DOMINADOR B. BUSTOS, petitioner, vs. ANTONIO G. LUCERO, Judge of First Instance of Pampanga, respondent. E. M. Banzali for petitioner.

Acting Provincial Fiscal Albino L. Figueroa and Assistant Provincial Fiscal Marcelo L. Mallari for respondent.

the complaint's objection, to recall the complainant and her witnesses at the preliminary investigation so that they might be cross-examined, we sustained the justice of the peace's order. We said that section 11 of Rule 108 does not curtail the sound discretion of the justice of the peace on the matter. We said that "while section 11 of Rule 108 defines the bounds of the defendant's right in the preliminary investigation, there is nothing in it or any other law restricting the authority, inherent in a court of justice, to pursue a course of action reasonably calculated to bring out the truth." But we made it clear that the "defendant can not, as a matter of right, compel the complaint and his witnesses to repeat in his presence what they had said at the preliminary examination before the issuance of the order of arrest." We called attention to the fact that "the constitutional right of an accused to be confronted by the witnesses against him does not apply to preliminary hearings' nor will the absence of a preliminary examination be an infringement of his right to confront witnesses." As a matter of fact, preliminary investigation may be done away with entirely without infringing the constitutional right of an accused under the due process clause to a fair trial. The foregoing decision was rendered by a divided court. The minority went farther than the majority and denied even any discretion on the part of the justice of the peace or judge holding the preliminary investigation to compel the complainant and his witnesses to testify anew. Upon the foregoing considerations, the present petition is dismissed with costs against the petitioner. Moran, C.J., Paras, Pablo, Bengzon, and Briones, JJ., concur.

TUASON, J.: The petitioner herein, an accused in a criminal case, filed a motion with the Court of First Instance of Pampanga after he had been bound over to that court for trial, praying that the record of the case be remanded to the justice of the peace court of Masantol, the court of origin, in order that the petitioner might cross-examine the complainant and her witnesses in connection with their testimony, on the strength of which warrant was issued for the arrest of the accused. The motion was denied and that denial is the subject matter of this proceeding. According to the memorandum submitted by the petitioner's attorney to the Court of First Instance in support of his motion, the accused, assisted by counsel, appeared at the preliminary investigation. In that investigation, the justice of the peace informed him of the charges and asked him if he pleaded guilty or not guilty, upon which he entered the plea of not guilty. "Then his counsel moved that the complainant present her evidence so that she and her witnesses could be examined and cross-examined in the manner and form provided by law." The fiscal and the private prosecutor objected, invoking section 11 of rule 108, and the objection was sustained. "In view thereof, the accused's counsel announced his intention to renounce his right to present evidence," and the justice of the peace forwarded the case to the court of first instance. Leaving aside the question whether the accused, after renouncing his right to present evidence, and by reason of that waiver he was committed to the corresponding court for trial, is estopped, we are of the opinion that the respondent judge did not act in excess of his jurisdiction or in abuse of discretion in refusing to grant the accused's motion to return the record for the purpose set out therein. In Dequito and Saling Buhay vs. Arellano, G.R. No. L-1336, recently promulgated, in which case the respondent justice of the peace had allowed the accused, over

Separate Opinions FERIA, J., dissenting: I am sorry to dissent from the decision. The petitioner in the present case appeared at the preliminary investigation before the Justice of the Peace of Masantol, Pampanga, and after being informed of the criminal charges against him and asked if he pleaded guilty or not guilty, pleaded not guilty. "Then the counsel for the petitioner moved that the complainant present her evidence so that her witnesses could be examined and cross-examined in the manner and form provided by law." The fiscal and the private prosecutor objected to petitioner's motion invoking section 11, Rule 108, and the objection was sustained. In view thereof, the accused refused to present his evidence, and the case was forwarded to the Court of First Instance of Pampanga. The counsel for the accused petitioner filed a motion with the Court of First Instance praying that the record of the case be remanded to the justice of the peace of Masantol, in order that the petitioner might crossexamine the complainant and her witnesses in connection with their testimony. The motion was denied, and for that reason the present special civil action of mandamus was instituted. It is evident that the refusal or waiver of the petitioner to present his evidence during the investigation in the justice of the peace, was not a waiver of his alleged right to be confronted with and cross-examine the witnesses for the prosecution, that is, of the preliminary investigation provided for in General Order No. 58 and Act No. 194, to which he claims to be entitled, as shown by the fact that, as soon as the case was forwarded to the Court of First Instance, counsel for the petitioner filed a motion with said court to remand the case to the Justice of the Peace of Masantol ordering the latter to make said preliminary investigation. His motion having been denied, the petitioner has filed the present action in which he squarely attacks the validity of the provision of section 11, Rule 108, on the ground that it deprives him of the right to be confronted with and cross-examine the witnesses for the prosecution, contrary to the provision of section 13, Article VIII, of the Constitution. In the case of Dequito and Saling Buhay vs. Arellano, No. L-1336, we did not discuss and decide the question of validity or constitutionality of said section 11 in connection with section 1 of Rule 108, because that question was not raised therein, and we merely construed the provisions

on preliminary investigation or Rule 108. In said case the writer of this dissenting opinion said: It may not be amiss to state that, modesty aside, the writer of this dissenting opinion, then a practising attorney, was the one who prepared the draft of the Rules of Court relating to criminal procedure, and the provisions on preliminary investigation in the draft were the same as those of the old law, which gave the defendant the right to be confronted with and to cross-examine the witnesses for the prosecution. But the Supreme Court approved and adopted in toto the draft, except the part referring to preliminary investigation which it modified, by suppressing said right and enacting, in its stead, the provisions of section 11 of Rule 108 in its present form. I prefer the old to the new procedure. But I can not subscribe to the majority decision, which is a judicial legislation and makes the exercise of the right of a defendant to be confronted, with and cross-examine the witnesses against him, to depend entirely upon the whim or caprice of a judge or officer conducting the preliminary investigation. But now the question of the validity of said section 11, Rule 108, is squarely presented to this Court for decision, we have perforce to pass upon it. Section 13, Article VIII, of the Constitution prescribes that "the Supreme Court shall have power to promulgate rules concerning pleading, practice and procedure in all courts, but said rules shall not diminish, increase or modify substantive rights." The constitution added the last part of the above-quoted constitutional precept in order to emphasize that the Supreme Court is not empowered, and therefore can not enact or promulgate substantive laws or rules, for it is obvious that rules which diminish, increase or modify substantive rights, are substantive and not adjective laws or rules concerning pleading, practice and procedure. It does not require an elaborate arguments to show that the right granted by law upon a defendant to be confronted with and crossexamine the witnesses for the prosecuted in preliminary investigation as well as in the trial of the case is a substantive right. It is based on human experience, according to which a person is not prone to tell a lie against another in his presence, knowing fully well that the latter may easily contradict him, and that the credibility of a person or veracity of his testimony may be efficaciously tested by a cross-examination. It is

substantive right because by exercising it, an accused person may show, even if he has no evidence in his favor, that the testimonies of the witnesses for the prosecution are not sufficient to indicate that there is a probability that a crime has been committed and he is guilty thereof, and therefore the accused is entitled to be released and not committed to prison, and thus avoid an open and public accusation of crime, the trouble, expense, and anxiety of a public trial, and the corresponding anxiety or moral suffering which a criminal prosecution always entails. This right is not a constitutional but a statutory right granted by law to an accused outside of the City of Manila because of the usual delay in the final disposition of criminal cases in provinces. The law does not grant such right to a person charged with offenses triable by the Court of First Instance in the City of Manila, because of the promptness, actual or presumptive, with which criminal cases are tried and disposed of in the Court of First Instance of said city. But this right, though not a constitutional one, can not be modified, abridged, or diminished by the Supreme Court, by virtue of the rule making power conferred upon this Court by the Constitution. Since the provisions of section 11 of Rule 108 as construed by this Court in several cases, (in which the question of constitutionality or validity of said section had not been squarely raised) do away with the defendant's right under discussion, it follows that said section 11 diminishes the substantive right of the defendant in criminal case, and this Court has no power or authority to promulgate it and therefore is null and void. The fact that the majority of this Court has ruled in the above cited case of Dequito and Saling Buhay vs.Arellano, that the inferior or justice of the peace courts have discretion to grant a defendant's request to have the witnesses for the prosecution recalled to testify again in the presence of the defendant and be cross-examined by the latter, does not validate said provision; because to make the exercise of an absolute right discretionary or dependent upon the will or discretion of the court or officer making the preliminary investigation, is evidently to diminish or modify it. Petition is therefore granted.

