Tolentino v.

The Board of Accountancy

G.R. No. L-3062 September 28, 1951
Facts: Commonwealth Act No. 3105 was enacted. Section 16-A thereof, as amended
by Commonwealth Act No. 342, authorized accountants to practice their profession
under a trade name. Assailing the constitutionality of the aforementioned provision,
plaintiff, an accountant, filed an action for declaratory relief in the CFI of Manila on
the ground advanced that the assailed provision is a class legislation since by its
terms it excludes persons engaged in other callings or professions from adopting,
acquiring or using a trade name in connection with the practice of such callings or
professions. Included as defendants are Robert Orr Ferguson, and Hans Hausamann,
foreign accountants
practicing their profession in the Philippines under the trade name Fleming and
Williamson.
Issue: Whether plaintiff has sufficient cause of action to question the
constitutionality of Commonwealth Act No. 342?
Held: No, plaintiff has no suffic
ient cause of action. Plaintiffs main objection centers on
the exclusive character of the law which extends its benefits only to those engaged
in the profession of accountancy. It is obvious that he seeks the declaratory relief
not for his own personal benefit, or because his rights or prerogatives as an
accountant, or as an individual, are adversely affected, but rather for the benefit of
persons belonging to other professions or callings, who are not parties to this case.
He does not claim having suffered any prejudice or damage to him or to his rights or
prerogatives as an accountant by the use of the disputed name by the defendants.
His complaint is rather addressed against the propriety of the use of said trade
name by the defendants because it is misleading and is liable to defraud the public.
Plaintiff, therefore, has no actual justiciable controversy against the herein
defendants which may give him the right to secure relief by asserting the
unconstitutionality of the law in question. In order that an action for declaratory
relief may be entertained, it must be predicated on the following requisite facts or
conditions: (1) there must be a justiciable controversy; (2) the controversy must be
between persons whose interests are adverse; (3) the party seeking declaratory
relief must have a legal interest in the controversy; and (4) the issue involved must
be ripe for judicial determination. These requisite facts are wanting and, therefore,
the complaint must fail for lack of sufficient cause of action.
********************************
FULL TEXT ADDISON
EN BANC
[G.R. No. 9951. December 3, 1914. ]
THE UNITED STATES, Plaintiff-Appellee, v. A. A. ADDISON, Defendant-Appellant.
W. H. Booram, for Appellant.

Solicitor-General Corpus, for Appellee.

SYLLABUS
1. SEARCH WARRANTS; PROSECUTION FOR WRONGFUL ISSUANCE. The statute
requires that both malice and the absence of probable cause must exist
concurrently in order to justify a conviction.
2. ID.; ID.; MALICE. Malice cannot be inferred from the fact that the search
warrant failed of its purpose.
3. ID., ID.; PROBABLE CAUSE. Probable cause required to justify the issuance of a
search warrant is such antecedent facts and circumstances as would induce a
cautious man to rely upon them and act in pursuance thereof.
4. ID.; ID.; SUFFICIENCY OF PROOF. Testimony examined and held insufficient to
show either malice or the absence of probable cause.
DECISION
TRENT, J. :
The defendant A. A. Addison, having been condemned to pay a fine of P100, to
indemnify the injured party in the sum of P500, with subsidiary imprisonment in
case of insolvency, and to the payment of the costs of the cause, for a violation of
the provisions of section 106 of General Orders No. 58, appealed to this court.
On the 23d of December, 1912, the appellant subscribed and swore to an affidavit
wherein he stated that on or about the 20th of that month at 8.30 a. m. he saw
various bottles containing compounds of opium in an aparador situated in the
upstairs sala of the house of John McStay in Lucena, Tayabas. On the same day the
Court of First Instance issued a search warrant, based upon that affidavit, directing
the sheriff to search the house of McStay and seize the opium. In compliance with
this warrant the sheriff proceeded immediately to search the house, but found
nothing of a contraband nature, and so reported to the court. Subsequent thereto,
and on the 3d day of January, 1913, John McStay filed a sworn complaint (denuncia),
charging the appellant with the "crime of malicious prosecution" and alleging that
the appellant did, on the 23d day of December, 1912, willfully and maliciously, with
the sole intent and purpose of gratifying his personal resentment against the
complainant, procure and obtain, without any probable cause whatever, a search
warrant "of the person, residence, and place of business of the undersigned, by
signing and swearing before the Honorable Herbert D. Gale, judge of the Court of
First Instance, certain malicious, false, and defamatory statements, known to be
false and defamatory by said accused." On the 11th of April, 1913, the provincial
fiscal filed a formal complaint against the appellant charging him with the same

crime and setting forth the same allegations as in the complainants denuncia. After
trial, the judgment above stated was duly entered.
For the purpose of showing that the search warrant was procured "maliciously and
without probable cause," the prosecution presented seven witnesses, who testified
substantially as follows:chanrob1es virtual 1aw library
Juan Merchan, clerk of the court, and Agapito Villasenor, sheriff, testified only in
reference to the filing of the affidavit upon which the search warrant was based, the
issuing of the warrant, and the search of the complainants premises.
John McStay, the complainant, testified that for some time prior to the 23d of
December, 1912, he was running a hotel and canteen in Lucena, Tayabas; that the
appellant lived in his hotel from the 28th of September until the 23d of December;
that on the 23d of December the appellant left his hotel on account of certain
disturbances which occurred therein on the previous night; that these disturbances
were caused by three of four guests, and disturbed the appellants sleep; that on
the following day the appellant had a quarrel with one of these guests; that at the
time he left he was angry and stated that he desired to leave the hotel and would
arrange his account on the following day; that when he (the witness) bought the
hotel he also bought the beds and the aparadores; and that he and the appellant
were friends, never having had any trouble. As to the damages suffered by the
complainant on account of the search of his premises, he stated that some persons
did not know whether he was guilty or not, and, therefore, stayed away from his
hotel during those days, resulting in damaging him in the sum of P500.
James R. Gittings testified that he was one of the persons who were making the
noise in the hotel on the night of the 22d, while the appellant was sleeping upstairs;
that the appellant called their attention to these disturbances and asked them to
stop so that he could sleep; and that on the following day he and the appellant had
a quarrel.
Thomas Hoey, an internal-revenue agent, testified that he accompanied the sheriff
at the time the complainants hotel was searched; and that he induced the
appellant to present the affidavit upon which the search warrant was based, after
the appellant had stated to him that opium could be found in McStays possession.
Guy B. Shiller, principal of the Lucena High School, testified that he had a
conversation with the appellant and Hoey at the government building, and that he
heard Hoey ask the appellant if the latter would make an affidavit for the purpose of
securing the search warrant, and the appellant answered that he would.
Jose Nieva, an employee in the Bureau of Agriculture, stated that he was acquainted
with Benigna Robles, a witness for the defendant; that on the 24th of December he
returned to Lucena from Manila, and that when the train stopped at Calamba about
10 a. m., he saw Benigna Robles in the train.
The defense presented four witnesses; Joseph Rosemblatt, Charles R. Duffin,
Benigna Robles, and the Appellant.

Rosemblatt testified that he lived in Lucena up until some time in the month of
August, 1912; that at that time a Mr. Salmon owned the canteen and hotel which
was searched by the sheriff; that he was in an automobile accident when one of the
passengers had his arm dislocated and, upon returning to Lucena after the accident,
they went to the drug store to get some opium liniment; that the pharmacist
refused to sell them this medicine without a doctors prescription; that the following
day he went to the canteen, which was located in the hotel, and was then informed
by a Mr. Henson that the canteen had some 25 bottles of various kinds of
medicines; that these bottles were shown him in an aparador; and that on taking
hold of one of the bottles he discovered that it contained an opium mixture.
Duffin, who was a mechanical engineer at that time, stated that he knew the
canteen owner, at the time the search warrant was issued, to be McStay; that when
he first knew the hotel it was owned by one Henson; that at the time he left Lucena
McStay was negotiating for the purchase of that hotel; that he saw in this hotel on
various occasions opium in an aparador; and that this aparador was upstairs.
Benigna Robles testified that she was a dancing girl in McStays saloon in
December, 1912; that two days before Christmas she saw Hoey and McStay talking
together in the hotel and heard Hoey use the word "Addison;" that after Hoey and
McStay terminated their conversation, Henson entered the room upstairs and took
out of the aparador some bottles and put them in his pocket; and that that same
afternoon the search was made.
Section 106 of General Orders No. 58 reads: "Any person who shall procure a search
warrant maliciously and without probable cause, and any officer who shall
unlawfully exceed his authority or use unnecessary severity in executing the same,
shall be punished by imprisonment for not more than one year or by a fine of not
exceeding one thousand pesos, or by both such fine and imprisonment."cralaw
virtua1aw library
This section requires that both malice and absence of probable cause must exist
concurrently in order to justify a conviction. If the appellants act in making the
affidavit was malicious and unfounded, but there was probable cause for such act,
he must be acquitted. "In a legal sense," says Greenleaf (vol. 2, sec. 453, 16th Ed.) ,
"any unlawful act done willfully and purposely to the injury of another, is, as against
that person, malicious." Malice cannot be inferred from the fact that no opium was
found in the house of the complainant by the sheriff.
"Probable cause may be defined as such reasons, supported by facts and
circumstances, as will warrant a cautious man in the belief that his action, and the
means taken in prosecuting it, are legally just and proper." (Burton v. St. Paul, M. &
M. Ry. Co., 33 Minn., 189.)
Addison lived in McStays hotel from September 28 to December 23, when he left on
account of certain disturbances in the hotel on the night of the 22d. McStay took no
part in these disturbances. He and Addison were, according to his own testimony,
friends. But it is said that the fact that Addison in effect charged McStay with the
commission of a serious crime is inconsistent with the latters testimony to the
effect that they were friends. McStay said that they were friends, and he is the

person who claims to have been injured. Again, Addison was induced by the
internal-revenue agent to make the affidavit. In so doing he was carrying out his
obligation as an "informer," and as such informer he had reasonable cause to
believe that he would be rewarded therefor in accordance with certain provisions of
the Opium Law.
Rosemblatt testified that he saw opium in the aparador before McStay bought the
hotel. Duffin testified to the same effect and, also, that at the time he saw the
opium McStay was negotiating for the purchase of the hotel. Benigna Robles said
that she saw opium in the hotel two days before Christmas. She also testified in
effect that McStay was notified of the issuance of a search warrant and caused the
opium to be removed. The prosecution attempted to show that this witness was not
in Lucena on the 23d of December, and for this purpose presented Jose Nieva, who
testified that on his return to Lucena on the 24th he saw Benigna in the train at
Calamba. It does not appear that Benigna could not have come to Manila on the
afternoon or night of the 23d, or even on the morning of the 24th. We must,
therefore, conclude that there was an absence of malice on the part of the
defendant in making the affidavit and that there existed probable cause for making
the affidavit.
For the foregoing reasons the judgment appealed from is reversed and the
defendant acquitted, with costs de officio.
Arellano, C.J., Torres, Carson, Moreland and Araullo, JJ., concur.
********************************
BACHE FULL TEXT
EN BANC
[G.R. No. L-32409. February 27, 1971.]
BACHE & CO. (PHIL.), INC. and FREDERICK E. SEGGERMAN, Petitioners, v. HON.
JUDGE VIVENCIO M. RUIZ, MISAEL P. VERA, in his capacity as Commissioner of
Internal Revenue, ARTURO LOGRONIO, RODOLFO DE LEON, GAVINO VELASQUEZ,
MIMIR DELLOSA, NICANOR ALCORDO, JOHN DOE, JOHN DOE, JOHN DOE, and JOHN
DOE, Respondents.
San Juan, Africa, Gonzales & San Agustin, for Petitioners.
Solicitor General Felix Q. Antonio, Assistant Solicitor General Crispin V . Bautista,
Solicitor Pedro A. Ramirez and Special Attorney Jaime M. Maza for Respondents.
DECISION
VILLAMOR, J.:
This is an original action of certiorari, prohibition and mandamus, with prayer for a
writ of preliminary mandatory and prohibitory injunction. In their petition Bache &
Co. (Phil.), Inc., a corporation duly organized and existing under the laws of the
Philippines, and its President, Frederick E. Seggerman, pray this Court to declare null
and void Search Warrant No. 2-M-70 issued by respondent Judge on February 25,
1970; to order respondents to desist from enforcing the same and/or keeping the
documents, papers and effects seized by virtue thereof, as well as from enforcing
the tax assessments on petitioner corporation alleged by petitioners to have been

