S., 1, 64), as well as in the
case of the uprising of labor organizations in the city of Chicago under the direction and
control of Mr. Debbs (In re Debbs, 158 U.S., 568).
These powers and the right to exercise them according to his own good judgment
and conscience and his acts in pursuance of them are purely political and are not subject to
control by any other department of the government. It is believed that even the Legislature can
not deprive him of the right to exercise them.
Upon the question of the right of the courts to interfere with the executive, this court
has already pronounced, in the case of In re Patterson (1 Phil. Rep., 93) that:
"Superior to the law which protects personal liberty and the
agreements which exist between nations for their own interests and the
benefit of their respective subjects is the supreme and fundamental right of
each state to self-preservation and the integrity of its dominion and its
sovereignty. Therefore it is not strange that this right should be exercised in
a sovereign manner by the executive power to which is entrusted, in the very
nature of things, the preservation of so essential a right,without interference
on the part of the judicial power."
This court has also announced the doctrine, in the case of Barcelon vs. Baker et al.
(5 Phil. Rep., 87) that:
"Under the form of government established in the Philippine
Islands one department of the Government has no power or authority to
interfere in the acts of another, which acts are performed within the
discretion of the other department."
In the case of Martin vs. Mott it was decided by the Supreme Court of the United
States, whenever the performance of a political duty devolved upon the chief executive
authority of a nation and when he had decided as to the method of performing that duty, that
no court could question his decision. We are of opinion and so hold, whenever the authority to
decide a political question devolves upon any separate and distinct department of the
Government, which authority imposed upon that department the right to decide whether the
exigencies for its exercise have arisen, and when that department had decided, that the
decision is conclusive upon all other persons or departments.
This doctrine has been further recognized by this court in the case of Merchant vs.
Del Rosario (4 Phil. Rep., 316) as well as in the case of Debrunner vs. Jaramillo (12 Phil.
Rep., 316).
Under the system of government established in the Philippine Islands the
Governor-General is "the chief executive authority," one of the coordinate branches of the
Government, each of which, within the sphere of its governmental powers, is independent of
the others. Within these limits the legislative branch can not control the judicial nor the judicial
the legislative branch, nor either the executive department. In the exercise of his political
duties the Government-General is, by the laws in force in the Philippine Islands, invested with
certain important governmental and political powers and duties belonging to the executive
branch of the Government, the due performance of which is entrusted to his official honesty,
judgment, and discretion. So far as these governmental or political or discretionary powers
and duties which adhere and belong to the Chief Executive, as such, are concerned, it is
universally or control him in the manner or mode of their discharge or exercise. (Hawkins vs.
The Governor, supra; People vs. The Governor, supra; Marbury vs. Madison, supra;
Meecham on Public Officers, sec. 954; In re Patterson,supra; Barcelon vs. Baker, supra.)
It may be argued, however, that the present action is one to recover damages
against the Governor and the others mentioned in the cause, for the illegal acts performed by
them, and not an action for the purpose of in any way controlling or restraining or interfering
with their political or discretionary duties. No one can be held legally responsible in damages
or otherwise for doing in a legal manner what he had authority, under the law, to do.
Therefore, if the Governor-General had authority, under the law, to deport or expel the
defendants, and the circumstances justifying the deportation and the method of carrying it out
are left to him, then he can not be held liable in damages for the exercise of this power.
Moreover, if the courts are without authority to interfere in any manner, for the purpose of
controlling or interfering with the exercise of the political powers vested in the chief executive
authority of the Government, then it must follow that the courts can not intervene for the
purpose of declaring that he is liable in damages for the exercise of this authority. Happily we
are not without authority upon this question. This precise question has come before the
English courts on several different occasions.
In the cases of The Lord-Lieutenant of Ireland (Governor of Ireland), Tandy vs. Earl
of Westmoreland (27 State Trials, 1246), and Luby vs. Lord Wodehouse (17 Iredell, Common
Law Reports, 618) the courts held that the acts complained of were political acts done by the
lord-lieutenant in his official capacity and were assumed to be within the limits of the authority
delegated to him by the Crown. The courts England held that, under the circumstances, no
action could lie against the lord-lieutenant, in Ireland or elsewhere.
In the case of Chun Teeong Toy vs. Musgrave (Law Reports, Appeal Cases 1891,
p. 272) the plaintiff, a Chinese subject, brought an action for damages against the defendant
as collector of customs of the State of Victoria in Australia, basing his action upon the refusal
of the Victorian government to permit him to enter that State. Upon a full considerations the
Privy Council said:
"Their Lordships can not assent to the proposition that an alien
refused permission to enter British territory can, in an action against the
British Crown, compel the decision of such matters as these, involving
delicate and difficult constitutional questions affecting the respective rights
of the Crown and Parliament and the relation of this country to her self-
governing colonies. When once it is admitted that there is no absolute and
unqualified right of action on the behalf of an alien refused permission to
enter British territory, their Lordships are of opinion that it would be
impossible, upon the facts which the demurrer admits, for an alien to
maintain an action."
If it be true that the Government of the Philippine Islands is a government invested
with "all the military, civil, and judicial powers necessary to govern the Philippine Islands until
otherwise provided by Congress" and that the Governor-General is invested with certain
important political duties and powers, in the exercise of which he may use his own discretion,
and is accountable only to his superiors in his political character and to his own conscience,
and the judicial department of the Government is without authority to interfere in the control of
such powers, for any purpose, then it must follow that the courts can not take jurisdiction in
any case against him which has for its purpose the declaration that such acts are illegal and
that he is, in consequence, liable for damages. To allow such an action would, in the most
effective way possible, subject the executive and political departments of the Government to
the absolute control of the judiciary. Of course, it will be observed that we are here treating
only with the political and purely executive duties in dealing with the political rights of aliens.
The conclusions herein reached should not be extended to cases where vested rights are
involved. That question must be left for future consideration.
From all the foregoing facts and authorities, we reach the following conclusions:
First. That the Government of the United States in the Philippine Islands is a
government possessed with "all the military, civil, and judicial powers necessary to govern the
Philippine Islands" and as such has the power and duty, through its political department, to
deport aliens whose presence in the territory is found to be injurious to the public good and
domestic tranquility of the people.
Second. That the Governor-General, acting in his political and executive capacity,
is invested with plenary power to deport obnoxious, is invested continued presence in the
territory is found by him to be injurious to the public interest, and in the absence or expelling
them, he may use such methods as his official judgment and good conscience may dictate.
Third. That this power to deport or expel obnoxious aliens being invested in the
political department of the Government, the judicial department will not, in the absence of
express legislative authority, intervene for the purpose of controlling such power, nor for the
purpose of inquiring whether or not he is liable in damages for the exercise thereof.
Therefore the lower court was without jurisdiction to consider the particular
questions presented in the cause, and it is hereby ordered and decreed that the writ of
prohibition shall be issued, directed to the defendant, the Hon. A. S. Crossfield, perpetually
prohibiting him from proceeding in the cause in which ChuocoTiaco (alias Choa Tea) is
plaintiff and W. Cameron Forbes, Charles R. Trowbridge, and J. E. Harding are defendants,
and to dismiss said action, as well as to enter an order dissolving the in which Chuoco Tiaco
(alias Choa Tea) is plaintiff and W. Cameron Forbes, Charles R. Trowbridge, and J. E.
Harding are defendants, and to dismiss said action, as well as to enter an order dissolving the
injunction granted by him in said cause against the said defendants.
It is further ordered that a decree be entered overruling the demurrer presented in
this cause, and ordering that said action be dismissed, as well as well as a decree making
perpetual the injunction heretofore granted by Mr. Justice Trent.
It is ordered, without any finding as to costs.
Arellano, C. J. and Torres, J., concur.
Separate Opinions
MORELAND, J., with whom concurs TRENT, J., concurring:
 The nature of this action has been fully set forth, by way of quoting the entire
proceedings, in the opinion of Mr. Justice Johnson. It is unnecessary again to present the
facts. I differ, however, from that portion of the relation of the facts in that opinion, and the
conclusion drawn therefrom, which touches the form of action commenced by Chuoco Tiaco
against the Governor-General, and in which it is asserted that "thus early it appears that the
action was against the defendantsin their official capacity." In my judgment, the contrary,
namely, that the action was against the Governor-General personally for acts which he sought
to perform in his official capacity, clearly appears. The words "successors in office," as used in
the complaint, refer only to the remedy by injunction and not to the damages prayed for by
reason of the expulsion. The action no less certainly is directed against the other defendants
personally.
When the case was decided in this court upon the merits, Mr. Justice Trent and
myself signed the following opinion:
"I concur in so much of the opinion of Mr. Justice Johnson as
holds that the action in the Court of First Instance from which this controversy
arises can not be maintained against the Governor-General. With the
reasons given and the arguments advanced in that opinion for the support
of that conclusion I disagree. I can not assent to the theory upon which the
opinion is framed nor to the reasons and arguments advanced in support
thereof. I understand that the action in the court below, as appears from the
records of the court and the concession of all parties interested, is one
against the Governor-General personally for acts which he assumed to
perform in his official capacity. That the Governor-General acted in the
honest belief that he had the power to perform the acts complained of is
nowhere questioned. This being so, whether or not he actually had such
powers is, as I view this case, immaterial. I base my concurrence in the result
solely upon the theory that the Governor-General, in his official capacity,
being one of the coordinate branches of the Government (U. S. vs. Bill 8 Off.
Gaz., 271) 1 ,is entitled to the same protection against personal actions for
damages by those who feel themselves aggrieved by acts which he performs
in carrying out what he honestly deems to be the duties of his office as are
the other coordinate branches of the Government. It is undoubted that
neither the Legislature, nor a member thereof is liable in damages for any
act which it performs, believing that it had the power so to act, even though
it ultimately appears that such act is entirely outside of its powers and
jurisdiction and is wholly and utterly void. It is equally undoubted, in my
judgment, that neither the courts, constituting another coordinate branch of
the Government, nor members thereof, are, under similar circumstances,
liable in damages. (Brandley vs. Fisher, 80 U. S., 335, Spalding vs. Vilas,
161 U. S., 481, 493, 494.) If the want of jurisdiction was known to the court
at the time it acted, another question might be presented.
"There comes to my mind no good reason why the same
principles of nonliability should not be applied to the Chief Executive of the
Government. Indeed the reasons and arguments of the courts and text
writers advanced to support the principle of nonliability of legislatures and
courts apply with even greater force to the Executive.
"The Governor-General, in determining whether or not he has the
power or jurisdiction to perform a certain act, should be protected against
personal actions against him for damages as completely and effectively as
he unquestionably is when, jurisdiction being conceded, he honestly acts in
excess thereof. There is no dissimilarity in the quality of the mental process
employed or the judgment brought to bear and exercised in arriving at a
conclusion in the two cases.
"This theory does not in any way weaken the power of this court,
in a proper action, to determine the legality of all official acts once performed
and the legal consequences flowing therefrom. The necessity for such
determination does not, however, arise in this case."
To that opinion we still adhere. A thorough reexamination of the questions involved
and of the principles of law which, we believe, must be applied in their solution adds to our
conviction that the conclusions therein reached are sound and should guide the court in the
disposition of the case before it. The principles enunciated in that opinion were not, however,
presented or discussed by the attorneys, either of them, in the extended and elaborate
arguments which they made, both orally and in writing, to this court. A motion for a rehearing
having been made and the objections and arguments of counsel having been particularly
directed against the conclusions presented in our former opinion, we deem it advisable to
present here, with some elaboration and detail, the reasons which impelled us to the
conclusions reached therein.
In this opinion we discuss the subject, largely speaking, in two aspects.
First, the nature and quality of the functions exercised by the Governor-General in
arriving at the conclusion that he had the right to expel Chuoco Tiaco. Our conclusion upon
this branch of the subject is that the act was in the nature of a judicial act, the functions
exercised were judicial in their quality, and that he should have the same protection against
civil liability in exercising this function that would be accorded to a court under similar
circumstances.
Second, the fundamental nature and attributes of the office of Governor-General,
and whether or not public policy requires that there be applied to him and his acts the same
principles which govern the liability of the members of the Legislature and of the judiciary. Our
conclusion upon this branch of the case is that the Government here is one of three
departments — executive, legislative, and judicial — that the office of Governor-General is
one of the coordinate branches of the Government, and that the same public policy which
relieves a member of the Legislature or a member of the judiciary from personal liability for
their official acts also relieves the Governor-General in like cases.
It has been settled by previous decisions of this court that the Government
established in the Philippine Islands is one of three departments — legislative, executive and
judicial. In the case of the U. S. vs. Bull 1 (8 Off. Gaz., 271, 276), it is said:
"Within the limits of its authority the Government of the Philippines
is a complete governmental organism with executive, legislative, and judicial
departments exercising the functions commonly assigned to such
departments. The separation of powers is as complete as in most
governments. In neither Federal nor State governments is this separation
such as is implied in the abstract statement of the doctrine. For instance, in
the Federal Government the Senate exercises executive powers, and the
President to some extent controls legislation through the veto power. In a
State the governor is not a member of the legislative body, but the veto
power enables him to exercise much control over legislation. The Governor-
General, the head of the executive department in the Philippine Government,
 is a member of the Philippine Commission, but as executive he has no veto
power. The President and Congress framed the Government on the model
with which American are familiar, and which has proved best adapted for the
advancement of the public interests and the protection of individual rights
and privileges." (Lope Severino vs. The Governor-General and Provincial
Board and Occidental Negros, 8 Off. Gaz., 1171.) 1
The instructions of the President of the United States to the Philippine Commission,
dated April 7, 1900, contain this statement:
"Until the complete transfer of control (from the military to the civil
authorities) the Military Governor will remain the chief executive head of the
Government of the Islands, and will exercise the executive authority now
possessed by him and not herein expressly assigned to the Commission,
subject, however, to the rules and orders enacted by the Commission in the
exercise of the legislative powers conferred upon them."
Said instructions also include the following:
"Beginning with the 1st day of September, 1900, the authority to
exercise, subject to my approval, through the Secretary of War, that part of
the power of government in the Philippine Islands which is of a legislative
nature is to be transferred from the Military Governor of the Islands to this
Commission, to be thereafter exercised by them in the place and stead of
the Military Governor, under such rules and regulations as you shall
prescribe, until the establishment of the civil central government for the
Islands contemplated in the last foregoing paragraph, or until Congress shall
otherwise provide. Exercise of this legislative authority will include the
making of rules and orders, having the effect of law, for the raising of revenue
by taxes, customs duties, and imposts; the appropriation and expenditure of
public funds of the Islands; the establishment of an educational system
throughout the Islands the establishment of a system to secure an efficient
civil service; the organization and establishment of municipal and
departmental governments, and all other matters of a civil nature for which
the Military Governor is now competent to provide by rules or orders of a
legislative character."
The powers conferred upon the Military Governor are contained in the following order
of the President to General Merritt, dated May 19, 1898:
"Though the powers of the military occupant are absolute and
supreme, and immediately operate upon the political condition of the
inhabitants, the municipal laws of the conquered territory, such as affect
private rights of person and property, and provide for the punishment of
crime, are considered as continuing in force, so far as they are compatible
with the new order of things, until they are suspended or superseded by the
occupying belligerent; and in practice they are not usually abrogated, but are
allowed to remain in force, and to be administered by the ordinary tribunals,
substantially as they were before the occupation. This enlightened practice
is, so far as possible, to be adhered to on the present occasion."