PERFECTO, J., dissenting: In our concurring and dissenting opinion in the case of Dequito and Saling Buhay vs. Arellano, No. L-1336, we said: In our opinion, section 11 of Rule 108 must be read, interpreted, and applied in a way that will not contravene the constitutional provision guaranteeing to all accused the right "to meet the witnesses face to face." (Section 1 [17], Article III.) Consequently, at the preliminary hearing contemplated by said reglementary section, the defendant is entitled as a matter of fundamental right to her the testimony of the witnesses for the prosecution and to cross-examine them. Although in such preliminary hearing the accused cannot finally be convicted, he is liable to endure the ordeal eloquently depicted in the decision, and the constitutional guarantee protects defendants, not only from the jeopardy of being finally convicted and punished, but also from the physical, mental and moral sufferings that may unjustly be visited upon him in any one of the stages of the criminal process instituted against him. He must be afforded the opportunities to have the charges against him quashed, not only at the final hearing, but also at the preliminary investigation, if by confronting the witnesses for the prosecution he can convince the court that the charges are groundless. There is no justice in compelling him to undergo the troubles of a final hearing if at the preliminary hearing the case can be terminated in his favor. Otherwise, the preliminary investigation or hearing will be an empty gesture that should not have a place within the framework of dignified and solemn judicial proceedings. On the strength of the above quoted opinion the opinion should be granted and so we vote. Petition dismissed.

RESOLUTION March 8, 1949 TUASON, J.: This cause is now before us on a motion for reconsideration. In the decision sought to be reconsidered, we said, citing Dequito and Saling Buhay vs. Arellano, G.R. No. L-1336: "The constitutional right of an accused to be confronted by the witnesses against him does not apply to preliminary hearings; nor will the absence of a preliminary examination be an infringement of his right to confront witness. As a matter of fact, preliminary investigation may be done away with entirely without infringing the constitutional right of an accused under the due process clause to a fair trial." We took this ruling to be ample enough to dispose the constitutional question pleaded in the application for certiorari. Heeding the wishes of the petitioner, we shall enlarge upon the subject. It is contended that section 11 of Rule 108 of the Rules of Court 1 infringes section 13, Article VIII, of the Constitution. 2 It is said that the rule in question deals with substantive matters and impairs substantive rights. We can not agree with this view. We are of the opinion that section 11 of Rule 108, like its predecessors, is an adjective law and not a substantive law or substantive right. Substantive law creates substantive rights and the two terms in this respect may be said to be synonymous. Substantive rights is a term which includes those rights which one enjoys under the legal system prior to the disturbance of normal relations. (60 C.J., 980.) Substantive law is that part of the law which creates, defines and regulates rights, or which regulates the rights and duties which give rise to a cause of action; that part of the law which courts are established to administer; as opposed to adjective or remedial law, which prescribes the method of enforcing rights or obtains redress for their invasion. (36 C. J., 27; 52 C. J. S., 1026.) As applied to criminal law, substantive law is that which declares what acts are crimes and prescribes the punishment for committing them, as distinguished from the procedural law which provides or regulates the steps by which one who commits a crime is to be punished. (22 C. J. S.,

49.) Preliminary investigation is eminently and essentially remedial; it is the first step taken in a criminal prosecution. As a rule of evidence, section 11 of Rule 108 is also procedural. Evidence which is the "the mode and manner of proving the competent facts and circumstances on which a party relies to establish the fact in dispute in judicial proceedings" is identified with and forms part of the method by which, in private law, rights are enforced and redress obtained, and, in criminal law, a law transgressor is punished. Criminal procedure refers to pleading, evidence and practice. (State vs. Capaci, 154 So., 419; 179 La., 462.) the entire rules of evidence have been incorporated into the Rules of Court. We can not tear down section 11 of Rule 108 on constitutional grounds without throwing out the whole code of evidence embodied in these Rules. In Beazell vs. Ohio, 269 U. S., 167, 70 Law. ed., 216, the United States Supreme Court said: Expressions are to be found in earlier judicial opinions to the effect that the constitutional limitation may be transgressed by alterations in the rules of evidence or procedure. See Calder vs. Bull, 3 Dall. 386, 390, 1 L. ed., 648, 650; Cummings vs. Missouri, 4 Wall. 277, 326, 18 L. ed., 356, 364; Kring vs. Missouri, 107 U. S. 221, 228, 232, 27 L. ed., 507, 508, 510, 2 Ct. Rep., 443. And there may be procedural changes which operate to deny to the accused a defense available under the laws in force at the time of the commission of his offense, or which otherwise affect him in such a harsh and arbitrary manner as to fall within the constitutional prohibition. Kring vs. Missouri, 107 U. S., 221, 27 L. ed., 507, 2 Sup. Ct. Rep., 443; Thompson vs. Utah, 170 U. S., 343, 42 L. ed., 1061, 18 Sup. Ct. Rep., 620. But it is not well settled that statutory changes in the mode of trial or the rules of evidence, which do not deprive the accused of a defense and which operate only in a limited and unsubstantial manner to his disadvantage, are not prohibited. A statute which, after indictment, enlarges the class of persons who may be witnesses at the trial, by removing the disqualification of persons convicted of felony, is not an ex post facto law. Hopt vs. Utah, 110 U. S., 575, 28 L. ed., 263, 4 Sup. Ct. Rep., 202, 4 Am. Crim. Rep. 417. Nor is a statute which changes the rules of evidence after the indictment so as to render admissible against the accused evidence previously held inadmissible, Thompson vs. Missouri, 171 U. S., 380, 43 L. ed., 204, 18 Sup. Ct. Rep., 922; or which changes the place of trial, Gut. vs. Minnesota, 9 Wall. 35, 19 L.

ed., 573; or which abolishes a court for hearing criminal appeals, creating a new one in its stead. See Duncan vs. Missouri, 152 U. S., 377, 382, 38 L. ed., 485, 487, 14 sup. Ct. Rep., 570. Tested by this standard, we do not believe that the curtailment of the right of an accused in a preliminary investigation to cross-examine the witnesses who had given evidence for his arrest is of such importance as to offend against the constitutional inhibition. As we have said in the beginning, preliminary investigation is not an essential part of due process of law. It may be suppressed entirely, and if this may be done, mere restriction of the privilege formerly enjoyed thereunder can not be held to fall within the constitutional prohibition. While section 11 of Rule 108 denies to the defendant the right to cross-examine witnesses in a preliminary investigation, his right to present his witnesses remains unaffected, and his constitutional right to be informed of the charges against him both at such investigation and at the trial is unchanged. In the latter stage of the proceedings, the only stage where the guaranty of due process comes into play, he still enjoys to the full extent the right to be confronted by and to cross-examine the witnesses against him. The degree of importance of a preliminary investigation to an accused may be gauged by the fact that this formality is frequently waived. The distinction between "remedy" and "substantive right" is incapable of exact definition. The difference is somewhat a question of degree. (Dexter vs. Edmands, 89 F., 467; Beazell vs. Ohio, supra.) It is difficult to draw a line in any particular case beyond which legislative power over remedy and procedure can pass without touching upon the substantive rights of parties affected, as it is impossible to fix that boundary by general condition. (Statevs. Pavelick, 279 P., 1102.) This being so, it is inevitable that the Supreme Court in making rules should step on substantive rights, and the Constitution must be presumed to tolerate if not to expect such incursion as does not affect the accused in a harsh and arbitrary manner or deprive him of a defense, but operates only in a limited and unsubstantial manner to his disadvantage. For the Court's power is not merely to compile, revise or codify the rules of procedure existing at the time of the Constitution's approval. This power is "to promulgate rules concerning pleading, practice, and procedure in all courts," which is a power to adopt a general, complete and comprehensive system of procedure, adding new and different rules without regard to their source and discarding old ones. The motion is denied.