made on the basis of the said documents, papers and effects, and to order the
return of the latter to petitioners. We gave due course to the petition but did not
issue the writ of preliminary injunction prayed for therein.
The pertinent facts of this case, as gathered from record, are as follows:chanrob1es
virtual 1aw library
On February 24, 1970, respondent Misael P. Vera, Commissioner of Internal
Revenue, wrote a letter addressed to respondent Judge Vivencio M. Ruiz requesting
the issuance of a search warrant against petitioners for violation of Section 46(a) of
the National Internal Revenue Code, in relation to all other pertinent provisions
thereof, particularly Sections 53, 72, 73, 208 and 209, and authorizing Revenue
Examiner Rodolfo de Leon, one of herein respondents, to make and file the
application for search warrant which was attached to the letter.
In the afternoon of the following day, February 25, 1970, respondent De Leon and
his witness, respondent Arturo Logronio, went to the Court of First Instance of Rizal.
They brought with them the following papers: respondent Veras aforesaid letterrequest; an application for search warrant already filled up but still unsigned by
respondent De Leon; an affidavit of respondent Logronio subscribed before
respondent De Leon; a deposition in printed form of respondent Logronio already
accomplished and signed by him but not yet subscribed; and a search warrant
already accomplished but still unsigned by respondent Judge.
At that time respondent Judge was hearing a certain case; so, by means of a note,
he instructed his Deputy Clerk of Court to take the depositions of respondents De
Leon and Logronio. After the session had adjourned, respondent Judge was informed
that the depositions had already been taken. The stenographer, upon request of
respondent Judge, read to him her stenographic notes; and thereafter, respondent
Judge asked respondent Logronio to take the oath and warned him that if his
deposition was found to be false and without legal basis, he could be charged for
perjury. Respondent Judge signed respondent de Leons application for search
warrant and respondent Logronios deposition, Search Warrant No. 2-M-70 was then
sign by respondent Judge and accordingly issued.
Three days later, or on February 28, 1970, which was a Saturday, the BIR agents
served the search warrant petitioners at the offices of petitioner corporation on
Ayala Avenue, Makati, Rizal. Petitioners lawyers protested the search on the ground
that no formal complaint or transcript of testimony was attached to the warrant. The
agents nevertheless proceeded with their search which yielded six boxes of
documents.
On March 3, 1970, petitioners filed a petition with the Court of First Instance of Rizal
praying that the search warrant be quashed, dissolved or recalled, that preliminary
prohibitory and mandatory writs of injunction be issued, that the search warrant be
declared null and void, and that the respondents be ordered to pay petitioners,
jointly and severally, damages and attorneys fees. On March 18, 1970, the
respondents, thru the Solicitor General, filed an answer to the petition. After
hearing, the court, presided over by respondent Judge, issued on July 29, 1970, an
order dismissing the petition for dissolution of the search warrant. In the meantime,

or on April 16, 1970, the Bureau of Internal Revenue made tax assessments on
petitioner corporation in the total sum of P2,594,729.97, partly, if not entirely,
based on the documents thus seized. Petitioners came to this Court.
The petition should be granted for the following reasons:chanrob1es virtual 1aw
library
1. Respondent Judge failed to personally examine the complainant and his witness.
The pertinent provisions of the Constitution of the Philippines and of the Revised
Rules of Court are:jgc:chanrobles.com.ph
"(3) The right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures shall not be violated, and no
warrants shall issue but upon probable cause, to be determined by the judge after
examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched, and the persons or
things to be seized." (Art. III, Sec. 1, Constitution.)
"SEC. 3. Requisites for issuing search warrant. A search warrant shall not issue
but upon probable cause in connection with one specific offense to be determined
by the judge or justice of the peace after examination under oath or affirmation of
the complainant and the witnesses he may produce, and particularly describing the
place to be searched and the persons or things to be seized.
"No search warrant shall issue for more than one specific offense.
"SEC. 4. Examination of the applicant. The judge or justice of the peace must,
before issuing the warrant, personally examine on oath or affirmation the
complainant and any witnesses he may produce and take their depositions in
writing, and attach them to the record, in addition to any affidavits presented to
him." (Rule 126, Revised Rules of Court.)
The examination of the complainant and the witnesses he may produce, required by
Art. III, Sec. 1, par. 3, of the Constitution, and by Secs. 3 and 4, Rule 126 of the
Revised Rules of Court, should be conducted by the judge himself and not by others.
The phrase "which shall be determined by the judge after examination under oath
or affirmation of the complainant and the witnesses he may produce," appearing in
the said constitutional provision, was introduced by Delegate Francisco as an
amendment to the draft submitted by the Sub-Committee of Seven. The following
discussion in the Constitutional Convention (Laurel, Proceedings of the Philippine
Constitutional Convention, Vol. III, pp. 755-757) is
enlightening:jgc:chanrobles.com.ph
"SR. ORENSE. Vamos a dejar compaero los piropos y vamos al grano.
En los casos de una necesidad de actuar inmediatamente para que no se frusten los
fines de la justicia mediante el registro inmediato y la incautacion del cuerpo del
delito, no cree Su Seoria que causaria cierta demora el procedimiento apuntado en
su enmienda en tal forma que podria frustrar los fines de la justicia o si Su Seoria

encuentra un remedio para esto casos con el fin de compaginar los fines de la
justicia con los derechos del individuo en su persona, bienes etcetera, etcetera.
"SR. FRANCISCO. No puedo ver en la practica el caso hipottico que Su Seoria
pregunta por la siguiente razon: el que solicita un mandamiento de registro tiene
que hacerlo por escrito y ese escrito no aparecer en la Mesa del Juez sin que alguien
vaya el juez a presentar ese escrito o peticion de sucuestro. Esa persona que
presenta el registro puede ser el mismo denunciante o alguna persona que solicita
dicho mandamiento de registro. Ahora toda la enmienda en esos casos consiste en
que haya peticion de registro y el juez no se atendra solamente a sea peticion sino
que el juez examiner a ese denunciante y si tiene testigos tambin examiner a los
testigos.
"SR. ORENSE. No cree Su Seoria que el tomar le declaracion de ese denunciante
por escrito siempre requeriria algun tiempo?.
"SR. FRANCISCO. Seria cuestio de un par de horas, pero por otro lado minimizamos
en todo lo posible las vejaciones injustas con la expedicion arbitraria de los
mandamientos de registro. Creo que entre dos males debemos escoger. el menor.
x

"MR. LAUREL. . . . The reason why we are in favor of this amendment is because we
are incorporating in our constitution something of a fundamental character. Now,
before a judge could issue a search warrant, he must be under the obligation to
examine personally under oath the complainant and if he has any witness, the
witnesses that he may produce . . ."cralaw virtua1aw library
The implementing rule in the Revised Rules of Court, Sec. 4, Rule 126, is more
emphatic and candid, for it requires the judge, before issuing a search warrant, to
"personally examine on oath or affirmation the complainant and any witnesses he
may produce . . ."cralaw virtua1aw library
Personal examination by the judge of the complainant and his witnesses is
necessary to enable him to determine the existence or non-existence of a probable
cause, pursuant to Art. III, Sec. 1, par. 3, of the Constitution, and Sec. 3, Rule 126 of
the Revised Rules of Court, both of which prohibit the issuance of warrants except
"upon probable cause." The determination of whether or not a probable cause exists
calls for the exercise of judgment after a judicial appraisal of facts and should not be
allowed to be delegated in the absence of any rule to the contrary.
In the case at bar, no personal examination at all was conducted by respondent
Judge of the complainant (respondent De Leon) and his witness (respondent
Logronio). While it is true that the complainants application for search warrant and
the witness printed-form deposition were subscribed and sworn to before
respondent Judge, the latter did not ask either of the two any question the answer
to which could possibly be the basis for determining whether or not there was
probable cause against herein petitioners. Indeed, the participants seem to have
attached so little significance to the matter that notes of the proceedings before

respondent Judge were not even taken. At this juncture it may be well to recall the
salient facts. The transcript of stenographic notes (pp. 61-76, April 1, 1970, Annex J2 of the Petition) taken at the hearing of this case in the court below shows that per
instruction of respondent Judge, Mr. Eleodoro V. Gonzales, Special Deputy Clerk of
Court, took the depositions of the complainant and his witness, and that
stenographic notes thereof were taken by Mrs. Gaspar. At that time respondent
Judge was at the sala hearing a case. After respondent Judge was through with the
hearing, Deputy Clerk Gonzales, stenographer Gaspar, complainant De Leon and
witness Logronio went to respondent Judges chamber and informed the Judge that
they had finished the depositions. Respondent Judge then requested the
stenographer to read to him her stenographic notes. Special Deputy Clerk Gonzales
testified as follows:jgc:chanrobles.com.ph
"A
And after finishing reading the stenographic notes, the Honorable Judge
requested or instructed them, requested Mr. Logronio to raise his hand and warned
him if his deposition will be found to be false and without legal basis, he can be
charged criminally for perjury. The Honorable Court told Mr. Logronio whether he
affirms the facts contained in his deposition and the affidavit executed before Mr.
Rodolfo de Leon.
"Q

And thereafter?

"A

And thereafter, he signed the deposition of Mr. Logronio.

"Q

Who is this he?

"A

The Honorable Judge.

"Q

The deposition or the affidavit?

"A

The affidavit, Your Honor."cralaw virtua1aw library

Thereafter, respondent Judge signed the search warrant.