The Spooner amendment to the Army appropriation bill, passed March 2, 1901,
provided that —
"All military, civil, and judicial provides necessary to govern the
Philippine Islands . . . shall until otherwise provided by Congress be vested
is such person and persons, and shall be exercised in such manner, as the
President of the United States shall direct, for the establishment of civil
government, and for maintaining and protecting the inhabitants of said
Islands in the free enjoyment of their liberty, property, and religion."
On the 21st of June, 1901, the President, in an order appointing a Civil Governor,
said:
"On and after the 4th day of July, 1901, until it shall be otherwise
ordered, the President of the Philippine Commission will exercise the
executive authority in a civil affairs in the government of the Philippine
Islands heretofore exercised in such affairs by the Military Governor of the
Philippines, and to that end the Hon. William H. Taft, President of the said
Commission, is hereby appointed Civil Governor of the Philippine Islands.
Such executive authority will be exercised under, and in conformity to, the
instruction to the Philippine Commissioners, dated April 7, 1900, and subject
to the approval and control of the Secretary of War of the United States. The
municipal and provincial civil governments, which have been, or shall
hereafter be, established in said Islands, and all persons performing duties
appertaining to the offices of civil government in said Islands, will, in respect
of such duties, report to the said Civil Governor.
"The power to appoint civil officers, heretofore vested in the
Philippine Commission, or in the Military Governor, will be exercised by the
Civil Governor with the advice and consent of the Commission.
"The Military Governor of the Philippines is hereby relieved from
the performance, on and after the said 4th day of July, of the civil duties
hereinbefore described, by this authority will continue to be exercised as
heretofore in those districts in which insurrection against the authority of the
United States continues to exist, or in which public order is not sufficiently
restored to enable provincial civil governments to be established under the
instructions to the Commission dated April 7, 1900."
On the 1st day of July, 1902, Congress passed an Act containing the following:
"That the action of the President of the United States in creating
the Philippine Commission and authorizing said Commission to exercise the
powers of government to the extent and in the manner and form and subject
to the regulations and control set forth in the instructions of the President to
the Philippine Commission, dated April seventh, nineteen hundred, and in
creating the offices of Governor-General and Vice-Governor-General of the
Philippine Islands, and authorizing said Governor-General and Vice-
Governor-General to exercise the powers of government to the extent and
in the manner and form set forth in the Executive Order dated June twenty-
first, nineteen hundred and one, . . . is hereby approved, ratified, and
confirmed, and until otherwise provided by law the said Islands shall continue
to be governed as thereby and herein provided."
From these citations it will be seen that the Governor-General is the executive head
of the Government; that he has full, plenary, and perfect powers to executive the laws.
Obviously, therefore, the primal necessity laid upon him, when, in a given case, he believes
himself called upon to act, is to determine whether there is a law under which he may act —
whether, in other words, he is authorized to act in that particular case. One occupying that
high position owes a heavy obligation to the State. A careful and conscientious man, intensely
anxious to meet the full requirements of this obligation, will inevitably dedicate his first
consideration to the determination of what that obligation is. From the viewpoint of the
governors of the American States, this is not, generally speaking, a difficult question. There
conditions are settled. Society is old. Questions wholly new rarely arise. The constitutions
confer the powers generally. The statutes specify them. The source of power is the
constitution. The guide is the statutes. Both are written. They constitute the governor's text-
book of power and procedure — specific, definite, certain. In the Philippine Islands the
situation is different. Here, while the sources of the Governor-General's power are known, the
extent and character of the power drawn from those sources are not so clear. Many times they
are extremely difficult of ascertainment. The Government here is a new one. Its establishment
is a step in ways heretofore untrodden by the American Republic. Its history furnished no
example, its law no precedent. Her statesmanship had, up to the moment, framed no model
from which a colony government might be fashioned; the philosophy of her institutions
presents no theories along which action may unhesitatingly proceed. There is no experience
to guide the feet; no settled principles of colonial government and administration to which men
may turn to justify their action or dissipate their doubts. Therefore, when, seeing, as he
believed, certain Chinese aliens outraging the public conscience and seriously threatening
public security, the Governor-General, believing that the only procedure adequate to protect
the public interests was the expulsion of the offenders, began an investigation to determine
whether or not he had power of expulsion, he was confronted with a question of very serious
intricacy and doubt. It was of the very greatest importance also. It is undoubted that he was
thoroughly convinced that he was required, by the obligation of his office, to act if he law
authorized it. He knew the strength and the justice of the proposition that a public official may
not sit supinely by and see outraged the very things that he is bound by his oath to protect
without exhausting every atom of his power and every resource of his office in an attempt to
meet the situation as it ought to be met. His primal duty, under such circumstances, would be
to determine what were his powers. The situation would imperatively demand that he
ascertain what he could do. This involves, as already said, a determination upon which even a
court, learned in the law and experienced in its construction, would enter with hesitation and
misgivings. The question to be resolved is so many-sided, its relations so intricate and
numerous, the result of its determination so far-reaching, politically as well as legally, as to
require the most careful consideration, the must exhaustive forethought. It involves not only
the discussion and resolution of judicial as well as administrative questions of the most highly
important kind, but also whether this Government has any power of expulsion whatever.
He has, then, as his initiatory resolutions, to determine whether the Government of
the Philippine Islands has the power of expulsion at all. As a condition precedent to the
decision of that question he must adjudge (a) whether the Government here is in any sense a
sovereign government; for the power to expel a domiciled foreigner is distinctively an attribute
of sovereignty, to be exercised, under the uniform practice of the Government of the United
States, only in exceptional cases and then under recognized methods of procedure. If he
resolve that question in the negative, he must then decide (b) whether the Government of the
United States has conferred upon the Government here those powers of sovereignty
necessary to authorize such act.
It is needless to say that the very gravest questions are involved in these
determinations. I do not stop to enumerate them or to present the serious difficulties which
must be met in making them. It suffices to say that, when he has fully resolved those
questions, he is then only on the threshold of his inquiry. Inasmuch as it might appear to one
investigating the subject for the first time that the power of expulsion might be an inherent
attribute of the Executive, as in some countries it is alleged to be, he must determine, first, the
fundamental nature of his executive powers. He must decide whether, under the form of the
government of which his office is the executive part, the power of expulsion belongs to the
executive exclusively, or solely to the legislative, or whether it belongs to both, in combination
with the judicial. This requires that he distinguish his executive functions from those which are
legislative, upon the one hand, and those which the judicial, upon the other — a determination
most difficult in many instances, not only by reason of the considerations above set forth, but
also for the reason that, while the broad distinguish is clear, nevertheless, frequently, the
nature of one verges so closely upon that of the other as to render the difference between
them subtle, uncertain, and elusive.
He must, second, judge whether that power, whatever it is and whatever its extent,
came untrammeled to the Military Governor from the hands of the President, or whether he
received it modified and restricted. This determination is necessary for the reason already
pointed out that the Governor-General has only such executive power as has the Military
Governor. This involves and interpretation of the order of the President above quoted — a
very real judicial construction of its legal signification.
He must decide, third, whether the acts or orders by which executive power was
given to the Military Governor and those by which that power was transferred to him do or do
not, by their very terms, define that power itself, its character and extent, or specify with more
or less certainty the acts which he may perform under it. This again brings into play functions
which approach the judicial so closely as to render them practically indistinguishable.
After all these investigations, interpretations, and constructions have been
completed, there still remains to the Governor-General for solution one of the most difficult
problems of all, that of determining whether or not, irrespective of the foregoing
considerations, there exists in force and vigor, under the American regime, a law of Spanish
origin with which he may adequately meet the situation that faces him. As we have already
seen, the instructions of the President of the United States to General Merritt, dated May 19,
1898, provide that —
"The municipal laws of the conquered territory, such as affect
private rights of person and property, and provide for the punishment of
crime, are considered as continuing in force, so far as they are suspended
or superseded by the occupying belligerent; and in practice they are not
usually abrogated, but are allowed to remain in force, . . ."
We have also seen that the proclamation of General Merritt on the capitulation of
the Spanish forces in Manila also provides that —
"The municipal laws such as affect private rights of persons and
property, regulate local institutions, and provide for the punishment of crime
shall be considered as continuing in force, so far as compatible with the
purposes of military government, and that they be administered through the
ordinary tribunals substantially as before occupation, but by officials
appointed by the government of occupation."
It is evident that the character and contents of these two instruments necessitate
that the Governor-General consider and decide when the laws and institutions of the United
States are so incompatible with those of Spain in the Philippine Islands as to render the latter
inoperative. This involves the consideration of the broad question of when the laws, customs,
and institutions of a conquering nation are so incompatible with those of the conquered as to
render them inoperative and ineffective by the mere change of sovereignty. This is a theme
upon which writers have differed and concerning which the courts have not been free from
uncertainties and even contradictions. The field opened for this necessity is so wide, the
subject-matter so uncertain and elusive, and the principles involved so dependent for their
application upon the personal equation of the one dealing with the subject that it is extremely
easy for two men, equally honest and able, to differ widely on a result. Much depends upon
the atmosphere in which one is placed and the point of view from which the subject is seen.
The Supreme Court of the United States has just held unconstitutional and void the law
relating to the falsification of an official document by a public official, a law of Spanish origin,
which had generally been supposed, and had repeatedly been held by the Supreme Court of
the great body of our laws in of Spanish origin and comes to us and is enforced by us upon
the theory that it has survived. As as result, this court is continually called upon to adjudicate
the question whether a given Spanish law is still in existence. Parties are unceasingly
asserting rights of property and of person based upon such laws. These assertions are as
frequently denied. It is a subject over which the best judgments differ and a question over
which uncertainly continually holds sway. It was a question, however, which had to be met and
solved by the Governor-General. It could not be avoided. It confronted him squarely and
insistently, because a condition and not a theory was thrust in his face. It appears that, prior to
the conquest and occupation of the Islands by the Americans, there was in force here a royal
decree giving the Spanish Governor-General power, when certain conditions conjoined, to
expel domiciled foreigners. That decree reads:
"OFFICE OF THE COLONIAL SECRETARY.
"No. 607.
"EXCELLENCY: In view of the proceedings relative to the
consultation had by the Audiencia de Manila with the government, through
the supreme court, the latter having rendered a report on the subject-
matter thereof, which refers to deportations, the case was forwarded for
report to the political division of this office, and His Majesty the King (whom
may God preserve), and in his name the Queen Regent, passing upon the
report, has been pleased to decide that:
"1. According to laws 18, 19, and 20, title 8, book 7; 35, title 15,
book 2;7, title 4 , book 3; 61, title 3, book 3, the royal cedula of May 19, 1819,
and the special royal order of April 20, 1881, Governors-General of the
Philippines have power to determine the legal expediency of the
deportations which they may deem necessary for the preservation of public
order.
"2. The record in any such cause commenced by the Governor-
General must be transmitted to the supreme government of the nation, in the
form and manner provided by the Laws of the Indies, in order that it may take
cognizance of the reasons which he may have had for ordering the
deportation.
"3. The king and form of justification which should appear in the
record is left to the reasonable discretion of the Governor-General.
"4. The Governor-General may deport any person who, had he
been prosecuted in the courts of justice under a criminal charge, would have
been pardoned, as expressed in law, 2, title 8, book 7, of the Recompilation
of the Laws of the Indies.
"5. With respect to such persons as were tried and acquitted by
the courts of justice, if the charges, the reason for the deportation, were the
subject-matter of the prosecution, then, bearing in mind the sanctity of a
matter which has become res ajudicata, deportation by the Governor-
General is improper.
"6. These deportations must be decreed by the Governor-
General in person, and not by his tenientes and auxiliares (lieutenants and
assistant), in accordance with law 19, title 8, book 7, of the Recompilation of
the Indies.
"7. The laws in force in the Philippines relative to deportations are
those of the Indies before mentioned, so that the lack of a faithful and exact
compliance with requisites prescribed therein for the exercise of such power
constitutes the crime defined in articles 211 and 212 of the Penal Code in
force in the Philippines.
"8. The right of appeal to the audiencias, granted by royal order
of May 25, 1847, from the action taken by the Governor-General, was
abolished by the decree of November 28 of the same year, which provides
in article 7 that orders issued by the Governor-General in matters pertaining
to government or to the exercise of his discretional powers, can only revoked
by the Supreme Government.
"The foregoing by this royal order is communicated to you for your
information and the consequent effects. — May God preserve Your
Excellency many years. Madrid, August 2, 1888. (Signed) Ruiz Capdepon.
"To the Governor-General of the Philippine Islands:
"Comply with and observe the above royal order and issue to the
provincial chiefs the necessary orders thereunto pertaining. — (Signed)
Weyler."
The question was thus squarely up. Did that law survive the American occupation?
An answer must be given by the Governor-General, if he believed his duty to the State
required him to act if he had the power. Once more he must interpret, construe, and
determine; and in doing so he must tread legal mazes as intricate and bewildering as ever
were trodden by a judge at court.
Having so far considered the processes which the mind of the Governor-General
must pass through and the determinations which he must make in arriving at a conclusion as
to whether he may or may not act in the case given, it is now necessary to inquire what is the
nature of those processes and determinations. Evidently they involve the element of discretion
— of judgment as a result of investigation — a conclusion as to the existence of a law, an
authority, a power, which lies at the very doorway of his activities. His judgment operates in
field over which he has general and exclusive jurisdiction and embraced a subject concerning
which he must judge alone. It includes also a determination as to the character, quality, and
extent of his own power and the rights and obligations of the person against or in reference to
whom that power is to operate. Every act of enforcement of whatever law, real or imaginary,
must necessarily and inevitably be preceded by two determination. First, is there a law at all;
and, second, if there is, what is the meaning of it; what is its interpretation? These
determinations must always be made. They were laid upon the Governor-General by the very
of his functions — an executor of the law. It is evident, therefore, in view of these
consideration, that such functions involve much that is judicial. The executive and judicial
functions here merge and overlap each other to a conspicuous extent; and it becomes at once
apparent that the functions exercised by the Governor-General in reaching a conclusion to act
in a given case, and especially in the case before us, were, in their nature, essentially judicial.
If a judge had done that things which the Governor-General did in arriving at this conclusions,
his act and determination would unquestionably have been judicial. Are they any the less so,
in their essential nature, because a Governor-General and not a judge was the actor? The
methods pursued by the two, Governor-General and judge, are not different. The subject
matter is precisely the same. The mental processes involved are identical. The discretion used
is the same. The objects in view are wholly similar — the application of a public law to
personal misconduct; the protection of the public against the malicious activities of a corrupt
individual.
It now becomes necessary to determine what would be the civil responsibility of the
judge acting upon the same questions and making the same determinations involved in the
activities of the Governor-General complained of in this suit. The reason for this necessity is
found in the analogy which I propose to assert between the civil liability of a judge performing
judicial functions and of the Governor-General exercising essentially the same attributes. The
result of that analogy is that if a judge, performing the acts complained of, would not be civilly
liable, then the Governor-General is not.
I, therefore, proceed to discuss the civil liability of judges. I deal with it in three
aspects: First, where the judge acts within the limits of his jurisdiction; second, where he acts
wholly without jurisdiction, and, third, where he acts in "excess of jurisdiction." This discussion
of the subject in such threefold aspect is rendered necessary by reason of the claim made in
this case that the Governor-General, in whatever he did or brought about in the expulsion of
the complainant and his companions, was wholly without authority, power, or jurisdiction
and for that reason he is civilly responsible for whatever damages such illegal acts may have
caused.