Moran, C.J., Paras, Pablo, Bengzon, Briones, and Montemayor, JJ., concur. FERIA, J., dissenting: I dissent. The motion for reconsideration must be granted. According to the resolution, the right of a defendant to be confronted with and cross-examine the witnesses for the prosecution in a preliminary investigation granted by law or provided for in General Orders, No. 58, as amended, in force prior to the promulgation of the Rules of Court, is not a substantive right but a mere matter of procedure, and therefore this Court can suppress it in section 11, Rule 108, of the Rules of Court, for the following reasons: First. Because "preliminary investigation is eminently and essentially remedial; it is the first step taken in a criminal prosecution." . . . "As a rule of evidence, section 11 of Rule 108 is also procedural." . . . "The entire rules of evidence have been incorporated into the Rules of Court." And therefore "we can not tear down section 11 of Rule 108 on constitutional grounds without throwing out the whole Code of evidence embodied in these rules." Secondly. Because, "preliminary investigation is not an essential part of due process of law. It may be suppressed entirely, and if this may be done, mere restriction of the privilege formerly enjoyed thereunder can not be held to fall within the constitutional prohibition." Lastly. Because, "the distinction between remedy and 'substantive right' is incapable of exact definition. The difference is somewhat a question of degree" . . . It is difficult to draw a line in any particular case beyond which legislative power over remedy and procedure can pass without touching upon the substantive rights of parties affected, as it is impossible to fix that boundary by general condition. . . . "This being so, it is inevitable that the Supreme Court in making rules should step on substantive rights, and the Constitution must be presumed to tolerate if not to expect such incursion as does not affect the accused in a harsh and arbitrary manner or deprive him of a defense, but operates only in a limited and unsubstantial manner to his disadvantage."

Before proceeding it is necessary to distinguish substantive law from procedure, for the distinction is not always well understood. Substantive law is that part of the law which creates, defines, and regulates rights as opposed to objective or procedural law which prescribes the method of enforcing rights. What constitutes practice and procedure in the law is the mode or proceeding by which a legal right is enforced, "that which regulates the formal steps in an action or judicial proceedings; the course of procedure in courts; the form, manner and order in which proceedings have been, and are accustomed to be had; the form, manner and order of carrying on and conducting suits or prosecutions in the courts through their various sages according to the principles of law and the rules laid down by the respective courts." 31 Cyc. Law and Procedure, p. 1153; id., 32, section 405; Rapalje & Lawrence's Law Dictionary; Anderson Law Dictionary; Bouvier's Law Dictionary. Substantive rights may be created or granted either in the Constitution or in any branch of the law, civil, criminal, administrative or procedural law. In our old Code of Civil Procedure, Act No. 190, as amended, there are provisions which create, define and regulate substantive rights, and many of those provisions such as those relating to guardianship, adoption, evidence and many others are incorporated in the Rules of Court for the sake of convenience and not because this Court is empowered to promulgate them as rules of court. And our old law of Criminal Procedure General Orders No. 58 grants the offended party the right to commence a criminal action or file a complaint against the offender and to intervene in the criminal prosecution against him, and grants the defendant in the Court of First Instance (except in the City of Manila) the right to bail, and to a preliminary investigation including his rights during said investigation, and the rights at the trial, which are now reproduced or incorporated in Rules 106, 108, 110, and 111 of the Rules of Court, except the rights now in question. And all these, and others not necessary for us to mention, are obviously substantive rights. (1) As to the first argument, the premise "the preliminary investigation is eminently and essentially remedial is not correct. Undoubtedly the majority means to say procedural, in line with the conclusion in the resolution, because remedial law is one thing, and procedural law is another. Obviously they are different branches of the law. "Remedial statute" is "a statute providing a remedy for an injury as distinguished from a penal statute. A statute giving a party a mode of remedy for a wrong where he had none or a different one before. . . . Remedial statutes are those which are made to supply such defects, and abridge such superfluities in the common law, as arise either from the

general imperfections of all human law, from change of time and circumstances, from the mistakes and unadvised determination of unlearned (or even learned) judges, or from any other cause whatsoever." (Black's Law Dictionary, third edition, pp. 1525, 1526.) It is also not correct to affirm that section 11 of Rule 108 relating to right of defendant after arrest "is a rule of evidence and therefore is also procedural." In the first place, the provisions of said section to the effect that "the defendant, after the arrest and his delivery to the court has the right to be informed of the complaint or information filed against him, and also to be informed of the testimony and evidence presented against him, and may be allowed to testify and present witnesses or evidence for him if he so desires," are not rules of evidence; and in the second place, it is evident that most of the rules of evidence, if not all, are substantive laws that define, create or regulate rights, and not procedural. "Rules of evidence are substantive rights found in common law chiefly and growing out of reasoning, experience and common sense of lawyers and courts." (State vs. Pavelich, et al., 279 P., 1102.) "It is true that weighing of evidence and the rules of practice with respect thereto form part of the law of procedure, but the classification of proofs is sometime determined by the substantive law." (U. S. vs. Genato, 15 Phil., 170, 176.) How can the law on judicial notice, conclusive as well as juris tantum presumption, hearsay and best evidence rule, parol evidence rule, interpretation of documents, competency of a person to testify as a witness be considered procedural? Therefore, the argumentative conclusion that "we can not tear down section 11 of Rule 108 on constitutional grounds without throwing out the whole code of evidence embodied in these Rules," is evidently wrong, not only for the reason just stated, but because our contention that the defendant can not be deprived of his right to be confronted with and cross-examine the witness of the prosecution is a preliminary investigation under consideration would not, if upheld, necessarily tear down said section. Our theory, is that said section 11 should be so construed as to be valid and effective, that is, that if the defendant asks the court to recall the witness or witnesses for the prosecution to testify again in his presence, and to allow the former to cross-examine the latter, the court or officer making the preliminary investigation is under obligation to grant the request. But if the defendant does not so ask the court, he should be considered as waiving his right to be confronted with and cross-examine the witness against him. (2) With respect to the second argument or reason, it is true that the preliminary investigation as provided for in the General Orders, No.