The participation of respondent Judge in the proceedings which led to the issuance
of Search Warrant No. 2-M-70 was thus limited to listening to the stenographers
readings of her notes, to a few words of warning against the commission of perjury,
and to administering the oath to the complainant and his witness. This cannot be
consider a personal examination. If there was an examination at all of the
complainant and his witness, it was the one conducted by the Deputy Clerk of
Court. But, as stated, the Constitution and the rules require a personal examination
by the judge. It was precisely on account of the intention of the delegates to the
Constitutional Convention to make it a duty of the issuing judge to personally
examine the complainant and his witnesses that the question of how much time
would be consumed by the judge in examining them came up before the
Convention, as can be seen from the record of the proceedings quoted above. The
reading of the stenographic notes to respondent Judge did not constitute sufficient
compliance with the constitutional mandate and the rule; for by that manner
respondent Judge did not have the opportunity to observe the demeanor of the
complainant and his witness, and to propound initial and follow-up questions which

the judicial mind, on account of its training, was in the best position to conceive.
These were important in arriving at a sound inference on the all-important question
of whether or not there was probable cause.
2. The search warrant was issued for more than one specific offense.
Search Warrant No. 2-M-70 was issued for" [v]iolation of Sec. 46(a) of the National
Internal Revenue Code in relation to all other pertinent provisions thereof
particularly Secs. 53, 72, 73, 208 and 209." The question is: Was the said search
warrant issued "in connection with one specific offense," as required by Sec. 3, Rule
126?
To arrive at the correct answer it is essential to examine closely the provisions of the
Tax Code referred to above. Thus we find the following:chanrob1es virtual 1aw
library
Sec. 46(a) requires the filing of income tax returns by corporations.
Sec. 53 requires the withholding of income taxes at source.
Sec. 72 imposes surcharges for failure to render income tax returns and for
rendering false and fraudulent returns.
Sec. 73 provides the penalty for failure to pay the income tax, to make a return or to
supply the information required under the Tax Code.
Sec. 208 penalizes" [a]ny person who distills, rectifies, repacks, compounds, or
manufactures any article subject to a specific tax, without having paid the privilege
tax therefore, or who aids or abets in the conduct of illicit distilling, rectifying,
compounding, or illicit manufacture of any article subject to specific tax . . .," and
provides that in the case of a corporation, partnership, or association, the official
and/or employee who caused the violation shall be responsible.
Sec. 209 penalizes the failure to make a return of receipts, sales, business, or gross
value of output removed, or to pay the tax due thereon.
The search warrant in question was issued for at least four distinct offenses under
the Tax Code. The first is the violation of Sec. 46(a), Sec. 72 and Sec. 73 (the filing
of income tax returns), which are interrelated. The second is the violation of Sec. 53
(withholding of income taxes at source). The third is the violation of Sec. 208
(unlawful pursuit of business or occupation); and the fourth is the violation of Sec.
209 (failure to make a return of receipts, sales, business or gross value of output
actually removed or to pay the tax due thereon). Even in their classification the six
above-mentioned provisions are embraced in two different titles: Secs. 46(a), 53, 72
and 73 are under Title II (Income Tax); while Secs. 208 and 209 are under Title V
(Privilege Tax on Business and Occupation).
Respondents argue that Stonehill, Et. Al. v. Diokno, Et Al., L-19550, June 19, 1967
(20 SCRA 383), is not applicable, because there the search warrants were issued for
"violation of Central Bank Laws, Internal Revenue (Code) and Revised Penal Code;"

whereas, here Search Warrant No 2-M-70 was issued for violation of only one code,
i.e., the National Internal Revenue Code. The distinction more apparent than real,
because it was precisely on account of the Stonehill incident, which occurred
sometime before the present Rules of Court took effect on January 1, 1964, that this
Court amended the former rule by inserting therein the phrase "in connection with
one specific offense," and adding the sentence "No search warrant shall issue for
more than one specific offense," in what is now Sec. 3, Rule 126. Thus we said in
Stonehill:jgc:chanrobles.com.ph
"Such is the seriousness of the irregularities committed in connection with the
disputed search warrants, that this Court deemed it fit to amend Section 3 of Rule
122 of the former Rules of Court that a search warrant shall not issue but upon
probable cause in connection with one specific offense. Not satisfied with this
qualification, the Court added thereto a paragraph, directing that no search warrant
shall issue for more than one specific offense."
3. The search warrant does not particularly describe the things to be seized.
The documents, papers and effects sought to be seized are described in Search
Warrant No. 2-M-70 in this manner:jgc:chanrobles.com.ph
"Unregistered and private books of accounts (ledgers, journals, columnars, receipts
and disbursements books, customers ledgers); receipts for payments received;
certificates of stocks and securities; contracts, promissory notes and deeds of sale;
telex and coded messages; business communications, accounting and business
records; checks and check stubs; records of bank deposits and withdrawals; and
records of foreign remittances, covering the years 1966 to 1970."cralaw virtua1aw
library
The description does not meet the requirement in Art III, Sec. 1, of the Constitution,
and of Sec. 3, Rule 126 of the Revised Rules of Court, that the warrant should
particularly describe the things to be seized.
In Stonehill, this Court, speaking thru Mr. Chief Justice Roberto Concepcion,
said:jgc:chanrobles.com.ph
"The grave violation of the Constitution made in the application for the contested
search warrants was compounded by the description therein made of the effects to
be searched for and seized, to wit:chanrob1es virtual 1aw library
Books of accounts, financial records, vouchers, journals, correspondence, receipts,
ledgers, portfolios, credit journals, typewriters, and other documents and/or paper
showing all business transactions including disbursement receipts, balance sheets
and related profit and loss statements.
"Thus, the warrants authorized the search for and seizure of records pertaining to all
business transactions of petitioners herein, regardless of whether the transactions
were legal or illegal. The warrants sanctioned the seizure of all records of the
petitioners and the aforementioned corporations, whatever their nature, thus openly
contravening the explicit command of our Bill of Rights that the things to be

seized be particularly described as well as tending to defeat its major objective:

the elimination of general warrants."cralaw virtua1aw library
While the term "all business transactions" does not appear in Search Warrant No. 2M-70, the said warrant nevertheless tends to defeat the major objective of the Bill of
Rights, i.e., the elimination of general warrants, for the language used therein is so
all-embracing as to include all conceivable records of petitioner corporation, which,
if seized, could possibly render its business inoperative.
In Uy Kheytin, Et. Al. v. Villareal, etc., Et Al., 42 Phil. 886, 896, this Court had
occasion to explain the purpose of the requirement that the warrant should
particularly describe the place to be searched and the things to be seized, to
wit:jgc:chanrobles.com.ph
". . . Both the Jones Law (sec. 3) and General Orders No. 58 (sec. 97) specifically
require that a search warrant should particularly describe the place to be searched
and the things to be seized. The evident purpose and intent of this requirement is to
limit the things to be seized to those, and only those, particularly described in the
search warrant to leave the officers of the law with no discretion regarding what
articles they shall seize, to the end that unreasonable searches and seizures may
not be made, that abuses may not be committed. That this is the correct
interpretation of this constitutional provision is borne out by American
authorities."cralaw virtua1aw library
The purpose as thus explained could, surely and effectively, be defeated under the
search warrant issued in this case.
A search warrant may be said to particularly describe the things to be seized when
the description therein is as specific as the circumstances will ordinarily allow
(People v. Rubio; 57 Phil. 384); or when the description expresses a conclusion of
fact not of law by which the warrant officer may be guided in making the
search and seizure (idem., dissent of Abad Santos, J.,); or when the things described
are limited to those which bear direct relation to the offense for which the warrant is
being issued (Sec. 2, Rule 126, Revised Rules of Court). The herein search warrant
does not conform to any of the foregoing tests. If the articles desired to be seized
have any direct relation to an offense committed, the applicant must necessarily
have some evidence, other than those articles, to prove the said offense; and the
articles subject of search and seizure should come in handy merely to strengthen
such evidence. In this event, the description contained in the herein disputed
warrant should have mentioned, at least, the dates, amounts, persons, and other
pertinent data regarding the receipts of payments, certificates of stocks and
securities, contracts, promissory notes, deeds of sale, messages and
communications, checks, bank deposits and withdrawals, records of foreign
remittances, among others, enumerated in the warrant.
Respondents contend that certiorari does not lie because petitioners failed to file a
motion for reconsideration of respondent Judges order of July 29, 1970. The
contention is without merit. In the first place, when the questions raised before this
Court are the same as those which were squarely raised in and passed upon by the
court below, the filing of a motion for reconsideration in said court before certiorari

can be instituted in this Court is no longer a prerequisite. (Pajo, etc., Et. Al. v. Ago,
Et Al., 108 Phil., 905). In the second place, the rule requiring the filing of a motion
for reconsideration before an application for a writ of certiorari can be entertained
was never intended to be applied without considering the circumstances. (Matutina
v. Buslon, Et Al., 109 Phil., 140.) In the case at bar time is of the essence in view of
the tax assessments sought to be enforced by respondent officers of the Bureau of
Internal Revenue against petitioner corporation, On account of which immediate
and more direct action becomes necessary. (Matute v. Court of Appeals, Et Al., 26
SCRA 768.) Lastly, the rule does not apply where, as in this case, the deprivation of
petitioners fundamental right to due process taints the proceeding against them in
the court below not only with irregularity but also with nullity. (Matute v. Court of
Appeals, Et Al., supra.)
It is next contended by respondents that a corporation is not entitled to protection
against unreasonable search and seizures. Again, we find no merit in the
contention.
"Although, for the reasons above stated, we are of the opinion that an officer of a
corporation which is charged with a violation of a statute of the state of its creation,
or of an act of Congress passed in the exercise of its constitutional powers, cannot
refuse to produce the books and papers of such corporation, we do not wish to be
understood as holding that a corporation is not entitled to immunity, under the 4th
Amendment, against unreasonable searches and seizures. A corporation is, after all,
but an association of individuals under an assumed name and with a distinct legal
entity. In organizing itself as a collective body it waives no constitutional immunities
appropriate to such body. Its property cannot be taken without compensation. It can
only be proceeded against by due process of law, and is protected, under the 14th
Amendment, against unlawful discrimination . . ." (Hale v. Henkel, 201 U.S. 43, 50 L.
ed. 652.)
"In Linn v. United States, 163 C.C.A. 470, 251 Fed. 476, 480, it was thought that a
different rule applied to a corporation, the ground that it was not privileged from
producing its books and papers. But the rights of a corporation against unlawful
search and seizure are to be protected even if the same result might have been
achieved in a lawful way." (Silverthorne Lumber Company, Et. Al. v. United States of
America, 251 U.S. 385, 64 L. ed. 319.)
In Stonehill, Et. Al. v. Diokno, Et Al., supra, this Court impliedly recognized the right
of a corporation to object against unreasonable searches and seizures,
thus:jgc:chanrobles.com.ph
"As regards the first group, we hold that petitioners herein have no cause of action
to assail the legality of the contested warrants and of the seizures made in
pursuance thereof, for the simple reason that said corporations have their
respective personalities, separate and distinct from the personality of herein
petitioners, regardless of the amount of shares of stock or the interest of each of
them in said corporations, whatever, the offices they hold therein may be. Indeed, it
is well settled that the legality of a seizure can be contested only by the party
whose rights have been impaired thereby, and that the objection to an unlawful
search and seizure is purely personal and cannot be availed of by third parties.