My position in the discussion of the question is that a judge may, in reality, act
wholly without power, authority, or jurisdiction and still not be civilly liable; that jurisdiction
ought not to be, and can not be, a vital — a controlling element in determining his liability; and
that, if the question resolved by the judge be one whose determination required the exercise
of the judicial functions, he is not civilly liable for damages caused by an act performed in
pursuance of such determination even though he acts wholly without jurisdiction. I further
contend that the doctrine making jurisdiction the test of liability is illogical and unsound, and
that the doctrine of excess of jurisdiction, carried to its logical conclusion, is a complete
refutation of the original theory.
It is the universal statement of text writers that "no person is liable civilly for what he
may do as judge while acting within the limits of his jurisdiction." This is also a settled principle
of law as applied by the courts. This doctrine is so thoroughly established that no authority
need to be cited to sustain it. It is also universally asserted by text writers, and maintained by
many courts, that jurisdiction is the sole and exclusive test of judicial liability, and it is affirmed
that a judge is always civilly liable if he act without jurisdiction. Mr. Cooley in his work on Torts
(2d ed., p. 486) says:
"Every judicial officer, whether the grade be high or low, must
take care, before acting, to inform himself whether the circumstances justify
his exercise of the judicial function. A judge is not such at all times and for
all purposes; when he acts he must be clothed with jurisdiction; and acting
without this, he is but the individual falsely assuming an authority he does
not posses. The officer is judge in the cases in which the law has
empowered him to act, and in respect to persons lawfully brought before
him; but he is not judge when he assumes to decide cases of a class which
the law withholds from his cognizance, or cases between persons who are
not, either actually or constructively, before him for the purpose. Neither is
he exercising the judicial function when, being empowered to enter one
judgment or make one order, he enters or makes one wholly different in
nature. When he does this he steps over the boundary of his judicial
authority, and is as much out of the protection of the law in respect to the
particular act as if he held no office at all. This is a general rule"
This same rule, it is alleged, is laid down by many authorities, among them being:
Marshalsea case (10 Coke, 68b; 2 Adol. & E. (N.S.) 978); Piper vs. Pearson (2 Gray, 120);
Van Slyke vs. Ins. co. (39 Wis., 390); Stephens vs. Wilson (115 Ky., 27); Bradley vs. Fisher
(13 Wall., 335); MacCall vs. Cohen (16 S.C., 445); Bigelow vs. Stearns (19 Johns., 39);
Vosburgh vs. Welch (11 Johns., 175); Terry vs. Wright (9 Colo. App., 11); Lange vs. Benedict
(73 N.Y., 12); Austin vs. Vrooman (128 N.Y., 229).
When, however, it became necessary to put this rule into practical operation, to
apply it to a particular matter, it was found that it did not meet the necessities of the case. Its
application did not work justice. It was found imperfect and inadequate. It was seen to be lame
and halt. It condemned in one case and relieved in another when there existed no real
distinction between them, either in logic or justice. While this was not admitted, perhaps, in
words by the courts, it was, nevertheless, seen and felt. Accordingly, laboring under the
pressure of these conditions and to avoid the anomalous results flowing from a rigid
application of the theory, they announced the doctrine of "excess of jurisdiction."
This doctrine holds "that judges or superior and general jurisdiction are not liable to
civil actions for their judicial acts even when such acts are in excess of their jurisdiction."
(Ross vs. Griffin, 53 Mich., 5; Grove vs, Van Duyn, 44 N. J .L., 654; Randall vs. Brigham, 7
Wall., 523; Jones vs. Brown, 54 Ia., 74; Lange vs. Benedict, 73 N.Y., 12; Yates vs. Lansing, 5
Johns., 282; Robertson vs. Parker, 99 Wis., 652; Willcox vs. Williamson, 61 Miss., 310;
Calhoun vs. Little, 106 Ga., 336; Miller vs. Seare, 2 W. Bl., 1141; Ackerly vs. Parkinson, 3 M.
& S., 411; Austin vs. Vrooman, 128 N. Y., 229; Root vs. Rose, 6 N. D., 575; Webb vs. Fisher,
109 Tenn., 701; U. S. vs. Bell., 135 Fed., 336; English vs. Ralston, 112 Fed., 272; 85 Fed.,
139; Bradley vs. Fisher, 13 Wall., 335.)
As before stated, the courts, in laying down the doctrine that a judge is exempt from
civil liability if he acts within his jurisdiction, also assert at the same time that he is liable if he
act without jurisdiction. In the same way, strange to say, the courts who lay down the doctrine
that a judge is not liable civilly even if he act inexcess of jurisdiction, also assert that he is
liable if he act without jurisdiction. In other words, whether it be a court which asserts the
doctrine of nonliability with jurisdiction or whether it be one who asserts the doctrine of
nonliability with excess of jurisdiction, they all concur in asserting liability in case the court acts
with lack of jurisdiction. To put it in a different way: The decisions make no distinction between
cases where the court acts with jurisdiction and those where he acts in excess of jurisdiction;
but they do make a crucial distinction between those cases where he acts in excess of
jurisdiction and those in which there is a lack or want of jurisdiction. It is accordingly evident,
under this judicial conception, that, so far as the civil liability of the judge is concerned,
acting completely with jurisdiction and acting completely in excess in jurisdiction mean exactly
the same thing; while acting completely in excess of jurisdiction and acting completely without
jurisdictionmean exactly opposite things. This inference is the inevitable one because the
judge is entirely exempt if he act within his jurisdiction, and he is wholly immune if he act
in excess of jurisdiction; but if he act without jurisdiction, he is fully liable.
 I confess my inability to see how two conditions so different in their nature and
characteristics as acting with jurisdiction and acting in excess of jurisdiction can be held to
produce the same result — having in mind always the proposition universally asserted by the
courts to be the basis of that difference in liability, that the nature of the judge's act, i.e.,
whether it makes him civilly liable or not, depends entirely on jurisdiction. That jurisdiction and
excess of jurisdiction are conceptions wholly different is perfectly evident from the standpoint
of language alone. That their legal nature is entirely different will appear when we discuss
want of jurisdiction and compare it with excess of jurisdiction.
If "excess of jurisdiction" means anything different from "want of jurisdiction", under
the doctrine of excess of jurisdiction as it is asserted, it lies not at all in the essential nature of
those conditions but, rather, in the accidental circumstance stated in the decisions, that the
court, having once acquired jurisdiction of the subject-matter and the parties, any act of his
during the proceedings which is beyond or outside of his real powers is in "excess" of
jurisdiction merely, and has a different quality from that which the same act would have if there
had been no jurisdiction in the first instance. In other words, jurisdiction having once been
present in the cause, it continues to shed its beneficent influence over the court and his acts,
no matter where he goes or what he does. This is the distinctive feature of the doctrine of
excess of jurisdiction as that doctrine, the touchstone of nonliability. As a necessary
consequences, the court who lacks this protective genius of jurisdiction may lose his fortune
and perhaps his liberty, although he may perform exactly the same acts as he who is wholly
excused because he exceeds his jurisdiction. It becomes necessary to inquire, therefore, in
what way excess of jurisdiction differs essentially from lack of jurisdiction, for, if they produce
results so violently in opposition, there must be a wide and essential difference between them
— a difference wholly unlike that set forth in the decisions.
The first, as to excess of jurisdiction:
To exceed jurisdiction is to go outside of it; to pass beyond its limits. To exceeds is
"to go beyond; to go too far; to pass the proper bounds or measure." "Forty stripes he may
give him and not exceed." Excess is "the states of going beyond its limits. Excess of
jurisdiction is the state of being beyond, i.e., outside the limits, of jurisdiction. This is the only
definition of excess of jurisdiction which the term will permit. This is precisely the definition
given in the very decisions which lay down the doctrine. One of the first cases in the United
States to present the doctrine of excess of jurisdiction was that of Lange vs. Benedict (73
N.Y., 12). In that case it appeared that the defendant presided as judge at a regular session of
the United States Circuit Court, before which plaintiff was tried and convicted of a statutory
offense punishable by a fine or to be imprisonment. He was sentenced by the defendant to
pay a fine and to be imprisoned. Plaintiff paid the amount of the fine to the clerk of the court,
who paid it into the United States Treasury. The plaintiff was also imprisoned. A writ of habeas
corpus was granted by and returned into said court during the same term, and, on such return,
defendant holding the court and as judge thereof, vacated and set aside the sentence, and
resentenced the plaintiff to be imprisoned for the term of one year. Under this sentence the
plaintiff was imposed. Such proceedings were subsequently had that the Supreme Court of
the United States (Ex parte Lange, 18 Wall., 163, 176) adjudged the resentence to have
been without authority and void. In deciding the case on the proceedings mentioned the
Supreme Court of the United States said (Ex parte Lange, supra):
"We are of opinion that when the prisoner, as in this case, by
reason of a valid judgment, had fully suffered one of the alternative
punishments to which alone the law subjected him, the power of the court to
punish farther was gone. That the principle we have discussed then
interposed its shield, and forbid that he should be punished again for that
offense. The record of the court's proceeding, at the moment the second
sentence was rendered, showed that in that very case, and for that very
offense, the prisoner had fully performed, completed, and endured one of
the alternative punishments which the law prescribed for that offense, and
had suffered five days' imprisonment on account of the other. It thus showed
the court that its power to punish for that offense was at an end. Unless the
whole doctrine of our system of jurisprudence, both of the Constitution and
the common law, for the protection of personal rights in that regard, are a
nullity, the authority of the court to punish the prisoner was gone. The power
was exhausted; its further exercise was prohibited. It was error, but it was
error because the power to render any further judgment did not exist."
Commenting on this same case the Supreme Court of the United States in the case
of Ex parte Parks (93 U.S., 23) said:
"But after thorough investigation which has been given to his
subject in previous cases, particularly those of Ex parte Yager (8 Wall., 85)
and Ex parte Lange (18 id., 163), it is unnecessary to pursue the subject
further at this time. The last-mentioned case is confidently relied on as a
precedent for allowing the writ in this case. But the two are totally unlike.
In Ex parte Lange we proceeded on the ground that, when the court
rendered its second judgment, the case was entirely out of his hands. It
was functus officio in regard to it. The judgment first rendered had been
executed and satisfied. The subsequent proceedings were, therefore,
according to our view, void."
In spite, however, of the fact that the Supreme Court of the United States had held
that the court of the court in resentencing plaintiff was absolutely without jurisdiction and void,
nevertheless, the court of appeals of the State of New York, deciding the action against the
judge for damages (Lange vs. Benedict, supra) after the rendition of the judgment of the
Supreme Court of the United States on the question of the resentence, said, in giving a
definition of the phrase "excess of jurisdiction:" "The act of the defendant was then one in
excess of or beyond the jurisdiction of the court." "He had jurisdiction of the cause originally.
That jurisdiction had ceased. His further acts were beyond or in excess of his jurisdiction." "If it
be admitted that at the instant of the utterance of that order, jurisdiction ceased, as is claimed
by the plaintiff, on the strength of the opinion in Ex parte Lange (supra), as commented upon
in Ex parte Parks( 93 U.S., 18), and that all subsequent to that was coram non judice, and
void; still it was so, not that the court never had jurisdiction, but that the last act was in excess
of jurisdiction."
If the intention of the New York court in that case was to use the phrase "excess of
jurisdiction" in the sense that there was an essential and vital distinction between it and "want
of jurisdiction," a distinction so essential and vital as to warrant liability in the one case and
nonliability in the other, I am in entire disagreement with its conclusion. If I were unsupported
in my disagreement, I should hesitate long and doubt much before I differed with authority so
eminent. But the Supreme Court of the United States, as shown by the quotation given, has
held in that very case that the district court, in resentencing Lange, acted with complete and
utter absence of jurisdiction. I am in perfect accord with the use of the phrase "excess of
jurisdiction" when it describes a particular legal condition which, in some of its colorings, some
of its accidental or incidental features, is somewhat different from the legal condition "absence
of jurisdiction". But I am not in accord with its use if it is meant to describe something which
is essentially different in quality, that is, a different thing, from excess of jurisdiction. If the
difference meant to be shown is, in its nature, the same difference which is indicated between
two horses when it is said that one is black in and the other bay, I agree. But if it is meant
thereby to indicate that one is a horse and the other a cow, I disagree. The two legal
conditions are essentially and really identical. Their coloring may be different but they are the
same animal. The question before us is not whether there is such a difference in markings that
the two conditions ought to be given different names as a matter of convenience, but, rather,
is there a difference so important, so essential, so vital that we may establish upon that
difference as an eternal foundation a just principle of law which wholly saves in the one case
and utterly destroys in the other. The real and practical question for us is "What does that
difference amount to?" What results may it justly produce to the parties and the court? What
results must it necessarily produce?
In the case of Clarke vs. May (2 Gray, 410), a justice of the peace, having
jurisdiction of the cause, summoned a person to appear before him as a witness therein. The
person disobeyed. The case was tried and ended. Thereafter the justice issued process to
punish for contempt the person who had disobeyed hissubpoena. He was arrested, fined, and
not paying, was committed. It was held on appeal to the Supreme Court "that the power and
jurisdiction of magistrates in such cases was only incidental and auxiliary to the trial of the
cause in which the witnesses were summoned; and could not be legally exercised, except
during the pendency of such cause; that after its final disposition by a judgment, the authority
to punish such contempt ceased, and that Clarke was therefore illegally committed. . .
Although he had jurisdiction of the subject-matter, he was empowered by law to exercised it
only in a particular mode, and under certain limitations. Having disregarded these limitations,
and exercised his authority in a manner not sanctioned by law, he has been guilty of an
excess of jurisdiction, which renders him liable as a trespasser to the injured party."
In the case of Gordon vs. Longest (16 Peters, 97), where the defendant took the
proper steps, under a statute which required a State court under certain conditions to transmit
the cause to the United States courts, to remove an action brought against him in the State
court to the United States court, and, where the State court persisted, notwithstanding such
steps, in trying the cause, the court said:
"This being clear in the language of the above act, it was the
duty of the State court to proceed no further in the cause.' And every step
consequently taken, in the exercise of a jurisdiction in the case, whether in
the same court or in the Court of Appeals, was coram non judice."
The case of Austin vs. Vrooman (128 N. Y., 229) is one very similar to the one last
mentioned. There the defendant, a justice of the peace, caused the plaintiff to be arrested on
a charge of supplying diluted milk to a butter factory. Plaintiff, on being arraigned, pleaded not
guilty, waived preliminary examination and offered bail for his appearance before the next
grand jury. The offer was overruled by the defendant. He was tried, found guilty, and
sentenced to pay a fine and to be imprisoned until paid, not to exceed ninety days. Pursuant
to such sentence he was confined in the country jail. The statute making the act of plaintiff a
crime provided that when a person charged with a violation of the Act should be brought
before a justice of the peace, he should have the right to elect to be tried by a jury after
indictment, and on such election the justice could not proceed to try him but could only hold
him to a court having authority to inquire, by intervention of a grand jury, into offenses triable
in the county. In this case the court said, after referring to the case of Gordon vs. Longest
(supra), in which it was held that, in a case very similar in principle to the one under
consideration, any action taken by the State court after refusing to transmit the cause before it
to the United States court was wholly void:
"Here, in the course of proceedings which he was forced to
entertain, and in the case of one over whose person he has properly
acquired jurisdiction, the justice is confronted with the necessity of deciding
a question depending upon the construction to be given to a statute, and that
question must be decided by him one way or the other before he can take
another step in those proceedings which, up to that moment, have been
legally and properly pending before him, and over which he has had full and
complete jurisdiction. It seems plain that his decision upon the question is
one in the course of a proper exercise of the jurisdiction first committed to
him, and that his error in deciding that he had jurisdiction to proceed was an
error of judgment upon a question of law, and that he is, therefore, not
responsible for such error in a civil action. It is unlike the case where a justice
of the peace proceeded to try a civil action for assault and battery.