58, as amended, is not an essential part of due process of law, because "due process of law" is not iron clad in its meaning; its does not necessarily mean a particular procedure. Due process of law simply requires a procedure that fully protects the life, liberty and property. For that reason the investigation to be made by the City Fiscal of the City of Manila under Act No. 612, now section 2465 of the Administrative Code, before filing an information, was considered by this Court as sufficient to satisfy the due process of law constitutional requirement (U. S. vs. Ocampo, 18 Phil., 1; U. S. vs. Grant and Kennedy, 18 Phil., 122). But it is also true that we have already and correctly held that: "The law having explicitly recognized and established that no person charged with the commission of a crime shall be deprived of his liberty or subjected to trial without prior preliminary investigation (provided for in General orders, No. 58, as amended) that shall show that there are reasonable grounds to believe him guilty, there can be no doubt that the accused who is deprived of his liberty, tried and sentenced without the proper preliminary investigation having been made in his regard, is convicted without the process of law," (United States vs. Banzuela, 31 Phil., 564). The ruling in Beazell vs. Ohio, 269 U. S. 167, 70 Law. ed., 216, quoted in the resolution, has no application to the present case, for the question involved therein was the power of Congress to alter the rules of evidence and procedure without violating the constitutional precept that prohibits the passing of ex post facto law, while the question herein involved is the power of the Supreme Court to promulgate rules of pleading, practice and procedure, which diminish the substantive right of a defendant, expressly prohibited by the same provision of the Constitution that confers upon this Court the power to promulgate said rules. (3) The last reason or argument premised on the conclusion that "the distinction between remedy and 'substantive right' is incapable of exact definition;" indeed "the difference is somewhat a question of degree," (Dexter vs. Edmonds, 89 F 487), is immaterial, because, as we have already said in refuting the majority's first reason, remedy and procedure are two completely different things. As above defined, substantive law is clearly differentiated from procedural law and practice. But even assuming arguendo that it is difficult to draw the line in any particular case beyond which the power of the court over procedure can not pass without touching upon the substantial right of the parties, what this Court should do in that case would be to abstain from promulgating such rule of procedure which many increase, diminish or modify substantive right in order to avoid

violating the constitutional prohibition above referred to. Because as this Supreme Court is not empowered by the Constitution to legislate on or abrogate substantive rights, but only to promulgate rules of pleading, practice and procedure which "shall not diminish, increase or modify substantive rights," this Court can not step on them in making the rules, and the Constitution must be presumed not to tolerate nor expect such incursion as would affect the substantive rights of the accused in any manner. Besides, depriving an accused of his right to be confronted and cross-examine the witness against him in a preliminary investigation would affect the accused not in a limited and unsubstantial but in a harsh and arbitrary manner. The testimony of a witness given in the absence of the defendant and without an opportunity on the part of the latter to cross-examine him is a hearsay evidence, and it should not be admitted against the defendant in a preliminary investigation that is granted to the latter as a protection against hasty, malicious and oppressive prosecutions (U. S. vs. Grant and Kennedy, supra). Otherwise, an accused who is innocent and should not be arrested, or if arrested should be released immediately a short time after his arrest after the preliminary investigation, would have to be held for trial and wait for a considerable period of time until the case is tried and acquitted after trial by the Courts of First Instance in provinces on account of the admission of such evidence in the preliminary investigation, evidence not admissible at the trial. Therefore, the motion for reconsideration is granted, and after the necessary proceedings the decision of the majority reversed or modified in accordance with my dissenting opinion. PERFECTO, J.: We dissent. Our opinion in the Dequito case still stands. The motion for reconsideration should be granted.

Footnotes TUASON, J.: Rights of defendant after arrest. After the arrest of the defendant and his delivery to the court, he shall be informed of
1

the complaint or information filed against him. He shall also be informed of the substance of the testimony and evidence presented against him, and, if he desires to testify or to present witnesses or evidence in his favor, he may be allowed to do so. The testimony of the witnesses need not be reduced to writing but that of the defendant shall be taken in writing and subscribed by him. The Supreme Court shall have the power to promulgate rules concerning pleading, practice, and procedure in all courts, and the admission to the practice of law. Said rules shall be uniform for all courts of the same grade and shall not diminish, increase, or modify substantive rights. The existing laws on pleading, practice, and procedure are hereby repealed as statutes, and are declared Rules of Courts, subject to the power of the Supreme Court to alter and modify the same. The National Assembly shall have the power to repeal, alter, or supplement the rules concerning pleading, practice, and procedure, and the admission to the practice of law in the Philippines.
2

Kring v. Missouri, 107 U.S. 221 (1883)

ERROR TO THE SUPREME COURT OF THE STATE OF MISSOURI Syllabus 1. A. was convicted of murder in the first degree, and the judgment of condemnation was affirmed by the Supreme Court of Missouri. A previous sentence pronounced on his plea of guilty of murder in the second degree, and subjecting him to an imprisonment for twenty-five years, had, on his appeal, been reversed and set aside. By the law of Missouri in force when the homicide was committed, this sentence was an acquittal of the crime of murder in the first degree, but before his plea of guilty was entered the law was changed, so that by force of its provisions, if a judgment on that plea be lawfully act aside, it shall not be held to be an acquittal of the higher crime. Held that as to this case, the new law was an ex post facto law within the meaning of Section 10, Article I, of the Constitution of the United States, and that he could not be again tried for murder in the first degree. 2. The history of the ex post facto clause of the Constitution reviewed in connection with its adoption as a part of the Constitution and with its subsequent construction by the federal and the state courts. 3. The distinction between retrospective laws, which relate to the remedy or the mode of procedure, and those which operate directly on the offense, is unsound where, in the latter case, they injuriously affect any substantial right to which the accused

was entitled under the law as it existed when the alleged offense was committed. 4. Within the meaning of the Constitution, any law is ex post facto which is enacted after the offense was committed and which, in relation to it or its consequences, alters the situation of the accused to his disadvantage. The case is stated in the opinion of the Court. MR. JUSTICE MILLER delivered the opinion of the Court. This is a writ of error to the Supreme Court of Missouri. The plaintiff in error was indicted in the Criminal Court of St. Louis for murder in the first degree, charged to have been committed January 4, 1875, to which he pleaded not guilty. He has been tried four times before a jury, and sentenced once on plea of guilty of murder in the second degree. His case has been three times before the court of appeals of that state and three times before the supreme court of the state. In the last instance, the supreme court affirmed the judgment of the criminal court, by which he was found guilty Page 107 U. S. 222 of murder in the first degree and sentenced to be hung, and it is to this judgment that the present writ of error is directed. It is to be premised that the court of appeals is an intermediate appellate tribunal between the Criminal Court of St. Louis and the supreme court of the state, to which all appeals of this character are first taken.

At the trial immediately preceding the last one in the court of original jurisdiction, the prisoner was permitted to plead guilty to murder in the second degree, which plea was accepted by the prosecuting attorney and the court, and on this plea he was sentenced to imprisonment in the penitentiary for twenty-five years. He took an appeal from this judgment on the ground that he had an understanding with the prosecuting attorney that if he would plead as he did, his sentence should not exceed ten years' imprisonment, and the supreme court reversed that judgment and remanded the case to the St. Louis Criminal Court for further proceedings. In that court, when the case was again called, the defendant refused to withdraw his plea of guilty of murder in the second degree, and refused to renew his plea of not guilty, which had been withdrawn when he pleaded guilty to murder in the second degree, and the court, against his remonstrance, made an order setting aside his plea of guilty of murder in the second degree and ordered a general plea of not guilty to be entered. On this plea he was tried by a jury and found guilty and sentenced to death, as we have already said, which judgment was affirmed by the supreme court of the state. By refusing to plead not guilty to murder in the first degree and to withdraw his plea of guilty in the second degree, defendant raised the point that the proceedings under that plea, namely its acceptance by the prosecuting attorney and the court, and his conviction and sentence under it, was an acquittal of the charge of murder in the first degree, and that he could not be tried again for that offense. This point he insisted on in the

circuit court, and relied on it for reversing the judgment in the court of appeals and in the supreme court. Both these latter tribunals, in the opinions delivered by them and which are part of the record, conceded that such was the law of the State of Missouri at the time the homicide was committed. But they overruled the defense on the ground that by sec. 23, art. Page 107 U. S. 223 2 of the Constitution of Missouri, which took effect November 30, 1875, that law was abrogated, and for this reason defendant could be tried for murder in the first degree notwithstanding his conviction and sentence for murder in the second degree. As after the commission of the crime for which he was indicted this new constitution was adopted, and as it is construed by the court of appeals and the supreme court, it changes the law as it then stood to the disadvantage of the defendant, the jurisdiction of this Court is invoked on the ground that, as to this case and as so construed, it is an ex post facto law within the meaning of Section 10, Article I, of the Constitution of the United States. That it may be clearly seen what the Supreme Court of Missouri decided on this subject and what consideration they gave it, we extract here all that is said in their opinion about it. "There is nothing in the point," they say, "that after an accepted plea of guilty of murder of the second degree the defendant could not be put upon trial for murder of