Consequently, petitioners herein may not validly object to the use in evidence
against them of the documents, papers and things seized from the offices and
premises of the corporations adverted to above, since the right to object to the
admission of said papers in evidence belongs exclusively to the corporations, to
whom the seized effects belong, and may not be invoked by the corporate officers
in proceedings against them in their individual capacity . . ."cralaw virtua1aw library
In the Stonehill case only the officers of the various corporations in whose offices
documents, papers and effects were searched and seized were the petitioners. In
the case at bar, the corporation to whom the seized documents belong, and whose
rights have thereby been impaired, is itself a petitioner. On that score, petitioner
corporation here stands on a different footing from the corporations in Stonehill.
The tax assessments referred to earlier in this opinion were, if not entirely as
claimed by petitioners at least partly as in effect admitted by respondents
based on the documents seized by virtue of Search Warrant No. 2-M-70.
Furthermore, the fact that the assessments were made some one and one-half
months after the search and seizure on February 25, 1970, is a strong indication
that the documents thus seized served as basis for the assessments. Those
assessments should therefore not be enforced.
PREMISES CONSIDERED, the petition is granted. Accordingly, Search Warrant No. 2M-70 issued by respondent Judge is declared null and void; respondents are
permanently enjoined from enforcing the said search warrant; the documents,
papers and effects seized thereunder are ordered to be returned to petitioners; and
respondent officials the Bureau of Internal Revenue and their representatives are
permanently enjoined from enforcing the assessments mentioned in Annex "G" of
the present petition, as well as other assessments based on the documents, papers
and effects seized under the search warrant herein nullified, and from using the
same against petitioners in any criminal or other proceeding. No pronouncement as
to costs.
Concepcion, C.J., Dizon, Makalintal, Zaldivar, Fernando, Teehankee and Makasiar, JJ.,
concur.
Reyes, J.B.L., J., concurs with Mr. Justice Barredo.
Castro, J., concurs in the result.
Separate Opinions
BARREDO, J., concurring:chanrob1es virtual 1aw library
I concur.
I agree with the ruling that the search warrants in question violates the specific
injunction of Section 3, Rule 126 that "No search warrant shall issue for more than
one specific offense." There is no question in my mind that, as very clearly pointed
out by Mr. Justice Villamor, the phrase "for violation of Section 46 (a) of the National

Internal Revenue Code in relation to all other pertinent provisions thereof,

particularly Sections 53, 72, 73, 208 and 209" refers to more than one specific
offense, considering that the violation of Section 53 which refers to withholding of
income taxes at the sources, Section 208 which punishes pursuit of business or
occupation without payment of the corresponding specific or privilege taxes, and
Section 209 which penalizes failure to make a return of receipts sales, business or
gross value output actually removed or to pay the taxes thereon in connection with
Title V on Privilege Taxes on Business and Occupation can hardly be absorbed in a
charge of alleged violation of Section 46(a), which merely requires the filing of
income tax returns by corporations, so as to constitute with it a single offense. I
perceive here the danger that the result of the search applied for may be used as
basis not only for a charge of violating Section 46(a) but also and separately of
Section 53, 208 and 209. Of course, it is to be admitted that Sections 72 and 73,
also mentioned in the application, are really directly related to Section 46(a)
because Section 72 provides for surcharges for failure to render, returns and for
rendering false and fraudulent returns and Section 73 refers to the penalty for
failure to file returns or to pay the corresponding tax. Taken together, they
constitute one single offense penalized under Section 73. I am not and cannot be in
favor of any scheme which amounts to an indirect means of achieving that which
not allowed to be done directly. By merely saying that a party is being charged with
violation of one section of the code in relation to a number of other sections thereof
which in truth have no clear or direct bearing with the first is to me condemnable
because it is no less than a shotgun device which trenches on the basic liberties
intended to be protected by the unequivocal limitations imposed by the Constitution
and the Rules of Court on the privilege to secure a search warrant with the
aggravating circumstance of being coupled with an attempt to mislead the judge
before whom the application for its issuance is presented.
I cannot close this brief concurrence without expressing my vehement disapproval
of the action taken by respondent internal revenue authorities in using the
documents and papers secured during the search, the legality of which was pending
resolution by the court, as basis of an assessment, no matter how highly motivated
such action might have been. This smacks of lack of respect, if not contempt for the
court and is certainly intolerable. At the very least, it appears as an attempt to
render the court proceedings moot and academic, and dealing as this case does
with constitutionally protected rights which are part and parcel of the basic
concepts of individual liberty and democracy, the government agents should have
been the first ones to refrain from trying to make a farce of these court proceedings.
Indeed, it is to be regretted that the government agents and the court have acted
irregularly, for it is highly doubtful if it would be consistent with the sacredness of
the rights herein found to have been violated to permit the filing of another
application which complies with the constitutional requirements above discussed
and the making of another search upon the return of the papers and documents
now in their illegal possession. This could be an instance wherein taxes properly due
the State will probably remain unassessed and unpaid only because the ones in
charge of the execution of the laws did not know how to respect basic constitutional
rights and liberties.
*******************************
DIGEST

Bache & Co. Inc. et al vs BIR Commissioner Vivencio Ruiz et

al
Search and Seizure Personal Examination of the Judge On 24 Feb 1970,
Commissioner Vera of Internal Revenue, wrote a letter addressed to J Ruiz
requesting the issuance of a search warrant against petitioners for violation of Sec
46(a) of the NIRC, in relation to all other pertinent provisions thereof, particularly
Sects 53, 72, 73, 208 and 209, and authorizing Revenue Examiner de Leon make
and file the application for search warrant which was attached to the letter. The
next day, de Leon and his witnesses went to CFI Rizal to obtain the search warrant.
At that time J Ruiz was hearing a certain case; so, by means of a note, he instructed
his Deputy Clerk of Court to take the depositions of De Leon and Logronio. After the
session had adjourned, J Ruiz was informed that the depositions had already been
taken. The stenographer read to him her stenographic notes; and thereafter, J Ruiz
asked respondent Logronio to take the oath and warned him that if his deposition
was found to be false and without legal basis, he could be charged for perjury. J
Ruiz signed de Leons application for search warrant and Logronios deposition. The
search was subsequently conducted.ISSUE: Whether or not there had been a valid
search warrant.HELD: The SC ruled in favor of Bache on three grounds.1. J Ruiz
failed to personally examine the complainant and his witness.Personal examination
by the judge of the complainant and his witnesses is necessary to enable him to
determine the existence or non-existence of a probable cause.2. The search
warrant was issued for more than one specific offense.The search warrant in
question was issued for at least four distinct offenses under the Tax Code. As ruled
in Stonehill Such is the seriousness of the irregularities committed in connection
with the disputed search warrants, that this Court deemed it fit to amend Section 3
of Rule 122 of the former Rules of Court that a search warrant shall not issue but
upon probable cause in connection with one specific offense. Not satisfied with this
qualification, the Court added thereto a paragraph, directing that no search warrant
shall issue for more than one specific offense.3. The search warrant does not
particularly describe the things to be seized.
The documents, papers and effects sought to be seized are described in the Search
WarrantUnregistered and private books of accounts (ledgers, journals, columnars,
receipts and disbursements books, customers ledgers); receipts for payments
received; certificates of stocks and securities; contracts, promissory notes and
deeds of sale; telex and coded messages; businesscommunications, accounting and
business records; checks and check stubs; records of bank deposits and
withdrawals; and records of foreign remittances, covering the years 1966 to
1970.The description does not meet the requirement in Art III, Sec. 1, of the
Constitution, and of Sec. 3, Rule 126 of the Revised Rules of Court, that the warrant
should particularly describe the things to be seized.A search warrant may be said to
particularly describe the things to be seized when the description therein is as
specific as the circumstances will ordinarily allow or when the description expresses
a conclusion of fact not of law by which the warrant officer may be guided in making
the search and seizure or when the things described are limited to those which bear
direct relation to the offense for which the warrant is being issued.
***************************
G.R. No. 110662

August 4, 1994

TERESITA SALCEDO-ORTANEZ, petitioner,

vs.

COURT OF APPEALS, HON. ROMEO F. ZAMORA, Presiding Judge, Br. 94, Regional Trial
Court of Quezon City and RAFAEL S. ORTANEZ, respondents.
Oscar A. Inocentes & Associates Law Office for petitioner.
Efren A. Santos for private respondent.

PADILLA, J.:
This is a petition for review under Rule 45 of the Rules of Court which seeks to
reverse the decision * of respondent Court of Appeals in CA-G. R. SP No. 28545
entitled "Teresita Salcedo-Ortanez versus Hon. Romeo F. Zamora, Presiding Judge,
Br. 94, Regional Trial Court of Quezon City and Rafael S. Ortanez".
The relevant facts of the case are as follows:
On 2 May 1990, private respondent Rafael S. Ortanez filed with the Regional Trial
Court of Quezon City a complaint for annulment of marriage with damages against
petitioner Teresita Salcedo-Ortanez, on grounds of lack of marriage license and/or
psychological incapacity of the petitioner. The complaint was docketed as Civil Case
No. Q-90-5360 and raffled to Branch 94, RTC of Quezon City presided over by
respondent Judge Romeo F. Zamora.
Private respondent, after presenting his evidence, orally formally offered in
evidence Exhibits "A" to "M".
Among the exhibits offered by private respondent were three (3) cassette tapes of
alleged telephone conversations between petitioner and unidentified persons.
Petitioner submitted her Objection/Comment to private respondent's oral offer of
evidence on 9 June 1992; on the same day, the trial court admitted all of private
respondent's offered evidence.
A motion for reconsideration from petitioner was denied on 23 June 1992.
A petition for certiorari was then filed by petitioner in the Court of Appeals assailing
the admission in evidence of the aforementioned cassette tapes.
On 10 June 1993, the Court of Appeals rendered judgment which is the subject of
the present petition, which in part reads:
It is much too obvious that the petition will have to fail, for two basic reasons:
(1)
Tape recordings are not inadmissible per se. They and any other variant
thereof can be admitted in evidence for certain purposes, depending on how they
are presented and offered and on how the trial judge utilizes them in the interest of
truth and fairness and the even handed administration of justice.