(Woodward vs. Paine, 15 John., 492). The justice never had in such case
obtained jurisdiction over the subject-matter and he could not obtain it by
deciding that he had it. The case falls under the principle of law that where
a judge never has had jurisdiction over the subject-matter, he acts as a
trespasser from the beginning in assuming it, and his decision that he has it
is no protection to him. I know it was stated in Gordon vs. Longest (16 Peters,
97), in a case where the defendant took the proper steps to remove and
action brought against him in the State court to the United States court and
where the judge of the State court persisted, notwithstanding those steps, in
trying the case, that every of jurisdiction was coram non judice. Yet in such
a case the question is put whether the State judge would be liable for
proceeding with the case in the honest exercise of his judgment."
Being thus informed of the judicial meaning of the phrase "excess of jurisdiction," it
becomes necessary, second, to determine what is meant judicially by the expression "lack of
jurisdiction." An example frequently given by the courts to express what is meant by lack of
failure of jurisdiction is that of a justice of the peace taking cognizance of and trying a civil
action for assault and battery. Over such actions jurisdiction was never in any way conferred
by law upon justices of the peace. In fact, the law expressly prohibits them from taking
cognizance of such actions. In such case, the justice never obtains jurisdiction over the
subject-matter. He acts wholly without any or jurisdiction. A case illustrating want of jurisdiction
is that of Piper vs. Pearson (2 Gray, 120). There a justice of the peace of the County of
Middlesex tried an individual named Russ for an offense committed within the district of
Lowell. By statute said justice has not power or authority to take cognizance of offenses
committed "within the distinct of Lowell." The court said: "In the case at bar, the defendant had
no more power to entertain jurisdiction of the complaint against Russ than any other individual
in the community." "If a magistrate acts beyond the limits of his jurisdiction, his proceedings
are deemed to be coram non judice and void." If he has no jurisdiction of a cause, he can not
sit as a magistrate to try it, and is entitled to no protection while acting beyond the sphere of
his judicial power. His action is thus extrajudicial and void."
This case, however, is not one which ought fairly to be taken as generally
illustrative of that class wherein the court acts wholly without jurisdiction, inasmuch as here
whether or not the court had jurisdiction was a question of fact. Whether or not the crime was
committed "within the distinct of Lowell" was not a question of law. Nevertheless, the same
principle would have been involved if there had been a dispute as to the district within which
the crime was actually committed and the court had decided that question upon conflicting
evidence.
In the case of Bradley vs. Fisher (13 Wall., 335), the court gave the following as
illustrating a condition of complete lack of jurisdiction.
 "Thus, if a probate court, invested only with authority over wills
and the settlement of estates of deceased persons, should proceed to try
parties for public offenses, jurisdiction over the subject of offended being
entirely wanting in the court, and this being necessarily known to its judge,
his commission would afford no protection to him in the exercise of the
usurped authority."
Having seen from the adjudicated cases the meaning given to the phrases "excess
of jurisdiction" and "want of jurisdiction," it remains to note what has been judicially declared to
be the difference between them. The case last cited contains a statement of that difference.
Immediately following the quotation taken from that case and set forth above appear these
words:
"But if on the other hand judge of a criminal court, invested with
general criminal jurisdiction over offenses committed within a certain district,
should hold a particular act to be a public offense, which is not by the law
made an offense, and proceed to the arrest and trial of a party charged with
such act, or should sentence a party convicted to a greater punishment than
that authorized by the law upon its proper construction, no personal liability
to civil action for such acts would attach to the judge, although those acts
would be in excess of his jurisdiction, or of the jurisdiction of the court held
by him, for these are particulars for his judicial consideration, whenever his
general jurisdiction over the subject-matter is invoked. Indeed some of the
most difficult and embarrassing questions which a judicial officer is called
upon to consider and determine relate to his jurisdiction, or that of the court
held by him, or the manner in which the jurisdiction shall be exercised. And
the same principle of exemption from liability which obtains for errors
committed in the ordinary prosecution of a suit where there is jurisdiction
shall be exercised. And the same principle of exemption from liability which
obtains for errors committed in the ordinary prosecution of a suit where there
is jurisdiction of both subject and person, applies in cases of this kind, and
for the same reasons."
This excerpt illustrates clearly the difference between excess of jurisdiction and
lack of jurisdiction as it is universally presented by text writers as well as by courts.
The suggestions made after the discussion of the case of Lange vs. Benedict are,
in principle and in effect, applicable to the cases just presented. Nothing could be clearer than
that the court, in Clarke vs. May, acted wholly without jurisdiction. It is of no consequence
what it is called, whether excess of jurisdiction or failure of jurisdiction; it still remains the same
thing. The court itself said no when it used the words "after its final disposition by a
judgment, the authority to punish such contempt ceased, and that Clarke was therefore
illegally committed." The case of Austin vs. Vrooman is very like that of Gordon vs. Longest,
wherein the Supreme Court of the United States held that the lower court acted wholly without
jurisdiction in retaining the cause before it and proceeding to its disposition.
Being now fully informed of the meaning of the two legal conditions, "excess of
jurisdiction" and "lack of jurisdiction," and also of the difference between them as presented in
the decisions of the courts, I now desire to consider whether this difference is worthy in any
manner of effecting the exactly opposite legal results which it is alleged they produce. If they
produce results so unlike, they should be so different in their essential natures as to be plainly
and easily distinguishable. Yet in spite of that, after a careful consideration of every
adjudicated case upon the subject within my reach, I have been forced irresistibly to the
conclusion that there is not, really and intrinsically, the slightest difference between them. The
alleged difference is a fiction of law, pure and simple, born of the necessity to escape the
logical but wholly unjust and indefensible consequences of a rule of liability based on no
sound principle of law and incapable of defense upon any theory of logic or justice.
While we have seen from the cases cited the different circumstances which
attended the courts up to the time when they performed the acts complained of, namely, that
the one never had jurisdiction at all and the other had it at first but abandoned it later, we have
nowhere seen in those authorities anything of the real nature of those two conditions nor why
they should produce results so violently in opposition. We have also seen from those cases
that excess of jurisdiction is the state of being beyond the limits of jurisdiction, i. e., outside of
the power and authority conferred — so far outside indeed that the act of the court is coram
non judice and void. (Gordon vs. Longest, 16 Peters, 97; Ex parte Lange, 18 Wal., 163;
Clarke vs. May, 2 Gray, 410; Ex parte Parks, 93 U. S., 23.) We have also noted from those
decisions that the only characteristic of excess of jurisdiction, the quality and the only quality
which distinguished it from lack of jurisdiction, that which gave it its peculiar and distinctive
virtue, was that, in excess of jurisdiction the court had jurisdiction at the beginning of the
cause, but lost it later; whereas in lack of jurisdiction the court never had jurisdiction at all.
Now, if a court is really outside of the limits of his jurisdiction, what difference does
it make, as to his liability for subsequent acts, when he arrived there? Ought the time when he
finds himself outside to have any significance whatever? Should the fact he was outside at the
beginning of the cause, instead of when it had run half its course or more, have any force or
effect? Is the judge who was never inside the jurisdictional inclosure any more outside of it
than he who, having once been within, voluntarily steps wholly outside? Both being completely
outside, is one in worse position, legally or morally, than the other? Does the mere fact that
the one had never been inside necessarily make him a greater malefactor that the other who
comes as completely out, having once been in? Ought the legal consequences of their acts to
be different when both are acting from exactly the same basis, viz, outside of their authority?
One who steps from his house into the street is as much outside the structure as though he
had never entered it; and while there, he is as unprotected from the elements as though he
had never had a roof over his head. Although he may return to his house and enjoy again its
shelters and comforts, still he can never change the fact that he once stood unprotected in the
street, that the changing wind had once buffeted him as it willed, that the storms had once
drenched him to the skin, and that the frost had once bitten him to the bone. He who owns a
million of money and throws it into the sea remains in as penniless of poverty as he who never
owned a dollar in all his life. The court who, having once been clothed in the garment of
jurisdiction, divests that garment, stands forth as judicially naked as he who had never been
robed with the vestments of authority. So, the court that once had judicially of a cause and
divests that power by his own act stands thereafter as bereft of judicial authority as though he
had never acted under sanction of the law. As a matter of language, that is the only meaning
that can be given to the expression, "excess of jurisdiction;" as a matter of fact, that is the only
definition claimed for it.
I am fully aware that a judge of a court which acts wholly without jurisdiction is, in a
sense, a usurper. I know that a judge who proceeds in complete absence of jurisdiction, really
and effectually by such act, makes a law to fit the case. In other words, he legislates. I admit
that to permit a judge thus to make a law and then to adjudicate it also is to permit a approach
to tryranny. I am fully aware that this is the essence of the argument against the immunity of
the judge who thus acts. It must not be forgotten, however, that we are discussing whether
there is an essential difference between lack of jurisdiction and excess of jurisdiction. If,
therefore, we find that there is fully as much tyranny in the one as in the other, what matters it
how much tyranny there may be in lack of jurisdiction? The cry of tryranny against acting
without jurisdictions will be effectively stopped if it appears that acting in excess of jurisdiction,
the thing which is permitted by the courts wholly to excuse, effects exactly the same result.
That the one is tyrannical as the other can not doubted. A judge, having by law general
jurisdiction criminally, who declares a state of facts presented to him to be a crime within the
provision of that law, when in reality it is not a crime at all, creates a law as distinctively and
completely as does the judge who decides that there is a law giving him jurisdiction criminally,
when in fact no such law exists. In such case, he declares a crime to exist when it really does
not. To enable a court to declare an act a crime, there must be a law making it a crime. To
declare an act a crime when there is no law making it such, is, so far as that particular case
and all others like it are concerned, to make a law by judicial fiat. What signifies it that the
court has jurisdiction of all larcenies if he declares an act a larceny which in truth and reality is
not? The fact that he has jurisdiction of all larcenies none the less makes his erroneous act
that creation of a new law. What does it signify that he once had jurisdiction when he thus, by
his naked fiat, makes criminal an act otherwise legal and moral, and thereby convicts and
imprisons an innocent man in violation of the law of the land. He could go no farther, could do
no more, if he acted wholly without jurisdiction from the beginning. Of what significance is it
that in the one case he acts in excess of jurisdiction and in the other without jurisdiction when
he does exactly the same thing and produces exactly the same result in both cases?
We have already seen that the only difference which any court or text writer has
been able of excess of jurisdiction the court had jurisdiction of the subject-matter at the
beginning whereas in the other case jurisdiction was never present at all. The only use which
courts and text writers have made of that difference, the only use in fact that could possible be
made of it, is that, having jurisdiction of the subject-matter, the court then has the power to
determine whether or not a given set of facts presented to him to induce his action falls within
his jurisdiction; whereas, in the case of failure of jurisdiction, there being in fact no law
conferring powers, the court had no power or authority to determine anything whatever. It is
urged also that and indispensable prerequisite of the effective administration of justice is that a
judge, having jurisdiction, be allowed to decided whether a given set of facts in within the law
by which his jurisdiction is conferred. But is it any more necessary and essential that he be
allowed to decide that question that it is that he be allowed to determine whether he has any
power at all in the premises? Is it more essential for him to be allowed to decide whether a
certain set of facts is or is not within his powers that it is to allow him to determine whether or
not he haspowers? Is it any more an inevitable prerequisite that he be permitted to determine
the extent of his powers than that he be allowed to decide whether he has powers? If he is a
court, that very fact makes it necessary to determine what his powers are. To do that he must
not only determine what the laws are and what they mean, but he must also determine
whether there is a law. It is sometimes a very much more difficult question to determine
whether there is any law at all than it is to decide what the law means when its existence is
admitted. But, comes the suggestion, the court in such cases having once had jurisdiction of
the subject-matter "no personal liability to civil action for such acts (in excess of jurisdiction)
would attach to the judge, although those acts would be in excess of his jurisdiction or of the
jurisdiction of the court held by him, for these are particulars for his judicial consideration, . . ."
(Bradley vs. Fisher, supra.) This suggestion may be answered in two ways:
It means nothing to say that the law required the lower court to act upon the
question before it, it having jurisdiction of the cause at the time and it already having
proceeded therewith to the point where it was confronted with the question concerning which it
erred. Exactly the same thing, in effect and in principle, may be said of the court which
proceeded to take cognizance of a cause in entire absence of authority to do so. For, the law
also requires as court to act whenever a question is presented to it, no matter if it be one
which it has no power or authority whatever. Law and necessity alike compel him. If he have
no jurisdiction or authority, he must, nevertheless, act. He must declare he has not and refuse
to proceed. But the point is, he must act, he must decide, he must adjudicate; and he must do
so whether the question of his jurisdiction be clear or doubtful. In both cases, excess of
jurisdiction and failure of jurisdiction, the courts are confronted with exactly the same
necessity, each must act. The question confronting one court viz, whether it has jurisdiction or
not, may be much more doubtful and far more difficult of solution than that which faces the
other. Yet one is liable and the other not. I have looked in vain for a valid or convincing reason
why, both being in error, the judge of one court should be destroyed and the other saved.
This suggestion also contains an admission rather than an argument — an
admission which destroys absolutely the theory that the crucial test in determining the civil
liability of a judge is that of jurisdiction. This suggestion admits that the thing which excuses is
not jurisdiction, but judicial action; not jurisdiction, but the exercise of the judicial function; not
jurisdiction, but "judicial consideration;" and that the only reason why the one excuses and the
other does not is the opportunity which the former furnishes for the use of the judicial faculty.