the first degree. We shall, on that proposition, accept what is said by the court of appeals in its opinion in this cause." What that court said on this subject is as follows: "The theory of counsel for defendant that a plea of guilty of murder in the second degree, regularly entered and received, precludes the state from afterwards prosecuting the defendant for murder in the first degree, is inconsistent with the ruling of the supreme court in State v. Kring, 71 Mo. 551, and in State v. Stephens, id., 535. The declarations of defendant that he would stand upon his plea already entered were all accompanied with a condition that the court should sentence him for a term not to exceed ten years, in accordance with an alleged agreement with the prosecuting attorney, which the court would not recognize. The prisoner did not stand upon his plea of guilty of murder in the second degree; he must therefore be taken to have withdrawn that plea, and, as he refused to plead, the court properly directed the plea of not guilty of murder in the first degree to be entered." "Formerly it was held in Missouri (State v. Ross, 20 Mo. 32) that when a conviction is had of murder in the second degree on an indictment charging murder in the first degree, if this be set aside, the defendant cannot again be tried for murder Page 107 U. S. 224 in the first degree. A change introduced by 23 of article 2 of the Constitution of 1875 has abrogated this rule. On the oral argument, something was said by counsel for the defendant to the effect that under the old rule, defendant could not be put on

his trial for murder in the first degree, and that he could not be affected by the change of the constitutional provision, the crime having been committed while the old Constitution was in force. There is, however, nothing in this; this change is a change not in crimes, but in criminal procedure, and such changes are not ex post facto. Gut v. State, 9 Wall. 35; Cummings v. Missouri, 4 Wall. 326." We have here a distinct admission that by the law of Missouri, as it stood at the time of the homicide, in consequence of this conviction of the defendant of the crime of murder in the second degree, though that conviction be set aside, he could not be again tried for murder of the first degree, and that, but for the change in the constitution of the state, such would be the law applicable to his case. When the attention of the court is called to the proposition that if such effect is given to the change of the constitution, it would in this case be liable to objection as an ex post facto law, the only answer is that there is nothing in it, as the change is simply in a matter of procedure. Whatever may be the essential nature of the change, it is one which, to the defendant, involves the difference between life and death, and the retroactive character of the change cannot be denied. It is to be observed that the force of the argument for acquittal does not stand upon defendant's plea, nor upon its acceptance by the state's attorney, nor the consent of the court; but it stands upon the judgment and sentence of the court by which he is convicted of murder in the second degree, and sentence pronounced according to the law of that guilt, which was by operation of the same law an acquittal of the other and higher

crime of murder charged in the same indictment. It is sufficient for this case that the Supreme Court of Missouri, in the opinion we are examining, says it was so, and cites as authority for it the case of State v. Ross, 29 Mo. 32, in the same court; but counsel for plaintiff in error cites to the same Page 107 U. S. 225 effect the cases of State v. Ball, 27 Mo. 327; State v. Smith, 53 Mo. 139. Blackstone says: "The plea of autrefois convict, or a former conviction for the same identical crime, through no judgment was ever given, or, perhaps, will be (being suspended by benefit of clergy or other causes), is a good plea in bar to an indictment. And this depends upon the same principle as the former -- that is, autrefois acquit, -- that no man ought to be twice brought in danger of his life for one and the same crime. Hereupon it has been held that a conviction of manslaughter on an appeal or indictment is a bar even in another appeal, and much more in an indictment for murder, for the fact prosecuted is the same in both, though the offenses differ in coloring and degree." Bl.Com. Book 4, 336. See State v. Norvill, 2 Yerg. (Tenn.) 24; 9 id. 333, 337. This law, in force at the date of the homicide for which Kring is now under sentence of death, was changed by the State of Missouri between that time and his trial so as to deprive him of its benefit, to which he would otherwise have been entitled, and we are called on to decide whether in this respect and as

applied by the court to this case, it is an ex post facto law within the meaning of the Constitution of the United States. There is no question of the right of the State of Missouri, either by the her fundamental law or by an ordinary act of legislation, to abolish this rule, and that it is a valid law as to all offenses committed after its enactment. The question here is does it deprive the defendant of any right of defense which the law gave him when the act was committed, so that, as to that offense, it is ex post facto. This term necessarily implies a fact or act done after which the law in question is passed. Whether it is ex post facto or not relates, in criminal cases, to which alone the phrase applies, to the time at which the offense charged was committed. If the law complained of was passed before the commission of the act with which the prisoner is charged, it cannot. As to that offense, be an ex post facto law. If passed after the commission of the offense, it is as to thatex post facto, though whether of the class forbidden by the Constitution may depend on other Page 107 U. S. 226 matters. But so far as this depends on the time of its enactment, it has reference solely to the date at which the offense was committed to which the new law is sought to be applied. No other time or transaction but this has been in any adjudged case held to govern its ex post facto character. In the case before us, an argument is made founded on a change in this rule. It is said the new law in Missouri is not ex post facto because it was in force when the plea and judgment were entered of guilty of murder in the second degree, thus

making its character as an ex post facto law to depend not upon the date of its passage as regards the commission of the offense, but as regards the time of pleading guilty. That as the new law was in force when the conviction on that plea was had, its effect as to future trials in that case must be governed by that law. But this is begging the whole question, for if it was, as to the offense charged, an ex post facto law within the true meaning of that phrase, it was not in force and could not be applied to the case, and the effect of that plea and conviction must be decided as though no such change in the law had been made. Such, however, is not the ground on which the supreme court and the court of appeals placed their judgment. "There is nothing,' say they, 'in this; the change is a change not in crimes, but in criminal procedure, and such changes are not ex post facto." Before proceeding to examine this proposition, it will be well to get some clear perception of the purpose of the convention which framed the Constitution in declaring that no state shall pass any ex post facto law. It was one of the objections most seriously urged against the new constitution by those who opposed its ratification by the states that it contained no formal Bill of Rights. Federalist, No. 84. And the State of Virginia accompanied her ratification by the recommendation of an amendment embodying such a bill. 3 Elliott's Debates 661.

The feeling on this subject led to the adoption of the first ten amendments to that instrument at one time, shortly after the government was organized. These are all designed to operate as restraints on the general government, and most of Page 107 U. S. 227 them for the protection of private rights of persons and property. Notwithstanding this reproach, however, there are many provisions in the original instrument of this latter character, among which is the one now under consideration. So much importance did the convention attach to it that it is found twice in the Constitution -- first as a restraint upon the power of the general government and afterwards as a limitation upon the legislative power of the states. This latter is the first clause of Section 10 of Article I, and its connection with other language in the same section may serve to illustrate its meaning: "No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts; or grant any title of nobility." It will be observed that here are grouped contiguously a prohibition against three distinct classes of retrospective laws -namely bills of attainder, ex post facto laws, and laws impairing the obligations of contracts. As the clause was first adopted, the words concerning contracts were not in it, because it was

supposed that the phrase "ex post facto law" included laws concerning contracts as well as others. But it was ascertained before the completion of the instrument that this was a phrase which, in English jurisprudence, had acquired a signification limited to the criminal law, and the words "or any law impairing the obligation of contracts" were added to give security to rights resting in contracts. 2 Bancroft's History of the Constitution 213. Sir Thomas Tomlin, in that magazine of learning, the English edition of 1835 of his Law Dictionary, says: "Ex post facto is a term used in the law signifying something done after, or arising from or to affect, another thing that was committed before." "An ex post facto law is one which operates upon a subject not liable to it at the time the law was made." The first case in which this Court was called upon to construe this provision of the Constitution was that of Calder v. Bull, 3 Dall. 386, decided in 1798. The opinion of the Court was delivered Page 107 U. S. 228 by Mr. Justice Chase, and its main purpose was to decide that it had no application to acts concerning civil rights. The opinion, however, is important, as it discusses very fully the meaning of the provision in its application to criminal cases. It defines four distinct classes of laws embraced by the clause: "1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and