(2)
A petition for certiorari is notoriously inappropriate to rectify a supposed error
in admitting evidence adduced during trial. The ruling on admissibility is
interlocutory; neither does it impinge on jurisdiction. If it is erroneous, the ruling
should be questioned in the appeal from the judgment on the merits and not
through the special civil action of certiorari. The error, assuming gratuitously that it
exists, cannot be anymore than an error of law, properly correctible by appeal and
not by certiorari. Otherwise, we will have the sorry spectacle of a case being subject
of a counterproductive "ping-pong" to and from the appellate court as often as a
trial court is perceived to have made an error in any of its rulings with respect to
evidentiary matters in the course of trial. This we cannot sanction.
WHEREFORE, the petition for certiorari being devoid of merit, is hereby DISMISSED.
1
From this adverse judgment, petitioner filed the present petition for review, stating:
Grounds for Allowance of the Petition
10.
The decision of respondent [Court of Appeals] has no basis in law nor
previous decision of the Supreme Court.
10.1 In affirming the questioned order of respondent judge, the Court of Appeals
has decided a question of substance not theretofore determined by the Supreme
Court as the question of admissibility in evidence of tape recordings has not, thus
far, been addressed and decided squarely by the Supreme Court.
11.
In affirming the questioned order of respondent judge, the Court of Appeals
has likewise rendered a decision in a way not in accord with law and with applicable
decisions of the Supreme Court.
11.1 Although the questioned order is interlocutory in nature, the same can still be
[the] subject of a petition for certiorari. 2
The main issue to be resolved is whether or not the remedy of certiorari under Rule
65 of the Rules of Court was properly availed of by the petitioner in the Court of
Appeals.
The extraordinary writ of certiorari is generally not available to challenge an
interlocutory order of a trial court. The proper remedy in such cases is an ordinary
appeal from an adverse judgment, incorporating in said appeal the grounds for
assailing the interlocutory order.
However, where the assailed interlocutory order is patently erroneous and the
remedy of appeal would not afford adequate and expeditious relief, the Court may
allow certiorari as a mode of redress. 3
In the present case, the trial court issued the assailed order admitting all of the
evidence offered by private respondent, including tape recordings of telephone
conversations of petitioner with unidentified persons. These tape recordings were

made and obtained when private respondent allowed his friends from the military to
wire tap his home telephone. 4
Rep. Act No. 4200 entitled "An Act to Prohibit and Penalize Wire Tapping and Other
Related Violations of the Privacy of Communication, and for other purposes"
expressly makes such tape recordings inadmissible in evidence. The relevant
provisions of Rep. Act No. 4200 are as follows:
Sec. 1.
It shall be unlawful for any person, not being authorized by all the
parties to any private communication or spoken word, to tap any wire or cable, or
by using any other device or arrangement, to secretly overhear, intercept, or record
such communication or spoken word by using a device commonly known as a
dictaphone or dictagraph or detectaphone or walkie-talkie or tape-recorder, or
however otherwise described. . . .
Sec. 4.
Any communication or spoken word, or the existence, contents,
substance, purport, or meaning of the same or any part thereof, or any information
therein contained, obtained or secured by any person in violation of the preceding
sections of this Act shall not be admissible in evidence in any judicial, quasi-judicial,
legislative or administrative hearing or investigation.
Clearly, respondents trial court and Court of Appeals failed to consider the aforequoted provisions of the law in admitting in evidence the cassette tapes in question.
Absent a clear showing that both parties to the telephone conversations allowed the
recording of the same, the inadmissibility of the subject tapes is mandatory under
Rep. Act No. 4200.
Additionally, it should be mentioned that the above-mentioned Republic Act in
Section 2 thereof imposes a penalty of imprisonment of not less than six (6) months
and up to six (6) years for violation of said Act. 5
We need not address the other arguments raised by the parties, involving the
applicability of American jurisprudence, having arrived at the conclusion that the
subject cassette tapes are inadmissible in evidence under Philippine law.
WHEREFORE, the decision of the Court of Appeals in CA-G. R. SP No. 28545 is
hereby SET ASIDE. The subject cassette tapes are declared inadmissible in
evidence.
SO ORDERED.
***********************
SALCEDO VS CA DIGEST
Facts:
Private respondent Rafael Ortanez filed with the Quezon City RTC a complaint for
annulment of marriage with damages against petitioner Teresita Salcedo-Ortanez,
on grounds of lack of marriage license and/or psychological incapacity of the
petitioner.

Among the exhibits offered by private respondent were three (3) cassette tapes of
alleged telephone conversations between petitioner and unidentified persons.
Teresita submitted her Objection/Comment to Rafaels oral offer of evidence.
However, the trial court admitted all of private respondents offered evidence and
later on denied her motion for reconsideration, prompting petitioner to file a petition
for certiorari with the CA to assail the admission in evidence of the aforementioned
cassette tapes.
These tape recordings were made and obtained when private respondent allowed
his friends from the military to wire tap his home telephone.
CA denied the petition because (1) Tape recordings are not inadmissible per se.
They and any other variant thereof can be admitted in evidence for certain
purposes, depending on how they are presented and offered and on how the trial
judge utilizes them in the interest of truth and fairness and the even handed
administration of justice; and (2) A petition for certiorari is notoriously inappropriate
to rectify a supposed error in admitting evidence adduced during trial. The ruling on
admissibility is interlocutory; neither does it impinge on jurisdiction. If it is
erroneous, the ruling should be questioned in the appeal from the judgment on the
merits and not through the special civil action of certiorari. The error, assuming
gratuitously that it exists, cannot be anymore than an error of law, properly
correctible by appeal and not by certiorari.
Petitioner then filed the present petition for review under Rule 45 of the Rules of
Court.

Issue:
W/N the recordings of the telephone conversations are admissible in evidence
W/N the remedy of certiorari under Rule 65 of the Rules of Court was properly
availed of by the petitioner in the Court of Appeals

Held:
1. No. Rep. Act No. 4200 entitled An Act to Prohibit and Penalize Wire Tapping and
Other Related Violations of the Privacy of Communication, and for other purposes
expressly makes such tape recordings inadmissible in evidence thus:
Sec. 1. It shall be unlawful for any person, not being authorized by all the parties to
any private communication or spoken word, to tap any wire or cable, or by using
any other device or arrangement, to secretly overhear, intercept, or record such
communication or spoken word by using a device commonly known as a dictaphone
or dictagraph or detectaphone or walkie-talkie or tape-recorder, or however
otherwise described. . . .

Sec. 4. Any communication or spoken word, or the existence, contents, substance,

purport, or meaning of the same or any part thereof, or any information therein
contained, obtained or secured by any person in violation of the preceding sections
of this Act shall not be admissible in evidence in any judicial, quasi-judicial,
legislative or administrative hearing or investigation.
Absent a clear showing that both parties to the telephone conversations allowed the
recording of the same, the inadmissibility of the subject tapes is mandatory under
Rep. Act No. 4200.
2. Yes and no. The extraordinary writ of certiorari is generally not available to
challenge an interlocutory order of a trial court. The proper remedy in such cases is
an ordinary appeal from an adverse judgment, incorporating in said appeal the
grounds for assailing the interlocutory order.
However, where the assailed interlocutory order is patently erroneous and the
remedy of appeal would not afford adequate and expeditious relief, the Court may
allow certiorari as a mode of redress.
***************************
Tilton v. Richardson is a landmark 1971 decision of the U.S. Supreme Court
upholding a congressional grant program that made federal funds available to
private religious colleges for constructing buildings. In light of Tiltons having
expanded the limits of governmental aid to religiously affiliated colleges and
universities, this entry reviews the Courts rationale and considers the cases
implications.
Facts of the Case
Tilton involved a challenge by taxpayers to Title I of the Higher Education Facilities
Act of 1963, which made available grants to colleges and universities, including
those that are religiously affiliated, in order to construct buildings and facilities that
are used exclusively for secular educational purposes. The taxpayers objected to
grants to four institutions in Connecticut, all of which were religiously affiliated,
claiming that the law granting the funds to the institutions violated the taxpayers
rights under both the Establishment and Free Exercise Clauses of the First
Amendment.
A three-judge federal trial court in Connecticut upheld the act in the face of the
Establishment Clause claim on the bases that it authorized grants to church-related
institutions of higher learning and that it had neither the purpose nor effect of
promoting religion. The court also held that because the grants did not coerce the
taxpayers in the practice of their religious beliefs, it did not violate their rights
under the Free Exercise Clause. Dissatisfied with the outcome, the taxpayers
appealed to the Supreme Court.
The Supreme Courts Ruling

On further review, a sharply divided Supreme Court, in a case in which no opinion

commanded a majority, upheld the constitutionality of the act. The Court found that
the act violated neither the Establishment nor the Free Exercise Clause. A fourjustice bloc, led by Chief Justice Burger and joined by Justices Harlan, Stewart, and
Blackmun, formed the plurality that announced the judgment of the Court. A fifth
member of the Court, Justice White, concurred in the result, but not necessarily in
the pluralitys reasoning.
Chief Justice Burger, as author of the plurality opinion, began by defining the scope
of the act. The plurality pointed out that Congress intended the act to apply to all
colleges and universities, regardless of whether they were religiously affiliated. The
plurality then applied the three-part test that it articulated in Lemon v. Kurtzman
(1971), which has become the judicial standard in controversies involving religion in
both K12 and higher educational settings. The judgments in both Tilton and Lemon
were handed down on the same day.
In applying the Lemon test, the plurality was satisfied that Congress had a secular
purpose in enacting the statute. The plurality explained that the act was
constitutional because Congress carefully designed it to ensure both that funds
would be available to assist institutions to serve the rapidly growing number of
young people who wished to achieve a higher education and that the federal
resources would be used for defined secular purposes, while expressly forbidding
the use of these monies for religious instruction, training, or worship. In its analysis,
the plurality added that none of the four institutions violated the acts restrictions.
The plurality next determined that the act did not advance religion. In doing so, the
plurality stressed that the money was not being used for facilities for religious
purposes. Rather, the plurality acknowledged that the funds were being used to
construct facilities such as libraries and performing arts centers. While upholding
the statute as applied, the plurality explicitly invalidated a portion of the law that
allowed buildings constructed with government funds to be used for religious
purposes after a period of 20 years had expired, because this section
unconstitutionally allowed a contribution of property of substantial value to religious
bodies.
Finally, stressing the fundamental differences between K12 education and higher
education, the plurality posited that the act did not create excessive entanglement
with religion. The plurality distinguished Tilton from Lemon, wherein the Court
invalidated aid in the form of salary supplements to teachers in religiously affiliated
nonpublic schools. The Court observed that the cases were significantly different,
because in Tilton, religious indoctrination was not a substantial purpose or activity
in the four institutions insofar as their student bodies were not composed of
impressionable young people, the assistance was not ideological, and the one-time
grants were for the single purpose of construction.
Having resolved that the act did not violate the Establishment Clause, the plurality
quickly dismissed the Free Exercise challenge. The plurality rejected the taxpayers
argument that by being compelled to pay taxes, a portion of which were used to
finance the disputed grants, the taxpayers were experiencing coercion that was
directed at their own religious beliefs. The plurality remarked that the grants were
indistinguishable from other types of aid that the Supreme Court has permitted.
Justice White, who provided the crucial fifth vote, concurred. White declared that
because states and the federal government had the authority to finance the
separable secular function of higher education, the act passed constitutional
muster. He also commented that even though religion and private interests other

than education might substantially benefit from the act, these benefits did not
convert the act into an impermissible establishment of religion.
Justice Douglas, along with Justices Black and Marshall, joined in a common dissent.
The dissenters emphasized their belief that any aid to religiously affiliated
institutions was unconstitutional. A fourth Justice, Brennan, dissented in Tilton while
expressing his support for Lemon.
Impact of Tilton
Tilton is significant for higher education in three respects. First, Tilton stands for the
proposition that the government may provide money directly to religiously affiliated
colleges and universities without violating the Establishment or Free Exercise
Clauses. As such, Tilton removed any doubt that there are circumstances under
which the government may provide aid directly to religiously affiliated institutions.
Second, the Court drew a constitutional distinction between pervasively sectarian
activities such as religious instruction, training, and worship, on the one hand, and
activities that would take place at any university, such as using libraries,
laboratories, or residence halls, on the other. In fact, the Court invalidated a portion
of the law that allowed the buildings to be used for religious purposes after 20
years. Third, in recognizing fundamental distinctions between education at the K12
level and higher education, the Court upheld aid where sufficient safeguards were in
place to avoid First Amendment concerns.
In the almost 40 years since Tilton, insofar as the Supreme Court has not overruled
or limited its original judgment, the principle that religiously affiliated institutions
may receive government assistance for nonreligious activities remains intact. Yet,
while the Court has never repudiated the distinction between pervasively sectarian
and secular activities, recent cases seem to blur the distinction.
William E. Thro
***************************
Tilton v. Richardson
403 U.S. 672 (1971)Annotate this Case
Syllabus Case
U.S. Supreme Court
Tilton v. Richardson, 403 U.S. 672 (1971)
Tilton v. Richardson
No. 153
Argued March 2-3, 1971
Decided June 28, 1971
403 U.S. 672
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT

Syllabus
The Higher Education Facilities Act of 1963 provides federal construction grants for
college and university facilities, excluding
"any facility used or to be used for sectarian instruction or as a place for religious
worship, or . . . primarily in connection with any part of the program of a school or
department of divinity."
The United States retains a 20-year interest in any facility constructed with funds
under the Act, and if, during this period, the recipient violates the statutory
conditions, the Government is entitled to recovery of funds. Four church-related
colleges and universities in Connecticut received federal construction grants for five
facilities. Appellants attempted to show, in a three-judge court, that the recipient
institutions were "sectarian" by introducing evidence of their relations with religious
authorities, the curricula content, and other indicia of religious character. Appellee
colleges introduced testimony that they had fully complied with the statutory
conditions, and that their religious affiliations did not interfere with their secular
educational functions. The court held that the Act authorized grants to churchrelated schools, and sustained its constitutionality, finding that the Act had neither
the purpose nor the effect of promoting religion.
Held: The Act is constitutional except for that portion providing for a 20-year
limitation on the religious use of the facilities constructed with federal funds. Pp.
403 U. S. 676-689, 403 U. S. 661-671, 403 U. S. 692.
312 F.Supp. 1191, vacated and remanded.
THE CHIEF JUSTICE, joined by MR. JUSTICE HARLAN, MR. JUSTICE STEWART, and MR.
JUSTICE BLACKMUN, concluded that:
1. The Act includes colleges and universities with religious affiliations. Pp. 403 U. S.
676-677.
2. Congress' objective of providing more opportunity for college education is a
legitimate secular goal entirely appropriate for governmental action. Pp. 403 U. S.
678-679.
Page 403 U. S. 673
3. The record fully supports the District Court's findings that the colleges involved
have not violated the statutory restrictions; it provides no basis for assuming that
religiosity necessarily permeates the secular education of the colleges; and it yields
no evidence that religion seeps into the use of any of the five facilities. Pp. 403 U. S.
680-682.
4. The limitation of federal interest in the facilities to a period of 20 years violates
the Religion Clauses of the First Amendment, as the unrestricted use of valuable

property after 20 years is in effect a contribution to a religious body. Pp. 403 U. S.

682-684.
5. This case is distinguished from Lemon v. Kurtzman, ante, p. 403 U. S. 602; (a)
there is less danger here than in church-related primary and secondary schools
dealing with impressionable children that religion will permeate the area of secular
education, since religious indoctrination is not a substantial purpose or activity of
these church-related colleges, (b) the facilities provided here are themselves
religiously neutral, with correspondingly less need for government surveillance, and
(c) the government aid here is a one-time, single-purpose construction grant, with
only minimal need for inspection. Cumulatively, these factors lessen substantially
the potential for divisive religious fragmentation in the political arena. Pp. 403 U. S.
684-689.
6. The implementation of the Act does not inhibit the free exercise of religion in
violation of the First Amendment. P. 403 U. S. 689.
MR. JUSTICE WHITE concurred in the judgment in this case. Pp. 403 U. S. 661-671.
MR. JUSTICE DOUGLAS, joined by MR. JUSTICE BLACK and MR. JUSTICE MARSHALL,
agreed only with that part of the plurality opinion relating to the limitation of federal
interest in the facilities to 20 years, concluding that a reversion of a facility at the
end of that period to a parochial school would be unconstitutional as a gift of
taxpayers' funds. P. 403 U. S. 692.
BURGER, C.J., announced the Court's judgment and delivered an opinion in which
HARLAN, STEWART, and BLACKMUN, JJ., joined. WHITE, J., filed an opinion concurring
in the judgment, ante, p. 403 U. S. 661. DOUGLAS, J., filed an opinion dissenting in
part, in which BLACK and MARSHALL, JJ., joined, post, p. 403 U. S. 689. BRENNAN, J.
filed a dissenting opinion, ante, p. 403 U. S. 642.
Page 403 U. S. 674
MR. CHIEF JUSTICE BURGER announced the judgment of the Court and an opinion in
which MR. JUSTICE HARLAN, MR. JUSTICE STEWART, and MR. JUSTICE BLACKMUN
join.
This appeal presents important constitutional questions as to federal aid for churchrelated colleges and universities under Title I of the Higher Education Facilities Act
of 1963, 77 Stat. 364, as amended, 20 U.S.C. 711-721 (1964 ed. and Supp. V),
which provides construction grants for buildings and facilities used
Page 403 U. S. 675
exclusively for secular educational purposes. We must determine first whether the
Act authorizes aid to such church-related institutions, and, if so, whether the Act
violates either the Establishment or Free Exercise Clauses of the First Amendment.
I

The Higher Education Facilities Act was passed in 1963 in response to a strong
nationwide demand for the expansion of college and university facilities to meet the
sharply rising number of young people demanding higher education. The Act
authorizes federal grants and loan to "institutions of higher education" for the
construction of a wide variety of "academic facilities." But 751(a)(2) (1964 ed.,
Supp. V) expressly excludes
"any facility used or to be used for sectarian instruction or as a place for religious
worship, or . . . any facility which . . . is used or to be used primarily in connection
with any part of the program of a school or department of divinity. . . ."
The Act is administered by the United States Commissioner of Education. He advises
colleges and universities applying for funds that under the Act no part of the project
may be used for sectarian instruction, religious worship, or the programs of a
divinity school. The Commissioner requires applicants to provide assurances that
these restrictions will be respected. The United States retains a 20-year interest in
any facility constructed with Title I funds. If, during this period, the recipient violates
the statutory conditions, the United States is entitled to recover an amount equal to
the proportion of its present value that the federal grant bore to the original cost of
the facility. During the 20-year period, the statutory restrictions are enforced by the
Office of Education primarily by way of on-site inspections.
Page 403 U. S. 676
Appellants are citizens and taxpayers of the United States and residents of
Connecticut. They brought this suit for injunctive relief against the officials who
administer the Act. Four church-related colleges and universities in Connecticut
receiving federal construction grants under Title I were also named as defendants.
Federal funds were used for five projects at these four institutions: (1) a library
building at Sacred Heart University; (2) a music, drama, and arts building at
Annhurst College; (3) a science building at Fairfield University; (4) a library building
at Fairfield; and (5) a language laboratory at Albertus Magnus College.
A three-judge federal court was convened under 28 U.S.C. 2282 and 2284.
Appellants attempted to show that the four recipient institutions were "sectarian" by
introducing evidence of their relations with religious authorities, the content of their
curricula, and other indicia of their religious character. The sponsorship of these
institutions by religious organizations is not disputed. Appellee colleges introduced
testimony that they had fully complied with the statutory conditions and that their
religious affiliation in no way interfered with the performance of their secular
educational functions. The District Court ruled that Title I authorized grants to
church-related colleges and universities. It also sustained the constitutionality of the
Act, finding that it had neither the purpose nor the effect of promoting religion. 312
F.Supp. 1191. We noted probable jurisdiction. 399 U.S. 904 (1970).
II
We are satisfied that Congress intended the Act to include all colleges and
universities regardless of any affiliation with or sponsorship by a religious body.

Congress defined "institutions of higher education," which are eligible to receive aid
under the Act, in broad and
Page 403 U. S. 677
inclusive terms. Certain institutions, for example, institutions that are neither public
nor nonprofit, are expressly excluded, and the Act expressly prohibits use of the
facilities for religious purposes. But the Act makes no reference to religious
affiliation or nonaffiliation. Under these circumstances, "institutions of higher
education" must be taken to include church-related colleges and universities.
This interpretation is fully supported by the legislative history. Although there was
extensive debate on the wisdom and constitutionality of aid to institutions affiliated
with religious organizations, Congress clearly included them in the program. The
sponsors of the Act so stated, 109 Cong.Rec.19218 (1963) (remarks of Sen. Morse);
id. at 14954 (remarks of Rep. Powell); id. at 14963 (remarks of Rep. Quie), and
amendments aimed at the exclusion of church-related institutions were defeated. Id.
at 14990-14992, 19496.
III
Numerous cases considered by the Court have noted the internal tension in the First
Amendment between the Establishment Clause and the Free Exercise Clause. Walz
v. Tax Comm'n, 397 U. S. 664 (1970), is the most recent decision seeking to define
the boundaries of the neutral area between these two provisions within which the
legislature may legitimately act. There, as in other decisions, the Court treated the
three main concerns against which the Establishment Clause sought to protect:
"sponsorship, financial support, and active involvement of the sovereign in religious
activity." Id. at 668.
Every analysis must begin with the candid acknowledgment that there is no single
constitutional caliper that can be used to measure the precise degree to which
these three factors are present or absent. Instead, our
Page 403 U. S. 678
analysis in this area must begin with a consideration of the cumulative criteria
developed over many years and applying to a wide range of governmental action
challenged as violative of the Establishment Clause.
There are always risks in treating criteria discussed by the Court from time to time
as "tests" in any limiting sense of that term. Constitutional adjudication does not
lend itself to the absolutes of the physical sciences or mathematics. The standards
should rather be viewed as guidelines with which to identify instances in which the
objectives of the Religion Clauses have been impaired. And, as we have noted in
Lemon v. Kurtzman and Earley v. DiCenso, ante at 403 U. S. 612, candor compels
the acknowledgment that we can only dimly perceive the boundaries of permissible
government activity in this sensitive area of constitutional adjudication.