We must conclude, therefore, since it is not jurisdiction, but judicial action, which excuses, that
whenever and wherever a court exercises the judicial function, he will not be personally liable
civilly for the result of his action, and this utterly regardless of whether he ever had jurisdiction
or not. And that is precisely what I am contending for. I regard the doctrine of jurisdiction as
counter to that public policy which lies at the base of and is the sole and whole reason for the
immunity of judges from civil liability. That public policy demands that a judge shall be
protected when he is a judge, not when he has jurisdiction. He is judge when the acts like a
judge; that is, when he acts judicially. All that public policy requires in order to extend its
perfect protection over the judge is that the question in which the error is made shall be
a judicial question. In other words, it is the nature of the question involved which is
transcendently important, and not the position in which the judge finds himself legally, before,
at the time of, or after his error. The question is "What kind of question were you deciding
when you made that error?" not "What was your position before or after you made it?" It is, it
can be, of no consequence whatever whether there be failure of jurisdiction or excess of
jurisdiction. Is the question for determination one which requires the exercise of judicial
functions for its resolution? If it is, then that is an end to the matter of liability, utterly
irrespective of jurisdiction. An error by which a court induces itself to act wholly without
jurisdiction is an error of law, an error of judgment after consideration, of exactly the same
nature as that which induces a court to act in excess of jurisdiction. It is an error of judgment
as to whether he has any power at all in the premises. It is an erroneous determination of a
question which, by virtue of the fundamental constitution of his office, is inexorably forced
upon him for determination as his very first act in every case. Public policy, indeed, public
necessity, demands that he act, if he is judge. The safety, stability, and perpetuity of the State
and its institutions imperatively require him to act. Therefore, being thus driven to act, and his
first act being necessarily and inevitably to determine whether his authority comprehends the
subject-matter presented to him, can it possibly be true that public policy, the very force that
drove him to act, will punish him for such action if he has exercised the very functions with
which that public policy has endowed him? I am aware that it may be said that public policy
does not protect those who act wholly without authority. But my contention is that he has
authority. The fact that he is a judge means nothing else. That one has been named a judge is
no idle thing. It is to be presumed that he has some powers, that some authority attaches to
the office, or it would not have been created. As a judge he has responsibility of the most
solemn and important character. He has duties correspondingly solemn and important. By far
the greatest and most important of these is to determine what those powers are. But this is
simply the determination of the question of jurisdiction of the purest character. If he
determines that question wrongly and proceeds thereafter to act, he acts wholly without
jurisdiction. But is he more guilty or culpable than the judge who, with equal error, determines
a similar question of jurisdiction but at a different period of the cause? Is it possible that one
can be appointed to one of the highest and most august positions in the gift of man, and still
not be able to determine what he may do without subjecting himself to the risk of financial ruin,
and, mayhap, of imprisonment? If so, his office is not only a monstrous farce, but is also a
thing which deserves, as it certainly will receive, the contempt and the jeers of mankind. I
repeat that a judge acts judicially as purely and as perfectly when he is determining, at the
very inception of the proceeding, the question of whether or not he has any jurisdiction
whatever in the premises as he does when, later in the case, he decides what the extent of
that jurisdiction is. That is a judicial determination as clearly and unmistakably as would be his
decision that A was entitled to a judgment against B — only of very much more fundamental
character. So that, if it is the use of the judicial function which absolves, why should the one
be excused with the respect of the community and the other condemned with ruin and
disgrace? But, comes the reply, a judge is not a judge if he have no jurisdiction; and he can
not exercise judicial functions unless he is a judge. Therefore, if he have no jurisdiction he can
not exercise judicial functions. Not being able to exercise judicial functions, he can not, as a
necessary consequence, be excused from liability, inasmuch as immunity from liability springs
solely from the exercise of such functions. But that logic is fatally defective. Its major premise,
namely, that if he have not jurisdiction as judge is not a judge and can not, therefore, exercise
judicial functions, is wholly false. How is he to know whether he has jurisdiction or not? By
what process does he determine whether or not he has any power at all? Does that
determination come to him by inspiration? Is it handed to him ready-made? How does he
arrive at the conclusion that he has jurisdiction or that there is a complete failure of it? Why
does he arrive at one of these conclusions and not the other; and why does he not arrive at
both? Is he simply a man when he determines the question of jurisdiction but a judge when he
decides every question in the case? The answer to these questions is simple. The
determination by the court of the question whether he has or has not jurisdiction is a judicial
determination. The indispensable prerequisite to the to the simplest and most elementary
judicial act of any court is the determination of the question of jurisdiction. It is utterly
impossible for him to act in the simplest matter that can be brought before him without first
making that determination. It is an inevitable necessity which is inexorably required to precede
everything else in the functions of every court. It is thrust upon him instantly with the
appearance of the first suitor in his court. It is the indispensable prerequisite of every judicial
act. It was elemental in the creation of the judicial office. The implacable forces that created
the office, the unalterable nature of its functions, drive him irresistibly to that primordial
determination. That necessity is ever with him. It is imperative, merciless, and inexorable.
Born with his office, it dies only with his office. May we say, then, that it is not a judicial
determination — the exercise of judicial functions? Shall we assert that it is not an exercise of
judicial function to resolve the very question which the elemental nature of his office inevitably
requires him to decide as an absolute condition precedent to the performance of any other act
in the cause? It fact, it is the highest and most important judicial function which a court can
possibly exercise.
The court, although he sees his jurisdiction written as clear as light, makes,
nevertheless, the judicial determination of jurisdiction as really and as fully as does the court
who spends days and night of laborious inquiry into doubtful laws to decide the same
question. The court who had jurisdiction and then exceeded it inevitably determined first of all
that very question of primary jurisdiction as completely as did the court who, really having no
jurisdiction, determined erroneously that he had; and, if the first had made a mistake in
determining jurisdiction at the beginning, ought he to suffer more than he did suffer for making
later in the cause the very same mistake, the mistake by which he exceeded his jurisdiction?
The mistake in either case was over the same question, namely, jurisdiction. Ought it, in
fairness, to make any difference when the jurisdictional mistake is made? Ought the judge
who made the mistake at the beginning of the cause to suffer more than he who made a
mistake over the same question later in the same case? Ought an error in regard to
jurisdiction made at the opening of court be more fatal or require severer punishment than one
made at the close? Is a mistake greater because it was made at 10 a. m. than at 5 p. m.? To
be sure, in the one case he had jurisdiction at first; but he used it only as a means to exceed
that jurisdiction later, to put himself outside of it. That is simply a history of how he came to be
outside of his jurisdiction but, of itself, it furnished no reason why he should be excused from
liability while the judge who never had jurisdiction but, of itself, it furnished no reason why he
should be jurisdiction should be ruined financially, disgraced before the public and his
usefulness as a judge destroyed, wholly irrespective of the nature of the questions involved or
the functions exercised, and utterly without regard to the results produced. I know it may be
urged that the law having given the court jurisdiction and power to embark upon the cause, it
must necessarily be presumed that he has also power and jurisdiction to dispose of it; and that
if that disposition is wrong he ought not be liable as he was simply performing the judicial duty
which the law imposed. Exactly. But when the judicial office is created and a judge is
appointed, is there not, must there not be, a presumption of power on his part to determine the
limits and extent of his jurisdictions? Indeed, must he not necessarily have the power to
determine whether he has any power at all or not? The jurisdiction to determine whether he
has jurisdiction? The question whether a court has any power at all is often under which he is
asked to act may be doubtful. When its existence is assumed, its meaning, extent, scope and
application are many, many times open to the various interpretations. He must decide all
these questions before he proceeds with the case presented. I say again, he must have,
necessarily, jurisdiction to determine whether he has jurisdiction. Who is to determine that
question if he does not? He has no one to do it for him; no one to whom he may turn the
responsibility. He must act. He alone must assume the responsibility. He may not sit idly on
his bench and reuse to act because he is uncertain whether or not he has the authority to act.
Such conduct would warrant his removal from office. But removal would not be the cure
inasmuch as his successor would be in the same condition of doubt. If the judge refused to act
in every case where jurisdiction was in doubt, a court of justice would be a rank imposture.
The judge must act, and he must act not only in cases of doubt upon the merits where
jurisdiction is conceded, but he must also act in cases where jurisdiction itself over the whole
subject-matter is a serious and doubtful question. How can it be said, then, that on the one
case he is liable and in the other he is not? A judge of a court having jurisdiction and acting on
the merits of a question may, by a decision plainly and manifestly in violation of the law,
literally confiscate the property of a party litigant and thereby reduce him and his family to
beggary, himself escaping entirely unscathed; while the judge of another court who, by an
erroneous assumption of jurisdiction after a thorough and painstaking investigation of that
question, a question concerning which the best minds might reasonably differ, promotes
thereby nevertheless, be helplessly liable to respond fully in damages for the injuries caused
by his act, with all that such liability might to his fame, his fortune, and his official position.
It may be added, by way of repetition, that it signified nothing to say that, because a
court finds himself lawfully in the midst of a cause, he must be allowed to determine it in one
way or another, and that in doing so he should be protected. It is no more essential that
he continue it than that he begin it. A litigant who is not permitted to finish is in no worse
condition than one who was never allowed to begin. Moreover, if it is held that the law requires
a court to begin right, it must be equally true that a court having begun right, must continue
right. There should be no more license to continue wrong than to begin wrong. The prohibition
should be equal in both cases. While it is true that a court can not give itself jurisdiction by
determining that it has it, nevertheless, that idea in nowise militates against the position here
taken, as the argument which it presents is as applicable to a case involving excess of
jurisdiction as to one where there is want of jurisdiction.
 If we follow strictly the rule which holds civilly liable the court who, at the beginning
of the cause, errs as to his jurisdiction over the subject-matter, and wholly excuse him who
errs as to his jurisdiction over the subject-matter later in the cause, we have this result:
A matter is presented to a court for action. He has really no jurisdiction whatever
over it; but, after due deliberation decides that he has, and proceeds. He arrests A, tries and
convicts him of homicide, and sentences him to twenty years in prison. Question determined,
jurisdiction. Act. coram non judice and void. Result, judge liable.
A matter is presented to another court for action. He has jurisdiction in the first
instance. He proceeds. Later he arrives at a point in the case where he fails absolutely of
jurisdiction to proceed further with the cause. But, after due deliberation, he nevertheless
decides that he has jurisdiction and proceeds. He tries and convicts B of homicide and
sentences him to twenty years in prison. Question determined, jurisdiction. Act, coram non
judice and void. Result, judge not liable.
Why this difference in result? It is no answer to say that, in the second case, the
court, having jurisdiction, had, therefore, the right to determine any question that might arise
during the progress of the case, even if it be a question as to his jurisdiction to proceed
further; and in making such determination he would be protected; for, in the first case, the
fact that he is a court gives him this rights, as it places upon him the duty to determine
whether he has the authority to inaugurate the proceedings, and in the determination of the
jurisdictional right to begin is of exactly the same nature and quality as the determination of
the jurisdiction tocontinue. The resolution of the two questions involves exactly the same
mental processes, the use of exactly the same discretion, the adoption of precisely the same
methods, the exercise of identical functions; while the purpose animating the courts in their
decisions are absolutely the same in both cases, namely, the faithful and efficient discharge of
the duties and obligations of the office. The two questions themselves, as representing the two
legal conditions, are exactly the same inherently. The fact that one question is determined at
one stage of the cause, while the other is decided at another, is purely accidental and
incidental.
Let me give an example more concrete: Whether or not a Court of First Instance of
the Philippine Islands has jurisdiction over a given subject-matter depends upon whether or
not a certain law of Spanish origin in force prior to the American occupation survives the
change of sovereignty. If that law survived he has jurisdiction. If it did not, he is absolutely
devoid of jurisdiction. The determination of that question involves a careful investigation of the
fundamental law of the Islands as derived from American sources; an interpretation; the
construction of the order of the President to General Merritt and of the proclamation of the
latter to the Philippine people, both heretofore quoted, and last, and perhaps mot difficult of all,
the resolution of the question presented by that part of the above-mentioned order of the
President which provides that "the municipal laws of the conquered territory, such as affect
private rights a person and property, and provide for the punishment of crime, are considered
as continuing in force, so far as they are compatible with the new order of things." When is a
Spanish law "compatible with the new order or things" and when incompatible? Upon the
determination of that question depends absolutely the jurisdiction of the court. Was ever a
question more perfectly judicial? Could there possibly be a question in the resolution of which
the judicial function was more clearly exercised? Has there ever been, or will there ever be, a
situation in which a man could be more a judge than here? Yet we are asked to hold that the
Court of First Instance would not be protected in the determination of that question.
Moreover, this rule takes no cognizance whatever, as we have before noted, of the
nature of the questions to be solved by the two judges in question. It makes no difference
between cases where the question of jurisdiction is of great doubt and difficulty and those
where the lack is of jurisdiction and authority is so plain and clear that it ceases altogether to
be a question. For example, in the illustration given, wherein the Court of First Instance was
obliged to determine the existence of a Spanish law, there is presented a question of great
intricacy and extreme difficulty of determination. Yet the judge who decides that question, after
the most careful and painstaking investigation and study, and decides it wrongly, receives,
under the doctrine we are discussing, no more mercy than another judge who, during the
progress of the cause, orders the head of one of the parties stricken off by the sheriff.
Although the lack of jurisdictional authority or power to make such an order is so clear and so
plain that it can not be a question of any kind or from any point of view, and especially not one
requiring for its solution the exercise of the judicial functions; and although such an act so
transgresses every judicial precedent, so violates every principle of law, so outrages the
commonest sense of justice, and so debauches the functions and purposes of a court, that no
judge can be heard to say that he was exercising judicial functions in the performance of such
an act, nevertheless, that judge, so far as his civil responsibility is concerned, stands, under
the doctrine referred to, in exactly the same position as the judge who clearly and admittedly
exercised judicial functions in the determination of a question over which the best legal minds
have been found to differ.
Still worse. A judge who, even while acting in excess of his jurisdiction, corruptly
and criminally sells his judgment to whomsoever pays him highest, and thus debauches and
prostitutes the functions of his office before the world, would not be liable civilly to the person
injured; while another judge, learned in the law, unimpeachable in integrity, unquestioned in
honesty, but who made a mistake of judgment over the intricate and doubtful question of his
initial jurisdiction, would be ruined financially and his usefulness as a judge completely
destroyed. And all this because one judge errouneously decided the question of jurisdiction at
the beginning of the cause, while the other erroneously decided the same question later in the
case.
Under this doctrine I am anxious to know what reason would be given for holding
civilly liable a judge who, as a court, having jurisdiction of the cause and parties, should order
the head of one of the parties stricken off and that order should be obeyed. That he would be
so liable is certain. But what reason could be given for it under the doctrine that jurisdiction is
the touchstone of liability? He had jurisdiction of the cause, and, under the doctrine, had the
right to pass upon any question which he might regard as related to the case, and he could
not be questioned civilly for so passing his judgment even though it lead him wholly outside
and beyond his jurisdiction and induced him to perform acts completely illegal and void. It is
no answer to say that the act was wholly outside of his jurisdiction and power to perform and
was illegal and void, for, so was the act of the United States Circuit Court judge in Lange vs.
Benedict, supra; and yet he was held not to be civilly liable. The only difference between the
two cases, from the standpoint of the doctrine of jurisdiction, is in degree and not in kind. The
mere fact that he acted in excess of his jurisdiction is not sufficient to condemn under the
doctrine. Neither is it a reply to say that such a question could not possibly arise in the case,
nor that such an act was so gross and apparent a violation of the duties of the court and such
a palpable prostitution of his proper functions, that he would not be allowed to say that he
acted as a judge in the performance of such an act. These are not answers, they are
admissions; for they impliedly and necessarily base the liability of the judge not upon the
question of jurisdiction but upon the proposition that the question was one the determination of
which required the exercise of judicial functions. The essence of the whole matter is this: Was
the determination of the question whether he had the right to perform the act complained of
one which required the exercise of the judicial function? Whether or not he was, in the
resolution of the question, exercising judicial functions does not at all depend upon whether he
had jurisdiction of the subject-matter of the cause. As we have said, a court may exercise
judicial functions as perfectly and as fully in determining whether he has jurisdiction of the
subject-matter presented to him for action as he may in deciding any question in the case
when his jurisdiction of the subject-matter is conceded. A court always has power and
jurisdiction to determine whether it has jurisdiction.
We thus see the embarrassment which is necessarily present in attempting, under
the doctrine that jurisdiction determines liability, to hold a judge who has jurisdiction of the
cause civilly liable for performing an act outside of his jurisdiction no matter how far outside it
may be. It is as apparent, also, that all such embarrassment disappears when, instead of
making jurisdiction the test of liability, we make the exercise of judicial functions the real test.
I believe that it has been thoroughly established that the test of judicial liability is
not jurisdiction. I believe it has also been as thoroughly established that such liability depends
wholly upon the nature of the question which was being determined when the error
complained of was made by the court; that is, it must have been a question the determination
of which required the exercise of judicial functions. With that condition, jurisdiction has nothing
vital to do.