punishes such action. 2d. Every law that aggravates the crime of makes it greater than it was when committed. 3d. Every law that changes the punishment and inflicts a greater punishment than was annexed to the crime when committed. 4th. Every law that alters the legal rules of evidence and receives less or different testimony than the law required at the time of the commission of the offense in order to convict the offender." Again, he says: "But I do not consider any law ex post facto within the prohibition that modifies the rigor of the law, but only these that create or aggravate the crime or increase the punishment or change the rules of evidence for the purpose of conviction." In the case before us, the Constitution of Missouri so changes the rule of evidence that what was conclusive evidence of innocence of the higher grade of murder when the crime was committed -- namely a judicial conviction for a lower grade of homicide -- is not received as evidence at all, or, if received, is given no weight in behalf of the offender. It also changes the punishment, for whereas the law, as it stood when the homicide was committed, was that when convicted of murder in the second degree, he could never be tried or punished by death for murder in the first degree, the new law enacts that he may be so punished notwithstanding the former conviction. But it is not to be supposed that the opinion in that case undertook to define by way of exclusion all the cases to which the constitutional provision would be applicable. Accordingly, in a subsequent case tried before Mr. Justice Washington, he said in his charge to the jury that

"An ex post facto law is one which in its operation makes that criminal which was not so at the time the action was performed, or which increases the punishment, or, in short, which, in relation to the offense or its consequences, alters the situation of Page 107 U. S. 229 a party to his disadvantage." United States v. Hall, 2 Wash. 366. He adds by way of application to that case, which was for a violation of the embargo laws: "If the enforcing law applies to this case, there can be no doubt that so far as it takes away or impairs the defense which the law had provided the defendant at the time when the condition of this bond became forfeited, it is ex post facto and inoperative." This case was carried to the Supreme Court and the judgment affirmed. 10 U. S. 6Cranch 171. The new constitution of Missouri does not take away what, by the law of the state when the crime was committed, was a good defense to the charge of murder in the first degree. In the subsequent cases of Cummings v. State of

against the government of the United States was an ex post facto law because it punished, in a manner not before punished by law, offenses committed before its passage, and because it instituted a new rule of evidence in aid of conviction. Though this Court was divided in that case, it was because the minority were of the opinion that the act in question was not a crimes act, and that it inflicted no punishment, in the judicial sense, for any past crime, and they did not controvert the proposition that it was an ex post facto law if it had that effect. In these cases, we have illustrations of the liberal construction which this Court and Mr. Justice Washington in the circuit court have given to the words "ex post facto law" -- a construction in manifest accord with the purpose of the constitutional convention to protect the individual rights of life and liberty against hostile retrospective legislation. Nearly all the states of the Union have similar provisions in their constitutions, and whether they have or not, they all recognize the obligatory force of this clause of the federal Constitution on their legislation. A reference to some decisions of those courts will show the Page 107 U. S. 230 same liberality of construction of the provision, many of them going much further than is necessary to go in this case to show the error of the Missouri courts. In Commonwealth v. McDonough, 13 Allen (Mass.) 581, it was held that a law passed after the commission of the offense of which defendant stood charged which mitigated the punishment as regarded the fine and the maximum of imprisonment that

Missouri and Ex Parte Garland, 4 Wall. 71 U. S. 277, 71 U. S. 333, this Court held that a law which excluded a minister of the gospel from the exercise of his clerical function and a lawyer from practice in the courts unless each would take an oath that they had not engaged in or encouraged armed hostilities

might be inflicted was an ex post facto law as to that case because the minimum of imprisonment was made three months, whereas before, there was no minimum limit to the court's discretion. This slight variance in the law was held to make it ex post facto and void as to that case, though the effect of the decision was to leave no law by which the defendant could be punished, and he was discharged, though found guilty of the offense. In the case of Hartung v. People, 22 N.Y. 95, after the prisoner had been convicted of murder and sentenced to death and while her case was pending on appeal, the legislature of that state changed the law for the punishment of murder in general so as to authorize the governor to postpone indefinitely the execution of the sentence of death and to keep the party confined in the penitentiary at hard labor until he should order the full execution of the sentence or should pardon or commute it. The Court of Appeals held that while this later law repealed all existing punishments for murder, it was ex post facto as to Mrs. Hartung's case, and could not be applied to it, and this was decided in face of the fact that it resulted in the discharge of a convicted murderess without any punishment at all. Judge Denio, in delivering the opinion of the court, makes these excellent observations: "It is highly probable that it was the intention of the legislature to extend favor, rather than increased severity, toward this convict and others in her situation, and it is quite likely that had they been consulted, they would have preferred the application of this law to their cases, rather than that which existed when

they committed the offenses of which they were convicted. But the case cannot be determined upon such considerations. No one can be criminally punished in this country Page 107 U. S. 231 except according to a law prescribed for his government by the sovereign authority before the imputed offense was committed and which existed as a law at that time. It would be useless to speculate upon the question whether this would be so upon the reason of the thing, and according to the spirit of our legal institutions, because the rule exists in the form of an express written precept, the binding force of which no one disputes. No state shall pass any ex post facto law is the mandate of the Constitution of the United States." This is reaffirmed by the same court in the cases of Shepherd v. People, 25 N.Y. 406;Green v. Shumway, 39 N.Y. 418, and In re Petty, 22 Kan. 477, decides the same thing. In State v. Keith, 63 N.C. 140, the Supreme Court of that state held that a law repealing a statute of general amnesty for offenses arising out of the rebellion was ex post facto and void, though both statutes were passed after the acts were committed with which defendant was charged. In State v. Sneed, 25 Tex.Supp. 66, the court held that in a criminal case barred by the statute of limitations, a subsequent statute which enlarged the time necessary to create a bar was, as to that case, an ex post facto law, and it could not be supposed to be intended to apply to it.

When, in answer to all this evidence of the tender regard for the rights of a person charged with crime under subsequent legislation affecting those rights, we are told that this very radical change in the law of Missouri to his disadvantage is not subject to the rule because it is a change not in crimes, but in criminal procedure, we are led to inquire what that court meant by criminal procedure. The word "procedure," as a law term, is not well understood, and is not found at all in Bouvier's Law Dictionary, the best work of the kind in this country. Fortunately a distinguished writer on criminal law in America has adopted it as the title to a work of two volumes. Bishop on Criminal Procedure. In his first chapter, he undertakes to define what is meant by procedure. He says: "S. 2. The term 'procedure' is so broad in its signification that it is seldom employed in our books as a term of art. It includes in its meaning whatever is embraced by the three technical terms, 'pleading,' 'evidence,' and 'practice.' Page 107 U. S. 232 And in defining 'practice' in this sense, he says 'the word means those legal rules which direct the course of proceeding to bring parties into the court and the course of the court after they are brought in;' and 'evidence,' he says, as part of procedure," "signifies those rules of law whereby we determine what testimony is to be admitted and what rejected in each case, and what is the weight to be given to the testimony admitted."