Against this background we consider four questions: first, does the Act reflect a
secular legislative purpose? Second, is the primary effect of the Act to advance or
inhibit religion? Third, does the administration of the Act foster an excessive
government entanglement with religion? Fourth, does the implementation of the Act
inhibit the free exercise of religion?
(a)
The stated legislative purpose appears in the preamble, where Congress found and
declared that
"the security and welfare of the United States require that this and future
generations of American youth be assured ample opportunity for the fullest
development of their intellectual capacities, and that this opportunity will be
jeopardized unless the Nation's colleges and universities are encouraged and
assisted in their efforts to accommodate rapidly growing numbers of youth who
aspire to a higher education."
20 U.S.C. 701.
Page 403 U. S. 679
This expresses a legitimate secular objective entirely appropriate for governmental
action.
The simplistic argument that every form of financial aid to church-sponsored activity
violates the Religion Clauses was rejected long ago in Bradfield v. Roberts, 175 U. S.
291 (1899). There, a federal construction grant to a hospital operated by a religious
order was upheld. Here, the Act is challenged on the ground that its primary effect
is to aid the religious purposes of church-related colleges and universities.
Construction grants surely aid these institutions in the sense that the construction
of buildings will assist them to perform their various functions. But bus
transportation, textbooks, and tax exemptions all gave aid in the sense that
religious bodies would otherwise have been forced to find other sources from which
to finance these services. Yet all of these forms of governmental assistance have
been upheld. Everson v. Board of Education, 330 U. S. 1 (1947); Board of Education
v. Allen, 392 U. S. 236 (1968); Walz v. Tax Comm'n., supra. See also Bradfield v.
Roberts, supra. The crucial question is not whether some benefit accrues to a
religious institution as a consequence of the legislative program, but whether its
principal or primary effect advances religion.
A possibility always exists, of course, that the legitimate objectives of any law or
legislative program may be subverted by conscious design or lax enforcement.
There is nothing new in this argument. But judicial concern about these possibilities
cannot, standing alone, warrant striking down a statute as unconstitutional.
The Act itself was carefully drafted to ensure that the federally subsidized facilities
would be devoted to the secular, and not the religious, function of the recipient
institutions. It authorizes grants and loans only for academic facilities that will be
used for defined secular purposes, and expressly prohibits their use for religious

Page 403 U. S. 680

instruction, training, or worship. These restrictions have been enforced in the Act's
actual administration, and the record shows that some church-related institutions
have been required to disgorge benefits for failure to obey them.
Finally, this record fully supports the findings of the District Court that none of the
four church-related institutions in this case has violated the statutory restrictions.
The institutions presented evidence that there had been no religious services or
worship in the federally financed facilities, that there are no religious symbols or
plaques in or on them, and that they had been used solely for nonreligious
purposes. On this record, therefore, these buildings are indistinguishable from a
typical state university facility. Appellants presented no evidence to the contrary.
Appellants instead rely on the argument that government may not subsidize any
activities of an institution of higher learning that, in some of its programs, teaches
religious doctrines. This argument rests on Everson, where the majority stated that
the Establishment Clause barred any "tax . . . levied to support any religious . . .
institutions . . . whatever form they may adopt to teach or practice religion." 330
U.S. at 330 U. S. 16. In Allen, however, it was recognized that the Court had
fashioned criteria under which an analysis of a statute's purpose and effect was
determinative as to whether religion was being advanced by government action.
392 U.S. at 392 U. S. 243; Abington School District v. Schempp, 374 U. S. 203, 374
U. S. 222 (1963).
Under this concept, appellants' position depends on the validity of the proposition
that religion so permeates the secular education provided by church-related
colleges and universities that their religious and secular educational functions are,
in fact, inseparable. The argument that government grants would thus inevitably
advance
Page 403 U. S. 681
religion did not escape the notice of Congress. It was carefully and thoughtfully
debated, 109 Cong.Rec.19474-19475, but was found unpersuasive. It was also
considered by this Court in Allen. There, the Court refused to assume that religiosity
in parochial elementary and secondary schools necessarily permeates the secular
education that they provide.
This record, similarly, provides no basis for any such assumption here. Two of the
five federally financed buildings involved in this case are libraries. The District Court
found that no classes had been conducted in either of these facilities, and that no
restrictions were imposed by the institutions on the books that they acquired. There
is no evidence to the contrary. The third building was a language laboratory at
Albertus Magnus College. The evidence showed that this facility was used solely to
assist students with their pronunciation in modern foreign languages -- a use which
would seem peculiarly unrelated and unadaptable to religious indoctrination.
Federal grants were also used to build a science building at Fairfield University and
a music, drama, and arts building at Annhurst College.

There is no evidence that religion seeps into the use of any of these facilities.
Indeed, the parties stipulated in the District Court that courses at these institutions
are taught according to the academic requirements intrinsic to the subject matter
and the individual teacher's concept of professional standards. Although appellants
introduced several institutional documents that stated certain religious restrictions
on what could be taught, other evidence showed that these restrictions were not, in
fact, enforced, and that the schools were characterized by an atmosphere of
academic freedom, rather than religious indoctrination. All four institutions, for
example, subscribe to the 1940 Statement of Principles on Academic
Page 403 U. S. 682
Freedom and Tenure endorsed by the American Association of University Professors
and the Association of American Colleges.
Rather than focus on the four defendant colleges and universities involved in this
case, however, appellants seek to shift our attention to a "composite profile" that
they have constructed of the "typical sectarian" institution of higher education. We
are told that such a "composite" institution imposes religious restrictions on
admissions, requires attendance at religious activities, compels obedience to the
doctrines and dogmas of the faith, requires instruction in theology and doctrine, and
does everything it can to propagate a particular religion. Perhaps some churchrelated schools fit the pattern that appellants describe. Indeed, some colleges have
been declared ineligible for aid by the authorities that administer the Act. But
appellants do not contend that these four institutions fall within this category.
Individual projects can be properly evaluated if and when challenges arise with
respect to particular recipients and some evidence is then presented to show that
the institution does in fact, possess these characteristics. We cannot, however,
strike down an Act of Congress on the basis of a hypothetical "profile."
(b)
Although we reject appellants' broad constitutional arguments, we do perceive an
aspect in which the statute's enforcement provisions are inadequate to ensure that
the impact of the federal aid will not advance religion. If a recipient institution
violates any of the statutory restrictions on the use of a federally financed facility,
754(b)(2) permits the Government to recover an amount equal to the proportion of
the facility's present value that the federal grant bore to its original cost.
Page 403 U. S. 683
This remedy, however, is available to the Government only if the statutory
conditions are violated "within twenty years after completion of construction." This
20-year period is termed by the statute as "the period of Federal interest," and
reflects Congress' finding that, after 20 years, "the public benefit accruing to the
United States" from the use of the federally financed facility "will equal or exceed in
value" the amount of the federal grant. 20 U.S.C. 754(a).

Under 754(b)(2), therefore, a recipient institution's obligation not to use the facility
for sectarian instruction or religious worship would appear to expire at the end of 20
years. We note, for example, that, under 718(b)(7)(C) (1964 ed., Supp. V), an
institution applying for a federal grant is only required to provide assurances that
the facility will not be used for sectarian instruction or religious worship "during at
least the period of the Federal interest therein (as defined in section 754 of this
title)."
Limiting the prohibition for religious use of the structure to 20 years obviously opens
the facility to use for any purpose at the end of that period. It cannot be assumed
that a substantial structure has no value after that period, and, hence, the
unrestricted use of a valuable property is, in effect, a contribution of some value to
a religious body. Congress did not base the 20-year provision on any contrary
conclusion. If, at the end of 20 years, the building is, for example, converted into a
chapel or otherwise used to promote religious interests, the original federal grant
will, in part, have the effect of advancing religion.
To this extent, the Act therefore trespasses on the Religion Clauses. The restrictive
obligations of a recipient institution under 751(a)(2) cannot, compatibly with the
Religion Clauses, expire while the building has substantial value. This circumstance
does not require us to
Page 403 U. S. 684
invalidate the entire Act, however. "The cardinal principle of statutory construction
is to save, and not to destroy." NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1,
301 U. S. 30 (1937). In Champlin Rfg. Co. v. Commission, 286 U. S. 210, 286 U. S.
234 (1932), the Court noted
"The unconstitutionality of a part of an Act does not necessarily defeat . . . the
validity of its remaining provisions. Unless it is evident that the legislature would not
have enacted those provisions which are within its power, independently of that
which is not, the invalid part may be dropped if what is left is fully operative as a
law."
Nor does the absence of an express severability provision in the Act dictate the
demise of the entire statute. E.g., United States v. Jackson, 390 U. S. 570, 390 U. S.
585 n. 27 (1968).
We have found nothing in the statute or its objectives intimating that Congress
considered the 20-year provision essential to the statutory program as a whole. In
view of the broad and important goals that Congress intended this legislation to
serve, there is no basis for assuming that the Act would have failed of passage
without this provision; nor will its excision impair either the operation or
administration of the Act in any significant respect. [Footnote 1]
IV

We next turn to the question of whether excessive entanglements characterize the

relationship between government and church under the Act. Walz v. Tax Comm'n,
supra, at 397 U. S. 674-676. Our decision today in
Page 403 U. S. 685
Lemon v. Kurtzman and Robinson v. DiCenso has discussed and applied this
independent measure of constitutionality under the Religion Clauses. There, we
concluded that excessive entanglements between government and religion were
fostered by Pennsylvania and Rhode Island statutory programs under which state
aid was provided to parochial elementary and secondary schools. Here, however,
three factors substantially diminish the extent and the potential danger of the
entanglement.
In DiCenso, the District Court found that the parochial schools in Rhode Island were
"an integral part of the religious mission of the Catholic Church." There, the record
fully supported the conclusion that the inculcation of religious values was a
substantial, if not the dominant, purpose of the institutions. The Pennsylvania case
was decided on the pleadings, and hence we accepted as true the allegations that
the parochial schools in that State shared the same characteristics.
Appellants' complaint here contains similar allegations. But they were denied by the
answers, and there was extensive evidence introduced on the subject. Although the
District Court made no findings with respect to the religious character of the four
institutions of higher learning, we are not required to accept the allegations as true
under these circumstances, particularly where, as here, appellants themselves do
not contend that these four institutions are "sectarian."
There are generally significant differences between the religious aspects of churchrelated institutions of higher learning and parochial elementary and secondary
schools. [Footnote 2] The "affirmative if not dominant policy" of the instruction in
pre-college church schools is "to assure future
Page 403 U. S. 686
adherents to a particular faith by having control of their total education at an early
age." Walz v. Tax Comm'n, supra, at 397 U. S. 671. [Footnote 3] There is substance
to the contention that college students are less impressionable and less susceptible
to religious indoctrination. [Footnote 4] Common observation would seem to support
that view, and Congress may well have entertained it. The skepticism of the college
student is not an inconsiderable barrier to any attempt or tendency to subvert the
congressional objectives and limitations. Furthermore, by their very nature, college
and postgraduate courses tend to limit the opportunities for sectarian influence by
virtue of their own internal disciplines. Many church-related colleges and
universities are characterized by a high degree of academic freedom, [Footnote 5]
and seek to evoke free and critical responses from their students.
The record here would not support a conclusion that any of these four institutions
departed from this general pattern. All four schools are governed by Catholic
religious organizations, and the faculties and student bodies at each are