When, then, is a judge civilly liable for his illegal acts? When the question which he
wrongly determines is one in the solution of which he can not be said to use judicial attributes.
I again present the illustrations I have already given. During the course of a trial the judge
orders the head of one of the parties stricken off by the sheriff. As we have already said, such
an act so transgresses every judicial precedent, so violates every principle of law, so outrages
the commonest sense of justice, and so debauches the functions and purposes of a court, that
no judge can be heard to say that he was exercising judicial functions in its performance. His
lack of power is so clear that, whether he has such power, ceases to be a question. There are
certain limits beyond which a judge will not be permitted to say that he was a judge, or that he
was acting as a judge. On the other hand, the example given in which the Court of First
Instance was required to determine the question of the survival of the Spanish law in order to
reach a conclusion as to whether he had jurisdiction or not, clearly discloses a case where the
judicial attributes were exercised. That is a question over which courts in general may really
differ. Concerning it two opinions are allowable. In other words, there are two sides to the
question. If the question is one which a judge, qualified in the average way for the position
occupied by the offending judge or for a similar judicial position, would regard as a question,
then it is one whose determination requires the exercise of judicial functions. But if it is one so
clear that a judge, qualified as aforesaid, would not regard it as a question, then it is one
whose determination does not require the exercise of judicial functions. In the former case the
judge is not liable. In the latter, he is. To put it in another way: If the question is one which can
be regarded by a judge, qualified as above stated, as having two sides, then the judge is not
liable for an erroneous decision. But if it be one which can not be regarded by such judge as
having two sides, then the judge is liable for a wrong decision.
Although it is admitted, as I do admit, that the Governor-General had and has no
power or authority to expel domiciled aliens, it must, nevertheless, be freely conceded, and
this is the vital and conclusive point in this case, that from his point of view there are two sides
to that question. That such is the case is conclusively established by the fact that three judges
of this court have already decided, after mature deliberation, that he actually has such powers.
This being so, it becomes a real question, the determination of which requires the exercise of
judicial functions. In such determination he is protected even though he errs.
Whether or not a given question is such a one as I have above described, that is,
whether it is one which would be regarded by a judge, qualified in the average way for the
position occupied by the offending judge or a similar judicial position, as having two sides, is
always a question of law and not of fact. It is a condition established by the existing law. It is a
matter not susceptible of proof. The court is required to take judicial notice of the law of the
land. It can not be established by evidence. The condition, the state, of the law when the
offending act was committed is fixed. It can not be changed by evidence. When the act is
admitted, liability is a pure question of law. Even the motive which influenced or controlled the
judge in his decision can not be proved. It is immaterial under the doctrine of Bradley vs.
Fisher. He is not judged from his moral but from his legal relation to the question.
The foregoing is an explanation, if one were needed, of the expression in my
former opinion in this case, in which I made reference to the Governor-General acting "in
the honest belief" that he had the authority to perform the acts complained of. By such
expression I did not mean to call attention to the Governor-General subjectively. I did not
mean to bring in issue his state of mind, morally or ethically, at the time he acted, nor the
motive which impelled him. What was meant there is, Was the question which confronted him
for solution one over which men qualified for that or a similar station would really differ; one
which the average man fit for that position would regard as a real question? In other words, Is
it one which, from the viewpoint of a man ordinarily qualified for that position, has two sides?
"Honestly," as used, referred to the nature of the question rather than the state of mind or
motive of the Governor-General. The state of mind morally of a judge, the motives which
induce him to act, are of no consequence in determining his liability. In the case of Bradley vs.
Fisher, supra, cited in my former opinion as well as in this, the court says:
"Nor can this exemption of the judges from civil liability be
affected by the motives with which their judicial acts are performed. The
purity of their motives can not in this way be the subject of judicial inquiry.
This was adjudged in the case of Floyd and Barker, reported by Coke, in
1608 (12 Coke, 25), where it was laid down that the judges of the realm
could not be drawn in question for any supposed corruption impeaching the
verity of their records, except before the King himself, and it was observed
that if they were required to answer otherwise, it would 'tend to the scandal
and subversion of all justice, and those who are the most sincere would not
be free from continual calumniation's.'
"The truth of this latter observation is manifest to all persons
having much experience with judicial proceedings in the superior courts.
Controversies involving not merely great pecuniary interests, but the liberty
and character of the parties and, consequently, exciting the deepest feelings,
are being constantly determined in those courts, in which there is a great
conflict in the evidence and great doubt as to the law which should govern
their decision. It is this class of cases which imposes upon the judge the
severest labor, and often create in his mind a painful sense of responsibility.
Yet it is precisely in this class of cases that the losing party feels most keenly
the decision against him, and most readily accepts anything but the
soundness of the decision in explanation of the action of the judge. Just in
proportion to the strength of his convictions of the correctness of his own
view of the case is he apt to complain of the judgment against him, and from
complaints of the judgment to pass to the ascription of improper motives to
the judge. When the controversy involves questions affecting large amount
of property or relates to a matter of general public concern, or touches the
interests of numerous parties, the disappointment occasioned by an adverse
decision often finds vent in imputations of this character, and from the
imperfection of human nature this is hardly a subject of wonder. If civil
actions could be maintained in such cases against the judge, because the
losing party should see fit to allege in his complaint that the acts of the judge
were done with partiality, or maliciously, or corruptly, the protection essential
to judicial independence would be entirely swept away. Few persons
sufficiently irritated to institute an action against a judge for his judicial acts
would hesitate to ascribe any character to the acts which would be essential
to the maintenance of the action.
"If upon such allegations a judge could be compelled to answer
in a civil action for judicial acts, not only would his office be degraded and
his usefulness destroyed, but he would be subjected for his protection to the
necessity of preserving a complete record of all the evidence produced
before him in every litigated case, and of the authorities cited and arguments
presented, in order that he might be able to show to the judge before whom
he might be summoned by the losing party — and that judge perhaps one of
an inferior jurisdiction — that he had decided as he did with judicial integrity;
and the second judge would be subjected to a similar burden, as he in his
turn might also be held amenable by the losing party.
"Some just observations on this head by the late Chief Justice
Shaw will be found in Pratt vs. Gardner (2 Cush., 68), and the point here was
adjudged in the recent case of Fray vs. Blackburn (3 Best & S., 576) by the
Queen's Bench of England. One of the judges of that bench was sued for a
judicial act, and on demurrer one of the objections taken to the declaration
was that it was bad in not alleging malice. Judgment on the demurrer having
passed for the defendant, the plaintiff applied for leave to amend his
declaration by introducing an allegation of malice and corruption; but Mr.
Justice Compton replied: 'It is a principle of our law that no action will lie
against a judge of one of the superior courts for a judicial act, though it be
alleged to have been done maliciously and corruptly; therefore the proposed
allegation would not make the declaration good. The public are deeply
interested in this rule, which, indeed, exists for their benefit, and was
established in order to secure the independence of the judges, and prevent
them being harassed by vexatious actions;' and the leave was refused.
(Scott vs. Stansfield, L. R., 3 Exch., 220.)
"In this country the judges of the superior courts of record are only
responsible to the people, or the authorities constituted by the people, from
whom they receive their commissions, for the manner in which they
discharge the great trusts of their office. If in the exercise of the powers with
which they are clothed as ministers of justice they act with partiality, or
maliciously, or corruptly, or arbitrarily, or oppressively, they may be called to
account by an impeachment and suspended or removed from office. In some
States they may be thus suspended or removed without impeachment by a
vote of the two houses of the legislature.
"In the case of Randall vs. Brigham (7 Wall., 523; 74 U. S., 285),
decided by this court at the December term of 1868, we had occasion to
consider at some length the liability of judicial officers to answer in a civil
action for their judicial acts. In that case the plaintiff had been removed by
the defendant, who was one of the justices of the Superior Court of
Massachusetts, from the bar of that State, and the action was brought for
such removal, which was alleged in the declaration to have been made
without lawful authority and wantonly, arbitrarily, and oppressively. In
considering the questions presented, the court observed that it was a
general principle, applicable to all judicial officers, that they were not liable
to a civil action for any judicial act done by them within their jurisdiction; that
with reference to judges of limited and inferior authority it had been held that
they were protected only when they acted within their jurisdiction; that if this
were the case with respect to them, no such limitation existed with respect
to judges of superior or general authority; that they were not liable in civil
actions for their judicial acts, even when such acts were in excess of their
jurisdiction, 'unless, perhaps, when the acts in excess of jurisdiction are done
maliciously or corruptly.' The qualifying words were inserted upon the
suggestion that the previous language laid down the doctrine of judicial
exemption from liability to civil actions in terms broader than was necessary
for the case under consideration, and that if the language remained
unqualified it would require an explanation of some apparently conflicting
adjudications found in the reports. They were not intended as an expression
of opinion that in the cases supposed such liability would exist, but to avoid
the expression of a contrary doctrine.
"In the present case we have looked into the authorities and are
clear, from them, as well as from the principle on which any exemption is
maintained, that the qualifying words used were not necessary to a correct
statement of the law, and that judges of courts of superior or general
jurisdiction are not liable to civil actions for their judicial acts; even when such
acts are in excess of their jurisdiction, and are alleged to have been done
maliciously or corruptly."
Applying to the case at bar the analogy to which we have so far consistently
adhered, it is necessary to conclude, from the principles asserted in the quotation, that the
motives with which the illegal acts of the Governor-General were performed can not affect in
any way his responsibility. For the same reason, and for the reasons stated heretofore, the
liability of the Governor-General is a question of law and not of fact. It depends entirely on the
state of the law, of that the court takes judicial notice without proof.
The foregoing discussion is not a criticism of the case of Bradley vs. Fisher, so
many times referred to. On the contrary, I am confident that this case, when properly viewed,
is, as I have heretofore stated, fully in accord with the considerations and conclusions
indulged herein, and may reasonably, indeed, if the dictum therein contained have any force
whatever, must necessarily be taken as an authority for them. In that case the name of the
plaintiff was stricken from the roll of attorneys practicing in the criminal branch of the supreme
court of the District of Columbia by the judge thereof, the defendant in the action. The
following was the order entered by the court:
"On the 2d day of July last, during the progress of the trial of John
H. Surat for the murder of Abraham Lincoln, immediately after the court had
taken a recess until the following morning, as the presiding justice was
descending from the bench, Joseph H. Bradley, esq., accosted him in a rude
and insulting manner, charging the judge with having offered him (Mr.
Bradley) a series of insults from the bench from the commencement of the
trial. The judge disclaimed any intention of passing any insult whatever, and
assured Mr. Bradley that he entertained for him no other feelings than those
of respect. Mr. Bradley, so far from accepting this explanation or disclaimer,
threatened the judge with personal chastisement. No court can administer
justice or live if its judges are to be threatened with personal chastisement
on all occasions whenever the irascibility of counsel may be excited by
 imaginary insult. The offense of Mr. Bradley is one which even his years will
not palliate. It can not be overlooked or go unpunished.
"It is, therefore, ordered that his name be stricken from the roll of
attorneys practicing in this court."
The suit was founded on this order, the plaintiff alleging that the defendant "falsely,
fraudulently, corruptly, and maliciously intended thereby to give color of jurisdiction" for making
the order referred to, and that he acted unlawfully, wrongfully, unjustly, and oppressively in
making such order. The action was one against the judge for damages occasioned by such
act. In deciding the case the court said:
"In other words, it sets up that the order for the entry of which the
suit is brought was a judicial act, done by the defendant as the presiding
justice of a court of general criminal jurisdiction. If such were the character
of the act, and the jurisdiction of the court, the defendant can not be
subjected to responsibility for it in a civil action, however erroneous the act
may have been, and however injurious in its consequences it may have
proved to the plaintiff. For it is a general principle of the highest importance
to the proper administration of justice that a judicial officer, in exercising the
authority vested in him, shall be free to act upon his own convictions, without
apprehension of personal consequences to himself. Liability to answer to
every one who might feel himself aggrieved by the action of the judge would
be inconsistent with the possession of this freedom, and would destroy that
independence without which no judiciary can be either respectable or useful.
As observed by a distinguished English judge, it would establish the
weakness of judicial authority in a degrading responsibility.
xxx xxx xxx
"The criminal court of the District, as a court of general criminal
jurisdiction, possessed the power to strike the name of the plaintiff from its
rolls as a practicing attorney. This power of removal from the bar is
possessed by all courts which have authority to admit attorneys to practice.
xxx xxx xxx
"The criminal court of the District erred in not citing the plaintiff,
before making the order striking his name from the roll of its attorneys, to
show cause why such order should not be made for the offensive language
and conduct stated, and affording him opportunity for explanation, or
defense, or apology. But this erroneous manner in which its jurisdiction was
exercised, however it may have affected the validity of the act, did not make
the act any less a judicial act; nor did it render the defendant liable to answer
in damages for it at the suit of the plaintiff, as though the court had proceeded
without having any jurisdiction whatever over its attorneys.
xxx xxx xxx
"A distinction must be here observed between excess of
jurisdiction and the clear absence of all jurisdiction over the subject-matter.
Where there is clearly no jurisdiction over the subject-matter any authority
exercised is a usurped authority, and for the exercise of such authority, when
the want of jurisdiction is known to the judge, no excuse is permissible. But
where jurisdiction over the subject-matter is invested by law in the judge, or
in the court which he holds, the manner and extent in which the jurisdiction
shall be exercised are generally as much questions for his determination as
any other questions involved in the case, although upon the correctness of
his determination in these particulars the validity of his judgments may
depend. Thus, if a probate court, invested only with authority over wills and
the settlement of estates of deceased persons, should proceed to try parties
for public offenses, jurisdiction over the subject of offenses being entirely
wanting in the court, and this being necessarily known to its judge, his
commission would afford no protection to him in the exercise of the usurped
authority. But if, on the other hand, a judge of a criminal court, invested with
general criminal jurisdiction over offenses committed within a certain district,
should hold a particular act to be a public offense, which is not by the law
made an offense, and proceed to the arrest and trial of a party charged with
such act, or should sentence a party convicted to a greater punishment than
that authorized by the law upon its proper construction, no personal liability
to civil action for such acts would attach to the judge, although those acts
would be in excess of his jurisdiction or of the jurisdiction of the court held
by him, for these are particulars for his judicial consideration, whenever his
general jurisdiction over the subject-matter is invoked. Indeed some of the
most difficult and embarrassing questions which a judicial officer is called
upon to consider and determine relate to his jurisdiction, or that of the court
held by him, or the manner in which the jurisdiction shall be exercised. And
the same principle of exemption from liability which obtains for errors
committed in the ordinary prosecution of a suit where there is jurisdiction of
both subject and person applies in cases of this kind, and for the same
reasons."
It must be noted, in the first place, that, inasmuch as the court, in that case, was
found to have had full jurisdiction of the person of the plaintiff and the subject-matter before
him, the court erring simply in his method of procedure, the question of the civil liability of a
judge for acts performed with complete lack of jurisdiction did not arise.
In the second place, especial and particular attention is called to certain
expressions in the decision which occur in that portion relative to the liability of a judge acting
in complete absence of jurisdiction: "Where there is clearly no jurisdiction over the subject-
matter any authority is a usurped authority, and for the exercise of such authority, when the
want of jurisdiction is known to the judge, no excuse is permissible." Again: "Thus if a probate
court, invested only with authority over wills and the settlement of estates of deceased
persons, should try parties for public offenses, jurisdiction over the subject of offenses being
entirely wanting in the court,and this being necessarily known to its judge, his commission
would afford no protection to him in the exercise of the usurped authority."