If this be a just idea of what is intended by the word "procedure" as applied to a criminal case, it is obvious that a law which is one of procedure may be obnoxious as anex post facto law, both by the decision in Calder v. Bull, 3 Dall. 386, and in Cummings v. Missouri, 4 Wall. 277, for in the former case, this Court held that "any law which alters the legal rules of evidence, and receives less or different testimony than the law requires at the time of the commission of the offense in order to convict the offender" is an ex post facto law, and in the latter, one of the reasons why the law was held to beex post facto was that it changed the rule of evidence under which the party was punished. But it cannot be sustained without destroying the value of the constitutional provision that no law, however it may invade or modify the rights of a party charged with crime, is an ex post facto law within the constitutional provision if it comes within either of these comprehensive branches of the law designated as "pleading," "practice," and "evidence." Can the law with regard to bail, to indictments, to grand juries, to the trial jury, all be changed by state legislation, after the offense committed, to the disadvantage of the prisoner, and not held to be ex post facto because it relates to procedure, as it does according to Mr. Bishop? And can any substantial right which the law gave the defendant at the time to which his guilt relates be taken away from him by ex post facto legislation, because, in the use of a modern phrase, it is called a law of procedure? We think it cannot.

Some light may be thrown upon this branch of the argument by recurrence to a few of the numerous decisions of the highest courts construing the associated phrase in the same sentence Page 107 U. S. 233 of the Constitution which forbids the states to pass any law impairing the obligation of contracts. It has been held that this prohibition also relates exclusively to laws passed after the contract is made, and its force has been often sought to be evaded by the argument that laws are not forbidden which affect only the remedy, if they do not change the nature of the contract or act directly upon it. The analogy between this argument and the one concerning laws of procedure, in relation to the contiguous words of the Constitution, is obvious. But while it has been held that a change of remedy made after the contract may be valid, it is only so when there is substituted an adequate and sufficient remedy by which the contract may be enforced, or where such remedy existed and remained unaffected by the new law.Tennessee v. Sneed, 96 U. S. 69. On this point it has been held that laws are void enacted after the date of the contract: 1. Which give the debtor a longer stay of execution after judgment. Blair v. Williams, 4 Litt. (Ky.) 34; McKinney v. Carroll, 5 Mon. (Ky.) 98. 2. Which require on a sale of his property under execution an appraisement, and a bid of two-thirds the value so

ascertained. Bronson v. Kinzie, 1 How. 311; McCracken v. Hayward, 2 How. 608; Sprott v. Reid, 3 Greene (Iowa) 489. 3. Which allow a period of redemption after such sale. Lapsley v. Brashear, 4 Litt. (Ky.) 47; Cargill v. Power, 1 Mich. 369; Robinson v. Howe, 13 Wis. 341. 4. Which exempt from sale under judgment for the debt a larger amount of the debtor's property than was exempt when the debt was contracted. Edwards v. Kearney, 96 U. S. 595, and the cases there cited; Story's Commentary on the Constitution, sec. 1385. There are numerous similar decisions showing that a change of the law which hindered or delayed the creditor in the collection of his debt, though it related to the remedy or mode of procedure by which that debt was to be collected, impaired the obligation of the contract within the meaning of the Constitution. Why are not the rights of life and liberty as sacred as the right of contract? Why should not the contiguous Page 107 U. S. 234 and associated words in the Constitution relating to retroactive laws on these two subjects be governed by the same rule of construction? And why should a law equally injurious to the rights of the party concerned be under the same circumstances void in one case and not in the other? But it is said that at the time the prisoner pleaded guilty of the second degree of murder, and at the time he procured the reversal of the judgment of the criminal court on that plea, the

new constitution was in force, and he was bound to know the effect of the change of the law on his case. We do not controvert the principle that he was bound to know and take notice of the law. But as regards the effect of the plea and the judgment on it, the Constitution of Missouri made no change. It still remained the law of Missouri, as it is the law of every state in the Union, that so long as the judgment rendered or that plea remained in force, or after it had been executed, the defendant was liable to no further prosecution for any charge found in that indictment. Such was the law when the crime was committed, such was the law when he pleaded guilty, such is the law now in Missouri and everywhere else. So that, in pleading guilty under an agreement for ten years' imprisonment, both he and the prosecuting attorney and the court all knew that the result would be an acquittal of all other charges but that of murder in the second degree. Did he waive or annul this acquittal by prosecuting his writ of error? Certainly not by that act, for if the judgment of the lower court sentencing him to twenty-five years' imprisonment had been affirmed, no one will assert that he could still have been tried for murder in the first degree. Nor was there anything else done by him to waive this acquittal. He refused to withdraw his plea of guilty. It was stricken out by order of the court against his protest. He refused then to plead not guilty, and the court in like manner, against his protest, ordered a general plea of not

guilty to be filed. He refused to go to trial on that plea, and the court forced him to trial. The case rests, then, upon the proposition that, having an Page 107 U. S. 235 erroneous sentence rendered against him on the plea accepted by the court, he could only take the steps which the law allowed him to reverse that sentence at the hazard of subjecting himself to the punishment of death for another and a different offense of which he stood acquitted by the judgment of that court; that he prosecuted his legal right to a review of that sentence with a halter around his neck when, if he succeed in reversing it, the same court could tighten it to strangulation, and if he failed, it did him no good. And this is precisely what has occurred. His reward for proving the sentence of the court of twenty-five years' imprisonment (not its judgment on his guilt) to be erroneous is that he is now to be hanged, instead of imprisoned in the penitentiary. No such result could follow a writ of error before, and as to this effect, the new constitution is clearly ex post facto. The whole error which results in such a remarkable conclusion arises from holding the provision of the new constitution applicable to this case when the law is ex post facto and inapplicable to it. If Kring or his counsel were bound to know the law when they prosecuted the writ of error, they were bound to know it as we have expounded it. If they knew that by the words of the new constitution, such a judgment of acquittal as he had when he undertook to reverse it would be no longer an acquittal after it

was reversed, they also knew that, being as to his case an ex post facto law, it could have no such effect on that judgment. We are of opinion that any law passed after the commission of an offense which, in the language of Mr. Justice Washington, in United States v. Hall, "in relation to that offense, or its consequences, alters the situation of a party to his disadvantage" is an ex post facto law, and in the language of Denio, J., in Hartung v. People, "No one can be criminally punished in this country except according to a law prescribed for his government by the sovereign authority before the imputed offense was committed and which existed as a law at the time." Tested by these criteria, the provision of the Constitution of Missouri which denies to plaintiff in error the benefit which the previous law gave him of acquittal of the charge of murder in the first degree on conviction of murder in the second Page 107 U. S. 236 degree is, as to his case, an ex post facto law within the meaning of the Constitution of the United States, and for the error of the Supreme Court of Missouri in holding otherwise, its judgment is reversed and the case is remanded to it with direction to reverse the judgment of the Criminal Court of St. Louis and for such further proceedings as are not inconsistent with this opinion, and it is So ordered.

MR. JUSTICE MATTHEWS, with whom concurred MR. CHIEF JUSTICE WAITE, MR. JUSTICE BRADLEY, and MR. JUSTICE GRAY, dissenting. THE CHIEF JUSTICE WAITE, MR. JUSTICE BRADLEY, MR. JUSTICE GRAY, and myself are unable to concur in the judgment and opinion of the Court in this case, and the importance of the question determined constrains us to state the grounds of our dissent. The material facts are these: The plaintiff in error, at March term, 1875, of the St. Louis Criminal Court, was indicted for murder in the first degree. On his arraignment, he pleaded "not guilty." At the November term of the same year, a trial was had which resulted in a verdict of guilty of murder in the first degree and a sentence of death. That judgment was reversed on appeal, and twice subsequently there were mistrials. On November 12, 1879, the defendant, by consent of the circuit attorney and leave of the court, withdrew his plea of not guilty and entered a plea of guilty of murder in the second degree. He was thereupon sentenced to imprisonment in the penitentiary for a term of twenty-five years. The prisoner then filed a motion to set aside this judgment and sentence, and to allow him to withdraw the plea of guilty of murder in the second degree and to permit him "to have his original plea of not guilty entered to record, to the end that he may have a trial upon the merits of his case before a jury." In support of this motion reasons were assigned, in substance, that he had withdrawn his original plea of not guilty and entered the plea of guilty of murder in the second degree upon the faith of an understanding previously had with the circuit attorney, representing the prosecution, that if he would