predominantly Catholic. Nevertheless, the evidence shows that non-Catholics were

admitted as students and given faculty appointments. Not one of these four
institutions requires its students to attend religious services. Although all four
schools require their students to take theology courses, the parties stipulated that
these courses are taught according to the academic requirements of the subject
matter and the teacher's concept of professional standards. The parties also
stipulated that the courses covered a range of human religious
Page 403 U. S. 687
experiences, and are not limited to courses about the Roman Catholic religion. The
schools introduced evidence that they made no attempt to indoctrinate students or
to proselytize. Indeed, some of the required theology courses at Albertus Magnus
and Sacred Heart are taught by rabbis. Finally, as we have noted, these four schools
subscribe to a well established set of principles of academic freedom, and nothing in
this record shows that these principles are not, in fact, followed. In short, the
evidence shows institutions with admittedly religious functions, but whose
predominant higher education mission is to provide their students with a secular
education.
Since religious indoctrination is not a substantial purpose or activity of these
church-related colleges and universities, there is less likelihood than in primary and
secondary schools that religion will permeate the area of secular education. This
reduces the risk that government aid will, in fact, serve to support religious
activities. Correspondingly, the necessity for intensive government surveillance is
diminished, and the resulting entanglements between government and religion
lessened. Such inspection as may be necessary to ascertain that the facilities are
devoted to secular education is minimal, and indeed hardly more than the
inspections that States impose over all private schools within the reach of
compulsory education laws.
The entanglement between church and state is also lessened here by the
nonideological character of the aid that the Government provides. Our cases from
Everson to Allen have permitted church-related schools to receive government aid
in the form of secular, neutral, or nonideological services, facilities, or materials that
are supplied to all students regardless of the affiliation of the school that they
attend. In Lemon and DiCenso, however, the state programs subsidized teachers,
either directly or indirectly. Since teachers are not necessarily
Page 403 U. S. 688
religiously neutral, greater governmental surveillance would be required to
guarantee that state salary aid would not, in fact, subsidize religious instruction.
There, we found the resulting entanglement excessive. Here, on the other hand, the
Government provides facilities that are themselves religiously neutral. The risks of
Government aid to religion, and the corresponding need for surveillance, are
therefore reduced.
Finally, government entanglements with religion are reduced by the circumstance
that, unlike the direct and continuing payments under the Pennsylvania program,

and all the incidents of regulation and surveillance, the Government aid here is a
one-time, single-purpose construction grant. There are no continuing financial
relationships or dependencies, no annual audits, and no government analysis of an
institution's expenditures on secular, as distinguished from religious, activities.
Inspection as to use is a minimal contact.
No one of these three factors, standing alone, is necessarily controlling;
cumulatively all of them shape a narrow and limited relationship with government
which involves fewer and less significant contacts than the two state schemes
before us in Lemon and DiCenso. The relationship therefore has less potential for
realizing the substantive evils against which the Religion Clauses were intended to
protect.
We think that, cumulatively, these three factors also substantially lessen the
potential for divisive religious fragmentation in the political arena. This conclusion is
admittedly difficult to document, but neither have appellants pointed to any
continuing religious aggravation on this matter in the political processes. Possibly
this can be explained by the character and diversity of the recipient colleges and
universities and the absence of any intimate continuing relationship or dependency
between government and religiously affiliated institutions. The
Page 403 U. S. 689
potential for divisiveness inherent in the essentially local problems of primary and
secondary schools is significantly less with respect to a college or university, whose
student constituency is not local, but diverse and widely dispersed.
V
Finally, we must consider whether the implementation of the Act inhibits the free
exercise of religion in violation of the First Amendment. Appellants claim that the
Free Exercise Clause is violated because they are compelled to pay taxes, the
proceeds of which in part finance grants under the Act. Appellants, however, are
unable to identify any coercion directed at the practice or exercise of their religious
beliefs. Board of Education v. Allen, supra, at 392 U. S. 246-249. Their share of the
cost of the grants under the Act is not fundamentally distinguishable from the
impact of the tax exemption sustained in Walz or the provision of textbooks upheld
in Allen.
We conclude that the Act does not violate the Religion Clauses of the First
Amendment except that part of 754(b)(2) providing a 20-year limitation on the
religious use restrictions contained in 751(a)(2). We remand to the District Court
with directions to enter a judgment consistent with this opinion.
Vacated and remanded.
********************************
On numerous occasions the Supreme Court has addressed the constitutionality of
government assistance to religious elementary and secondary schools. Less
frequently litigated has been the constitutionality of assistance to religious colleges

and other institutions of higher education. Tilton v. Richardson is the first of three
cases where a closely divided Court struggled with the issue, concluding in each
instance that the assistance in question did not violate the First Amendment.
In Tilton, the point of contention was federal legislation providing for building
construction grants to institutions of higher education. Public and private colleges
were eligible, as were secular and religiously affiliated institutions. However,
religious institutions became ineligible if any part of a building was used for
sectarian instruction or worship. These restrictions remained for twenty years.
Federal taxpayers sued, alleging violations of the establishment and free exercise
clauses. They challenged grants to four Roman Catholic colleges to construct a
music and drama building, science building, language laboratory, and two libraries.
A fourjustice plurality of the Court held that the assistance was in most respects
constitutional. A fifth and deciding vote was supplied by Justice Byron White, who
concurred separately.
The Tilton plurality followed the analysis in Lemon v. Kurtzman (403 U.S. 602, 1971),
decided the same day. Congresss aim in expanding opportunities for students
regardless of where they attended college was deemed an appropriate secular
purpose. The plurality found that church-related colleges were less permeated with
religion than were K through 12 schools, and college students were more critically
minded and less subject to religious indoctrination. Furthermore, the assistance was
a one-time, single-purpose event, and academic buildings were religiously neutral
aid. However, the twenty-year restriction was shorter than a buildings useful life. To
prevent later diversion of the aid to an inherently religious use, the plurality
required that the restriction remain over the life of the facility. In all other respects
the establishment clause was not violated.
Plaintiffs also claimed that their federal taxes, a small part of which were
appropriated to support higher education including religious colleges, caused them
to suffer coercion in violation of the free exercise clause. However, because there
was no evidence of how the tax burdened plaintiffs exercise of religion central to
a prima facie casethe plurality held that the action failed to state a claim under
the free exercise clause.
The striking down of the twenty-year provision while only a small and severable
part of the overall legislationwas the first occasion for the Court to overturn a
federal law as one contrary to the establishment clause. The Court faced two
subsequent challenges involving aid to religious colleges. In Hunt v. McNair (413
U.S. 734, 1973), the Court upheld the issuance of tax-exempt revenue bonds for
college buildings. The Court in Roemer v. Maryland Board of Public Works (426 U.S.
736, 1976; plurality opinion) sustained issuance of general educational grants to
private colleges. Accordingly, Tilton helped set a pattern, not broken until the end of
the century, in which the Court overturned most forms of direct aid to
religiousKthrough 12 schools while upholding assistance to religious colleges and
universities.
**************************

Ang Dating Daan host Eliseo S. Soriano uttered the following statements in his TV
program against Michael Sandoval (Iglesia ni Cristos minister and regular host of
the TV program Ang Tamang Daan):
Lehitimong anak ng demonyo[!] Sinungaling [!]
Gago ka talaga[,] Michael[!] [M]asahol ka pa sa putang babae[,] o di ba[?] []Yung
putang babae[,] ang gumagana lang doon[,] []yung ibaba, dito kay Michael[,] ang
gumagana ang itaas, o di ba? O, masahol pa sa putang babae []yan. Sobra ang
kasinungalingan ng mga demonyong ito.
As a result, The MTRCB initially slapped Sorianos Ang Dating Daan, which was
earlier given a G rating for general viewership, with a 20-day preventive
suspension after a preliminary conference. Later, in a decision, it found him liable
for his utterances, and was imposed a three-month suspension from his TV program
Ang Dating Daan. Soriano challenged the order of the MTRCB.
HELD:
The SC ruled that Sorianos statement can be treated as obscene, at least with
respect to the average child, and thus his utterances cannot be considered as
protected speech. Citing decisions from the US Supreme Court, the High Court said
that the analysis should be context based and found the utterances to be obscene
after considering the use of television broadcasting as a medium, the time of the
show, and the G rating of the show, which are all factors that made the utterances
susceptible to children viewers. The Court emphasized on how the uttered words
could be easily understood by a child literally rather than in the context that they
were used.
The SC also said that the suspension is not a prior restraint, but rather a form of
permissible administrative sanction or subsequent punishment. In affirming the
power of the MTRCB to issue an order of suspension, the majority said that it is a
sanction that the MTRCB may validly impose under its charter without running afoul
of the free speech clause. visit fellester.blogspot.com The Court said that the
suspension is not a prior restraint on the right of petitioner to continue with the
broadcast of Ang Dating Daan as a permit was already issued to him by MTRCB,
rather, it was a sanction for the indecent contents of his utterances in a G rated
TV program. (Soriano v. Laguardia; GR No. 165636, April 29, 2009)
Dissenting Opinion:
Chief Justice Reynato S. Puno, in a separate dissenting opinion, said that a single
government action could be both a penalty and a prior restraint. The Chief
Magistrate pointed out that the three month suspension takes such form because it
also acts as a restraint to petitioners future speech and thus deserves a higher
scrutiny than the context based approach that the majority applied. In voting to
grant Sorianos petition, the Chief Justice said that in the absence of proof and
reason, he [Soriano] should not be penalized with a three-month suspension that
works as a prior restraint on his speech.
*******************************

Soriano vs. La Guardia

G.R. No. 164785. April 29, 2009
Facts:
On August 10, 2004, at around 10:00 p.m., petitioner, as host of the program Ang
Dating Daan, aired on UNTV 37, made obscene remarks against INC. Two days after,
before the MTRCB, separate but almost identical affidavit-complaints were lodged
by Jessie L. Galapon and seven other private respondents, all members of the
Iglesia ni Cristo (INC), against petitioner in connection with the above broadcast.
Respondent Michael M. Sandoval, who felt directly alluded to in petitioners remark,
was then a minister of INC and a regular host of the TV program Ang Tamang Daan.
Issue:
Whether or not Sorianos statements during the televised Ang Dating Daan part of
the religious discourse and within the protection of Section 5, Art.III.
Held:
No. Under the circumstances obtaining in this case, therefore, and considering the
adverse effect of petitioners utterances on the viewers fundamental rights as well
as petitioners clear violation of his duty as a public trustee, the MTRCB properly
suspended him from appearing in Ang Dating Daan for three months. Furthermore,
it cannot be properly asserted that petitioners suspension was an undue
curtailment of his right to free speech either as a prior restraint or as a subsequent
punishment. Aside from the reasons given above (re the paramount of viewers
rights, the public trusteeship character of a broadcasters role and the power of the
State to regulate broadcast media), a requirement that indecent language be
avoided has its primary effect on the form, rather than the content, of serious
communication. There are few, if any, thoughts that cannot be expressed by the use
of less offensive language.
**********************

LAUREL VS. MISA

ISSUE:
Whether or not Section 19 of Commonwealth Act NO. 682 is an ex post facto law.
FACTS:
Anastacio Laurel demands his release asserting that Commonwealth Act No. 682 is
uncostitutional and void him being a detained as a political prisoner. Alleging that
when he was arrested, (May, 1945), article 125 of the Revised Penal Code was in
force, and petitioner could have asked for release after six hours and, therefore,

Commonwealth Act No. 682 that takes away that right is ex post facto, retroactive
and fundamentally objectionable.
RULING:
Nor is the position correct that section 19 is retroactive in its operation. It refers to
detention after its passage not before. Incidentally, there is no constitutional
objection to retroactive statutes where they relate, to remedies or procedure.
In May, 1945, he could not have asked for release after six hours. In other words, he
would not have been discharged from the custody. (Raquiza vs. Branford, supra.)
Article 125 of the Revised Penal Code was in force, it is true; but not as to him. The
laws of the Commonwealth were revived in Camarines Sur by operation of General
MacArthur's proclamation of October 23, 1944, upon its liberation from enemy
control; but subject to his reservation to hold active collaborationists in restraint "for
the duration of the war." So, persons apprehended under that directive, for
treasonable collaboration, could not necessarily invoke the benefits of article 125 of
the Revised Penal Code.