Those portions of the sentence quoted which I have italicized contain the essence
of the whole matter of judicial liability where there is a lack or failure of jurisdiction. I am of the
opinion that those expressions indicate necessarily and decisively that the principle which I
have herein laid down as the one logically and inevitably governing judicial liability is the true
one and the only one whose results are not absurdities in many cases. Otherwise those
expressions are wholly meaningless and the suggestions they contain valueless. If jurisdiction
is the real test of liability, if a judge acting wholly and completely without jurisdiction is
necessarily liable, as contend text writers and courts generally, what difference does it make
whether the want of jurisdiction "clearly" appears or not. If entire absence of jurisdiction is
decisive, what does it signify whether or not "the want of jurisdiction is known to the judge." If
the crucial test is jurisdiction, what means the phrase "and this (entire want of
jurisdiction) being necessarily known to its judge?" If these expressions mean nothing, then
there is an end of the matter so far as the case we are discussing is concerned. But if they
mean anything at all commensurate with the signification which would ordinarily be given to
the words which compose them, then they destroy utterly the doctrine that jurisdiction is the
test of judicial liability. The word "clearly" refers either to the judge himself or to some one or
something apart from him. If to the judge, then the want of jurisdiction must be clear to him
before he can be liable. But if his want of jurisdiction is clear to him and he still goes forward
with the cause, he must be actuated by a motive other than his belief that he is within his
jurisdiction. If, therefore, "clearly" refers to the judge himself, to his subjective condition, then it
can have no relation or materiality except to disclose the motive which moved him. But motive
has been expressly held by this very case to be wholly immaterial in determining a judge's civil
liability. Motive is merely a state of mind. If motive can have no influence on the matter, then it
is of no consequence whatever what the state of mind may be. This is in perfect accord with
the universal doctrine that one man's rights can not be made to depend on another man's
mind. If A illegally injures B, B's right of action can not be dependent on A's state of mind
when he caused the injury. Such state of mind might have some influence on the amount of
damages or the kind of action to be brought, but never on the right of action. So the right of
action against a judge never can be made to depend on the state of mind of the judge who
causes the injury, but only and solely upon the nature of the question determined. Rights are
children of the law, not of man's fancy.
If, however, the word "clearly" refers to some one or something apart from the
judge himself, then the expression in which it occurs has meaning and significance. If the want
of jurisdiction is so "clear," not to that judge in particular, but to a judge having the average
qualifications for the position occupied by the offending judge, or a similar judicial position, that
whether or not there is jurisdiction is not a question at all, then we can understand what was
intended by the use of the word "clearly." The whole doctrine that the civil liability of a judge
depends upon jurisdiction alone, as stated by text writers and enforced by most courts, is
utterly at variance with the connection that the state of mind of the offending judge should
have any influence on his liability. Moreover, the very case I am discussing holds clearly that
public policy requires that the motives of a judge in deciding a cause, his state of mind
accompanying or even causing his decision, shall have no influence in determining his liability.
We find in that case the following:
"Yet it is precisely in this class of cases that the losing party feels
most keenly the decision against him, and most readily accepts anything but
the soundness of the decision in explanation of the action of the judge. Just
in proportion to the strength of his conviction of the correctness of his own
view of the case is he apt to complain of the judgment against him, and from
complaints of the judgment to pass to the ascription of improper motives to
the judge. When the controversy involves questions affecting large amounts
or property or relates to a matter of general public concern, or touches the
interests of numerous parties, the disappointment occasioned by an adverse
decision often finds vent in imputations of this character, and from the
imperfections of human nature this is hardly a subject of wonder. If civil
actions could be maintained in such cases against the judge, because the
losing party should see fit to allege in his complaint that the acts of the judge
were done with partiality, or maliciously, or corruptly, the protection essential
to judicial independence would be entirely swept away. Few persons
sufficiently irritated to institute an action against a judge for his judicial acts
would hesitate to ascribe any character to the acts which would be essential
to the maintenance of the action."
Motive, as here used, can not be restricted to a state of mind morally wrong. It
includes also a state of mind legally wrong. A judge, knowing full well that he is absolutely
without jurisdiction, who, in spite of that knowledge, proceeds with the cause, condemning one
of the parties in complete violation of the law, may be impelled thus to violate the law by an
honest belief that he is thereby doing justice between the parties; but this motives are
nevertheless tainted with illegality, and, even though they are not morally wrong, they fall
within the definition of "motives" as that word is used in the decision I am discussing. But even
though I be wrong in that contention, it nevertheless is certain that if a corrupt motive can not
be influential in determining the liability of a judge, one not corrupt can not be.
It, therefore, seems to me clear that the word "clearly" as used in the case under
discussion does not refer to the state of mind of the offending judge, but rather to the nature of
the question which he determines; not to the way the judge himself views the question, but to
the way it would be viewed by the standard judge, the average judge, as I have heretofore
stated.
What I have said of the word "clearly," as it appears in the case under discussion,
is equally applicable to the other expression quoted therefrom. The phrase "when the want of
jurisdiction is known to the judge" presents precisely the same question. As I have said, the
very case in which that expression occurs holds unequivocally that the motives which move
the judge to action are not permitted to weigh for or against him, even though they are corrupt
and immoral. It can not be possible, then, that any other motive, especially an honest one, can
be permitted to affect his case. The conclusion is, therefore, unavoidable that the phrase
"when the want of jurisdiction is known to the judge" does not refer to the actual state of mind
of the judge but to the state of mind which he ought to be in and which he would have been in
if he had taken into consideration properly the nature of the question before him. In other
words, he will be deemed to have been in the same state of mind as the ideal, the standard
judge of whom we have spoken would have been had he had the same question before him.
We have here somewhat the idea which is predominant in the theory of negligence embodied
in the question, "Did he use the care which an ordinarily careful and prudent man would have
used under the same circumstances?" This means simply that everything depends, in the last
analysis, on the nature of the question with which the judge was dealing when he committed
the error made the basis of the action against him.
Lastly, as to the phrase "and this [the want of jurisdiction] being necessarily known
to its judge."
The word "necessarily" seems to me to be absolutely conclusive as to the intention
of the Supreme Court of the United States in the case under discussion relative to the doctrine
of judicial liability in cases involving a failure or want of jurisdiction. This expression, it will be
remembered, was used in connection with the illustration of a probate court assuming criminal
jurisdiction. Why, in such illustration, should the want of jurisdiction be "necessarily" known to
the judge? No reason can be given except that it was a perfectly plain case, and, in
consequence, he was bound to know it, whether he actually did or not. In other words, the
question which he was called upon to decide was so plain and so clear that the standard
judge would not have regarded it as a question at all; i. e., there was really only one side to it
— it could be decided in only one way. Therefore, the judge was bound to know it; it
was necessarily known to him. The nature of the question was such that he was estopped
from denying knowledge. Thus are we brought back again to the proposition I have so often
asserted, that the liability of the judge depends wholly upon the nature of the question in the
determination of which the error was made.
 It appears to me to be evident, therefore, that the case of Bradley vs. Fisher is an
authority, so far as dictum can be such, in support of the doctrine I am advocating, both
affirmatively and negatively. Affirmatively, because it asserts the doctrine that the nature of the
question controls. Negatively, because it also asserts that the motives which induced the
judge to the error which is the basis of his liability are wholly immaterial in establishing that
liability. This necessarily means, as we have already seen, that the state of mind of the judge
by which the error was induced, of whatever kind it may be, good, bad, or indifferent, is
entirely without significance as an element of his liability. This is all I set out to establish. (See
Bishop Non-Contract Law, par. 783; Root vs. Ross, 72 Northwestern, 1022; Grove vs. Van
Duyn, 15 Vroom, 654.) Section 9 of the Code of Civil Procedure relating to the liability of
judges is simply declaratory of the law as heretofore set forth.
The discussion up to this point has proceeded upon the theory that the Governor-
General acted wholly without power, authority, or jurisdiction. I here note by way of suggestion
merely that it should be remembered that the Governor-General, in performing the acts
complained of, was operating in a field distinctively his own, namely, that of the execution of
the law. Of that branch of the government he is the head. Over that field he has general
authority and jurisdiction. Taking for the moment the position of those who maintain that there
is a difference between excess of jurisdiction and an entire failure of jurisdiction, may not his
act of expulsion have been in excess of jurisdiction rather than in complete failure thereof? I
do not now stop to argue this question, inasmuch as I have already presented the matter fully
from the other point of view.
I have treated thus at length the liability of judges for analogical purposes, founding
myself not only upon the reason and principle involved, but also upon the case of Spalding vs.
Vilas (161 U.S., 483), in which the opinion discussed a length the civil liability of judges, using
the principles there applied as a foundation for the determination of the liability of the
defendant, who was postmaster general, and who had been sued for damages alleged to
have been caused by certain acts performed by him in the execution of what he believed to be
the duties of his office. This is precisely what I have in the case at bar.
So far I have discussed the liability of the Governor-General for the acts
complained of, viewing the acts as springing form the determination of questions judicial in
their nature. I now propose to treat the question at bar as arising from determinations made
and acts performed by the Governor-General in discharging the duties laid upon him as Chief
Executive of the Government.
The immunity of judges from personal liability for damages resulting from their
wrongful acts while in the discharge of the duties of the office rests wholly in public policy. The
reasons for such immunity are nowhere better stated than on Mr. Cooley's work on Torts. He
says:
"1. The necessary result of the liability would be to occupy the
judge's time and mind with the defense of his own interest, when he should
be giving them up wholly to his public duties thereby defeating, to some
extent, the very purpose for which his office was created.
"2. The effect of putting the judge on his defense as a wrongdoer
necessarily is to lower the estimation in which his office is held by the public,
and any adjudication against him lessens the weight of his subsequent
decisions. Those of itself is a serious evil, affecting the whole community; for
the confidence and respect of the people for the government will always
reposse most securely on the judicial authority when it is esteemed, and
must always be unstable and unreliable when this not respected. If the
judiciary is unjustly assailed in the public press, the wise judge refuses to put
himself in position of defendant by responding, but he leaves the tempest to
rage until an awakened public sentiment silences his detractors. But if he is
forced upon his defense, as was well said in an early case, it 'would tend to
the scandal and subversion of all justice, and those who are most sincere
would not be free from continual calumniation's.'
"3. The civil responsibility of the judge would often be an incentive
to dishonest instead of honest judgments, and would invite him to consult
public opinion and public prejudices, when he ought to be wholly above and
uninfluenced by them. As every suit against him would be to some extent an
appeal to popular feeling, a judge, caring specially for his own protection,
rather than for the cause of justice, could not well resist a leaning adverse to
the parties against whom the popular passion or prejudice for the time being
was running, and he would thus become a persecutor in the cases where he
ought to be protector, and might count with confidence he ought to be
punished. Of what avail, for example, could the civil liability of the judge have
been to the victims of the brutality of Jeffreys if, while he was at the height of
his power and influence and was wreaking his brutal passions upon them
amidst the applause of crowed court rooms, these victims had demanded
redress against him at the hands of any other court and jury of the realm?
"4. Such civil responsibility would constitute a serious obstruction
to justice, in that it would render essential a large increase in the judicial
force, mot only as it would multiply litigation, but as it would open each case
to endless controversy. This itself would be an incalcuble evil. The interest
of the public in general rules and in settled order is vastly greater than in any
results which only rather than for the individual; and it s more important that
their action shall tend to the peace and quiet of society that that, at the
expense of order, and after many suits, they shall finally punish an officer
with damages for his misconduct. And it is to borne in mind that if one judge
can be tried for his judgment, the one who presides on the trial may also be
tried for his, and thus the process may go on until it becomes intolerable.
"5. But where the judge is really deserving of condemnation a
prosecution at the instance of the State is a much more effectual method of
bringing him to account than a private suit. A want of integrity, a failure to
apply his judgment to the case before him, a reckless or malicious disposition
to delay or defeat justice may exist and be perfectly capable of being shown,
and yet not be made so apparent by the facts of any particular case that in
a trial confined to those facts he would be condemned. It may require the
facts of many cases to establish the fault; it may be necessary to show the
official action for years. Where an officer is impeached, the whole official
career is or may be gone into; in that case one delinquency after another is
perhaps shown — each tends to characterize the other, and the whole will
enable the triers to form a just opinion of the official integrity. But in a private
suit the party would be confined to the facts of his own case. It is against
inflexible rules that one man should be allowed to base his recovery for his
own benefit on a wrong first wrong done to another; and could it be permitted,
the person first wronged, and whose right to redress would be as complete
as any, would lose this advantage by the very fact that he stood first in the
line of injured persons.
 "Whenever, therefore, the State confers judicial powers upon an
individual, it confers them with full immunity from private suits. In effect, the
State says to the officer that these duties are confided to his judgment; that
he is to exercise his judgment fully, freely, and without favor, and he may
exercise it without fear; that the duties concern individuals, but they concern
more especially the welfare of the State and the peace and happiness of
society; that if he shall fail in the faithful discharge of them he shall be called
to account as a criminal; but that in order that he may not be annoyed,
disturbed, and impeded in the performance of these high functions, a
dissatisfied individual shall not be suffered to call in question his official
action in a suit for damages. This is what the State, speaking by the month
of the common law, says to the judicial officer." (Cooley on Torts, 2d ed., pp.
475-478.) The following cases are also in point: Bradley vs. Fisher (13 Wall.,
335), Spalding vs. Vilas (161 U. S., 483), Pratt vs. Gardner (2 Cush., 63),
Yates vs. Lansing (5 Johns., 282, 291), Fray vs. Blackburn (3 B. & S., 576),
Scott vs. Stansfield (L. R., 3 Exch., 220).
It needs no use of the imagination to permit the assertion that the execution of the
law is a matter fully as important as the creation of determination of the law. One branch of the
government is, largely speaking, as necessary and important as the other. The whole system
of representative government is founded in that proposition. The three departments are not
only coordinate; they are co-equal; they are coimportant. Whatever affects adversely the
efficiency of one affects adversely the efficiency of all. One is quite useless without the other.
The legislature is supreme than a king in the making of laws, but if they remain unexecuted
they are but dry thunder that rolls and growls along the sky but disappoints the husband man
in a thousand thirsty fields. The judiciary is an invincible and irresistible giant in promulgating
its decrees, but a day-old infant in their execution.
Whatever impedes or prevents the free and unconstrained activity of a
governmental department, within its proper limits, tends to evil results. The civil responsibility
of the chief executive would produce in him an inevitable tendency, insidious in character,
constant in pressure, certain in results, to protect himself by following lines of least resistance
and to temper the force of his executive arm in places and upon occasions where there was
strong opposition, either by powerful and influential persons or by great federated interests,
and where public prejudice was intense, active, and threatening. Personal interest is a force
which in the long run is apt to drive as it will. Reputation, pride, riches, family, home, all
endangered in many respects by personal responsibility, are influences which grip and cling
with the of steel and exert a power upon men almost incalculable in its extent, almost certain
in its results. To allow these well-nigh irresistible forces to exercise to the full their effects upon
the coordinate branches of the government, through men who, for the moment, are, in a
sense, the state, is to drive a blow at the very vitals of impartial government.
Anyone may bring an action. It needs no merits, no real grounds, no just cause, no
expectation of winning, to commence suit. Any person who feels himself aggrieved by the
action of the chief executive, whether he have the slightest grounds therefor or not,
may begin suit. Or, not particularly desiring to bring action upon his own initiative, he may be
induced thereto by any evil-disposed person, any political rival, party antagonist, or personal
enemy of the chief executive, or by any person desiring for any reason to see his
administration hampered and brought into contempt by public display of the alleged
inefficiency of the chief functionary. For the purposes in view, it is almost immaterial whether
or not the action succeeds. Substantially the same results are attained by commencing the
action and carrying it haltingly to its final determination. A person who brings actions for the
reasons mentioned, or his inducers, will always be fertile and conscienceless in the method of
conducting it. Every means will be employed to make it sensational. Every effort will be used
to bring the salient features of the plaintiff's claim before the public. Opposition papers will
deem it strategy to lend their ready columns to everything that reflects adversely on the
defendant. Startling headlines will appear in every issue inviting all people to read the charges
against their chief executive. Occasions for delay will be found or made. The case will drag
along through months of calumny, vituperation, and sensation until the people, nauseated and
weary of the noise and spectacle, cry for riddance. This is precisely the result desired by the
plaintiff. The matter can be stopped and quieted only by the removal of the offending official.
This would usually follow in one way or another.
Moreover, the bringing of an action against him because of his act in relation to a
given matter would naturally prevent his talking further or other steps against other persons
similarly circumstance until the final determination of the pending action. Respect for law and
the judiciary, as well as his own protection, would probably require this. No words are
necessary to indicate the intolerable condition thus resulting from general civil responsibility.
Action upon important matters of state delayed; the time and substance of the chief executive
spent in wrangling litigation; disrespect engendered for the person of one of highest officials of
the State and for the office he occupies; a tendency to unrest and disorder; resulting, in a way,
in a distrust as to the integrity of government itself.
Although the three departments of the government coordinate and of equal
importance in the administration of government affairs, nevertheless, it is generally recognized
that, in many ways, and at least popularly, the chief executive is the first man in the state. He
is regarded by the public generally as the official who most nearly represents the people, who
most perfectly epitomizes the government and the state. An assault upon him is, popularly
speaking at least, an assault upon the people. An offense against him in an offense against
the state. Generally speaking, the government is good or bad as he is good or bad. To
degrade and humiliate him is to degrade and humiliate the government. To put him on trial as
wrongdoer is to put on trial government itself. To bring him publicly to the bar is to breed in the
public mind an unwholesome disrespect not only for his person but for his office as well; while
a decision against him is, popularly speaking at least, not only a license to disregard his
subsequent acts as unworthy of consideration, but also a partial demonstration of the
inefficiency of government itself. As the state may not be held liable, and by such process its
sovereignty weakened, without, weakened, without express provision of law, so the person
most perfectly its incarnation should not be subjected civilly to personal liability for damages
resulting from the performance of official acts except of law equally express.
While the three coordinate governmental departments are mutually dependent,
each being unable to perform its functions without the other, the are, nevertheless,
paradoxical as it may see, wholly independent of each other, except for what is known as the
checks and balances of government. That is to say, one department may not control or
interfere in any way with another in the exercise of its functions. This, of course, is
fundamental. The legislature may neither dictate the courts what judgments they shall render,
nor modify, alter or set aside such judgments after they have been promulgated. This
legislature can not be permitted to override executive action nor interfere with the performance
of those duties laid by the constitution upon the chief executive. In the same way, the courts
have no power to control or interfere in any way with the legislature in the making of laws or in
taking or refraining from taking any action whatever, however clear may be its constitutional
duty to take or not to take such action. The legislature may refuse to pass laws which are
absolutely necessary for the preservation of society, thus clearly and openly violating and
disregarding the trust reposed in it, and still neither the judicial nor the executive branch can
interfere. The courts may openly and flagrantly violate their duty, render the most partial,
unjust illegal, and even corrupt judgments, thereby openly prostituting their proper functions,
yet neither the legislature nor the executive deapartment can interfere.
Moreover, except as hereinbefore indicated, neither the members of the legislature
nor of the judiciary are subject to personal liability for damages either by their failure to
perform their duties for their open defiance of the plain command of the constitution to perform
them. The power to interfere is the power to control.
The power to control is the power to abrogate. Upon what reasons, the, may we
base the right of the courts to interfere with the executive branch of the government by taking
cognizance of a personal action against the chief executive for damages resulting from an
official act; for, to take jurisdiction of such an action is one of the surest methods of controlling
his action. We have already seen the dangers which lurk in the unhampered privilege of
personal suit against the chief executive from the viewpoint of the effects which it would have
on him personally and, therefore, on the general enforcement of the law. Another question
closely akin to this is that of the effect on the independence of that branch of the government.
In that argument we touched the results of such responsibility from the viewpoint of the
influence wielded by the person who complained by suit against the act of the chief executive.
Here we refer to it from the standpoint of the force, the power, the instrumentality by which the
complaint is made effective. Every argument advanced against the civil responsibility of the
chief executive founded in the baneful results to the public welfare which such responsibility
would inevitably carry, is applicable to the proposition that the court may take cognizance of
personal actions against him for damages resulting from his official acts. If the courts may
require the chief executive to pay a sum of money every time they believe he has committed
an error in the discharge of his official duty which prejudices any citizen, they hold such a grip
upon the vitals of the executive branch of the government that they may swerve it from the
even tenor of its course or thwart altogether the purpose of its creation. If such responsibility
would prove harmful by reason of the influence thus given to persons or interests involved in
the execution of the law, how much more disastrous would be the results of such responsibility
which would be the results of such responsibility which would normally flow from the power
which the courts might wield, that power which alone makes effective the influence of the
persons or interests referred to, not only determining their remedy and adjudicating their
rights, but also fixing the amount of damages which the infringement of those rights has
occasioned. That the courts may declare a law passed by the legislature unconstitutional and
void, or an act of the executive unauthorized and illegal; or that the legislature may curtail
within limits the jurisdiction and power of the courts, or restrict, in a measure, the scope of
executive action; or that the executive may, by his veto, render null and ineffective the acts of
the legislature and thus effectually thwart the purposes of the majority, is no reply to the
argument presented. These are merely the checks and balances made by the people through
the constitution inherent in the form of government for its preservation as an effective
institution. Without them the government would collapse like a house of cards. In spite of
these checks and balances, if not by reason of them, the fundamental departments of the
government are independent of each other in the truest sense of the word. The quality of
government consists in their remaining so.
It must not be forgotten that there is a great difference, intrinsically and in result,
between the power to declare the executed acts of the chief executive illegal and void, and the
power to hold him personally responsible in damages resulting from such acts. In the one
case the results are, in a real sense, entirely impersonal. No evil to him directly flows from
such acts. He is secure in his person and estate. In the other, he is directly involved personally
in a high and effective responsibility. His person and estate are alike in danger. In the one
case he acts freely and fearlessly without fear of consequences. In the other he proceeds with
fear and trembling, not knowing, and being wholly unable to know, when he will be called upon
to pay heavy damages to some person whom he has unconsciously injured.
The principle of nonliability, as herein enunciated, does not mean that the judiciary
has no authority to touch the acts of the Governor-General; that he may, under cover of his
office, do what he will, unimpeded and unrestrained. Such a construction would mean that
tyranny, under the guise of the execution of the law, could walk defiantly abroad, destroying
rights of person and of property, wholly free from interference of courts or legislatures. This
does not mean, either, that a person injured by the executive authority by an act unjustifiable
under the law has no remedy, but must submit in silence. On the contrary, it means, simply,
that the Governor-General, like the judges of the courts and the members of the Legislature,
may not be personally mulcted in civil damages for the consequences of an act executed in
the performance of his official duties. The judiciary has full power to, and will, when the matter
is properly presented to it and the occasion justly warrants it, declare an act of the Governor-
General illegal and void and place as nearly as possible in status quo any person who has
been deprived of his liberty or his property by such act. This remedy is assured to every
person, however humble or of whatever country, when his personal or property rights have
been invaded, even by the highest authority of the state. The thing which the judiciary can not
do is to mulct the Governor-General personally in damages which result from the performance
of his official duty, any more than it can a member of the Philippine Commission or the
Philippine Assembly. Public policy forbids it.
Neither does this principle of nonliability mean that the chief executive may not be
personally sued at all in relation to acts which he claims to perform as such official. On the
contrary, it clearly appears from the discussion heretofore had, particularly that portion which
touched the liability of judges and drew an analogy between such liability and that of the
Governor-General, that the latter is liable when he acts in a case so plainly outside of his
power and authority that he can not be said to have exercised discretion in determining
whether or not he had the right to act. What is held here is that he will be protected from
personal liability for damages not only when he acts within his authority, but also when he is
without authority, provided he actually used discretion and judgment, that is, the judicial
faculty, in determining whether he had authority to act or not. In other words, he is entitled to
protection in determining the question of his authority. If he decide wrongly, he is still protected
provided the question of his authority was one over which two men, reasonably qualified for
that position, might honestly differ; but he is not protected if the lack of authority to act is so
plain that two such men could not honestly differ over its determination. In such case, he acts,
not as Governor-General, but as a private individual, and, as such, must answer for the
consequences of his act.
The attorneys for the defendant in the action before us earnestly contend that even
though the Governor-General is not liable, his agents, Harding and Trowbridge, are. In support
of that contention they cite numerous authorities. One of those is Little vs. Barreme (2 Cranch,
170). This was a case in which the commander of a ship of war of the United States had
obeyed certain instructions emanating from the President of the United States which were not
strictly warranted by the law under which said instructions were not strictly warranted by the
law under which said instructions were given; and had seized a ship not subject to seizure
under the law. The attorneys for the defendant cite that portion of the opinion of Mr. Chief
Justice Marshall in that case which reads as follows:
"These orders given by the executive under the construction of
the Act of Congress made by the department to which its execution was
assigned, enjoined the seizure of American vessels sailing from a French
 port. Is the officer who obeys them liable for damages sustained by this
misconstructions of Act, or will his orders excuse him? If his instructions
afford him no protection, then the law must take its course, and he must pay
such damages as are legally awarded against him; if they excuse an act not
otherwise excusable; it would then be necessary to inquire whether this is a
case in which the probable cause which existed to induce a suspicion that
the vessel was American, would excuse in fact to be neutral.
"I confess the first bias of my mind was very strong in favor of the
opinion that though the instructions of the executive could not give a right,
they might yet excuse from damages. I was much inclined to think that a
distinction ought to be taken between acts of civil and those of military
officers; and between proceedings within the body of the country and those
on the high seas. That implicit evidence which military men usually pay to
the orders of their superiors, which indeed is indispensably necessary to
every military system, appeared to me strongly to imply the principle that
those orders, if not to perform a prohibited act, ought to justify the person
whose general duty it is to obey them, and who is placed by the laws of his
country in a situation which in general requires that he should obey them. I
was strongly inclined to think that where, in consequence of orders form the
legitimate authority, a vessel is seized with pure intention, the claim of the
injured party for damages would be against that government from which the
orders proceeded, and would be a proper subject for negotiation. But I have
been convinced that I was mistaken, and I have receded from this first
opinion. I acquiesce in that of my brethren, which is, that the instructions can
not change the nature of the transaction, or legalize an act which, without
those instructions, would have been a plain trespass."
The case cited is distinguishable from the case at bar in that in that case the duty to
exercise judgment as to what vessels should be seized was placed, by express provisions of
the law, upon the commander of the American warship. No duty whatever was placed upon
the President of the United States. Under the law he might, if he chose, give instructions to
commanders of American war vessels to subject to examination any ship or vessel of the
United States on the high seas which there might be reason to suspect was engaged in
commerce contrary to the tenor of the law; but the duty of action, of using judgment and
discretion as to whether or not a given ship was susceptible of seizure under said law, was
place wholly upon the commander of the vessel. This appears from reading the Act. Section 5
thereof provides as follows:
"That is shall be lawful for the President of the United States to
give instructions to the commanders of the public armed ships of the United
States to stop and examine any ship or vessel of the United States on the
high seas which there may be reason to suspect to be engaged in any traffic
or commerce contrary to the true tenor hereof; and if, upon examination, it
shall appear that such ship or vessel is bound or sailing to any port or place
within the territory of the French republic, or her dependencies, contrary to
the intent of this Act, it shall be the duty of the commander of such public
armed vessel to seize every such ship or vessel engaged in such illicit
commerce, and send the same to the nearest port in the United States; and
every such ship or vessel, thus bound or sailing to any such port or place,
shall, upon due proof thereof, be liable to the like penalties and forfeitures
as are provided in and by the first section of this Act."
Under the law as quoted, the commander was acting for himself, upon his own
responsibility. He had no authority whatever from the President of the United States to act in a
given way, or at a particular time, or upon a given ship, or upon a given set of facts. He was
controlled entirely by the provisions of the law not by the orders or instructions of the
President. The source of his authority was the Act, not the President. He was acting for
himself, as principal upon whom lay all of the obligation and all of the responsibility, and
whose duties were clearly specified in the Act, and not as agent or servant of the President.
He was acting in the performance of his own duty, and not in the performance of a duty laid
upon the President of the United States.
In the case at bar no duty whatever was laid by law upon Harding or Trowbridge.
The only duty, if there was a duty in connection with the act performed, was laid upon the
Governor-General personally. If the law was as he supposed it to be, it was his duty and not
their duty which they were performing. They acted not as principals upon whom an obligation
was directly or indirectly laid by law. They were at the time merely the hands of the Governor-
General.
The case of Tracy vs. Swartwout (10 Peters, 80), is distinguishable upon the same
grounds. In the case of Marbury vs. Madison (1 Cranch, 137), the court said (p. 164):
"By the Constitution of the United States the President is invested
with certain important political powers, in the exercise of which he is to use
his own discretion, and is accountable only to his country in his political
character, and to his own conscience. To aid him in the performance of these
duties, he is authorized to appoint certain officers, who act by his authority,
and in conformity with his orders. In such cases, their acts are his acts; and
whatever opinion may be entertained of the manner in which executive
discretion may be used, still there exists, and can exist, no power to control
that discretion. The subjects are political: they respect the nation, not
individual rights, and being entrusted to the executive, the decision of the
executive is conclusive. The application of this remark will be perceived, by
advertising to the Act of Congress for establishing the department of foreign
affairs. This officers, as his duties were prescribed by that Act, is to conform
precisely to the will of the President: he is the mere organ by whom that will
is communicated. The acts of such an officer, as an officer, can never be
examinable by the courts. But when the legislature proceeds to impose on
that officer other duties; when he is directed peremptorily to perform certain
acts; when the rights of individuals are dependent on the performance of
those acts; he is so far the officer of the law; is amenable to the laws for his
conduct; and can not, at his discretion, sport away the vested rights of
others."
I do not discuss here the other citations made by the attorneys for the defendant for
the reason that those authorities refer exclusively to the liability of executive officers of the
Government occupying subordinate positions, who were creatures of the legislature and not of
the constitution, and whose duties are specified by the law under which they acted and were
by nature different from those laid upon the chief executive. As we have distinctly stated
heretofore, the rule of liability, herein set forth, applicable to the chief executive is not applied
in this opinion to those occupying subordinate positions. The principle of the nonliability of the
chief executive rests in public policy. It is not held in this case that public policy reaches
persons other than those who, in the highest sense, constitute the coordinate departments of
the government. That question is not involved and is not discussed.
 I have looked in vain for any logical reason which requires us to hold Harding and
Trowbridge liable when the person whose act they were in reality performing is himself free
from responsibility.
||| (Forbes v. Chuoco Tiaco, G.R. No. 6157, [July 30, 1910], 16 PHIL 534-654)