do so the sentence should not exceed ten years in the penitentiary, which understanding Page 107 U. S. 237 was violated by the sentence complained of. The court overruled the motion, but upon appeal the judgment was reversed on the ground alleged by the prisoner that he had been misled, and the cause was remanded for further proceedings. On receipt of this mandate, the trial court, the prisoner refusing to withdraw his plea of guilty of murder in the second degree and to enter a plea of not guilty, entertained the motion previously made by him, for refusing to grant which the judgment had thus been reversed, and granted it, setting aside the plea of guilty, and, the prisoner standing mute, ordered a plea of not guilty to be entered. On this plea a trial was had at October term, 1881, when the prisoner was found guilty of murder in the first degree and again sentenced to death. An appeal was prosecuted from this judgment, which, however, was affirmed by the Supreme Court of Missouri, and is brought here for examination by the present writ of error on the ground that it has been rendered in violation of a right secured to the plaintiff in error by the Constitution of the United States. The right which it is alleged has been violated is supposed to arise in this way. At the time of the commission of the offense in 1875, it was well established as the law of Missouri by the decisions of the supreme court of the state that "when a person is indicted for murder in the first degree, and is put upon his trial and convicted of murder in the second degree, and a new trial is ordered at his instance, he cannot legally be

put upon his trial again for the charge of murder in the first degree; he can be put upon his trial only upon the charge of murder in the second degree." State v. Ross, 29 Mo. 32; State v. Smith, 53 Mo. 139. And it is not denied that a plea of guilty of murder in the second degree, accepted by the state, would have been at that time equally an acquittal of the charge of murder in the first degree, having the same force as to future trials as a conviction of murder in the second degree, although the judgment should be reversed on the application of the prisoner. On November 30, 1875, the State of Missouri adopted a new constitution, which contained (sec. 23, art. 2) the provision that "If judgment on a verdict of guilty be reversed for error in law, nothing herein contained shall prevent a new trial of the Page 107 U. S. 238 prisoner on a proper indictment or according to correct principles of law." In the case of State v. Sims, 71 Mo. 538, it was decided that this provision overthrows the rule laid down in the case of State v. Ross, ubi supra, and was "equivalent to declaring that when such judgment is reversed for error at law, the trial had is to be regarded as a mistrial, and that the cause, when remanded, is put on the same footing as a new trial as if the cause had been submitted to a jury, resulting in a mistrial by the discharge of the jury in consequence of their inability to agree on a verdict."

The rule thus introduced by the Constitution of 1875 was the one applied in the trial of the prisoner, instead of that previously in force, and the contention is that to apply it in a case such as the present, where the alleged offense was committed prior to the adoption of the new constitution, is to give it operation as an ex post facto law in violation of the prohibition of the Constitution of the United States. In examining this proposition it must constantly be borne in mind that the plea of guilty of murder in the second degree, the legal effect of which, when admitted, is the precise subject of the question, was entered long after the new rule established by the Constitution of Missouri took effect; that the prisoner himself moved to set it aside and for leave to renew his plea of not guilty on the ground that he had been misled into making his plea of guilty under circumstances that would make it operate as a fraud upon his rights if it were permitted to stand, and that because the court denied this motion, he made and prosecuted his appeal for a reversal of its judgment in full view of the rule, then in force, of the application of which he now complains, which expressly declared what should be the effect of such a reversal. The classification of ex post facto laws first made by Mr. Justice Chawe in Calder v. Bull,3 Dall. 386, 3 U. S. 390, seems to have been generally accepted. It is as follows: "1st, Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action. 2d, Every law that aggravates a crime or

makes it greater than it was when committed. 3d, Every law that Page 107 U. S. 239 changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed. 4th, Every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offense, in order to convict the offender." This definition was the basis of the opinion of the Court in the cases of Cummings v. State, 4 Wall. 277, and Ex Parte Garland, 4 Wall. 333, and was expressly relied on in the opinion of the dissenting judges, which says: "This exposition of the nature of ex post facto laws has never been denied, nor has any court or any commentator on the Constitution added to the classes of laws here set forth, as coming within that clause of the organic law." P. 71 U. S. 391. Now under which of these heads does the controverted rule of the Missouri Constitution fall? It cannot be contended that it is embraced in either of the first three. If in any, it must be covered by the fourth. But what rule of evidence existing at the time of the commission of the offense is altered to the disadvantage of the prisoner? The answer made is this: that at that time, an accepted plea of guilty of murder in the second degree was conclusive proof that the prisoner was not guilty of murder in the first degree, and that it was abrogated so as to deprive the prisoner of the benefit of it. But while that rule was

in force, the prisoner had no such evidence of which he could avail himself. How, then, has he been deprived of any benefit from it? He had not, during the period while the rule was in force, entered any plea of guilty of murder in the second degree, and no such plea had been admitted by the state. All that can be said is that if, while the rule was in force, he had entered such a plea with the consent of the state, its legal effect would have been as claimed, and by its change he has lost what advantage he would have had in such a contingency. But it does not follow that such a contingency would have happened. It was not within the power of the prisoner to bring it about, for it required the concurrence and consent of the state, and it cannot be assumed that under such a rule and in such case that consent would have been given. It is not enough to say that under a ruling of the court, a party might have enough to say that, under a ruling of the court, a party might have lost the benefit of certain evidence, Page 107 U. S. 240 if such evidence had existed. To predicate error in such a case, it must be shown that the party had evidence of which in fact he has been illegally deprived. Such a case would have been presented here if the plea of guilty of murder in the second degree had been entered and accepted before the Constitution of 1875 took effect and while the old rule was in force. Then the law would have taken effect upon the transaction between the prisoner and the prosecution in the acceptance of his plea; the status of the prisoner would have been fixed and declared; he would have stood acquitted of record of the charge of murder in the first degree, and the new rule would have been an ex post

factolaw if it had made him liable to conviction and punishment for an offense of which by law he had been declared to be innocent. But in the circumstances of the present case, the evidence of which it is said the prisoner has been deprived came into being after the law had been changed. It was evidence created by the law itself, for it consists simply in a technical inference, and the law in force when it was created necessarily determines its quality and effect. That law did not operate upon the offense to change its character, nor upon its punishment to aggravate it, nor upon the evidence which, according to the law in force at the time of its commission, was competent to prove or disprove it. It operated upon a transaction between the prisoner and the prosecution which might or might not have taken place, which could not take place without mutual consent, and when it did take place, that consent must be supposed to have been given by both with reference to the law as it then existed and not with reference to a law which had then been repealed. It is the essential characteristic of an ex post facto law that it should operate retrospectively so as to change the law in respect to an act or transaction already complete and past. Such is not the effect of the rule of the Constitution of Missouri now in question. As has been shown, it does not in any particular affect the crime charged either in its definition, punishment, or proof. It simply declares what shall be the legal effect in the future of acts and transactions thereafter taking place. It enacts that any future erroneous and unlawful Page 107 U. S. 241

conviction for a less offense, thereafter reversed on the application of the accused, shall be held for naught to all intents and purposes, and shall not after such reversal operate as a technical acquittal of any higher grade of crime for which there might have been a conviction under the same indictment. It imposes upon the prisoner no penalty or disability. It cannot affect the case of any individual except upon his own request, for he must take the first step in its application. When he pleads guilty of murder in the second degree, he knows that its acceptance cannot operate as an acquittal of the higher offense. When he asks to have the conviction reversed, he understands that if his application is granted, the judgment must be set aside with the same effect as if it had never been rendered. It does not touch the substance or merits of his defense, and is in itself a sensible and just rule in criminal procedure. And "so far as mere modes of procedure are concerned," says Judge Cooley, Const.Lim. 272, "A party has no more right in a criminal than in a civil action to insist that his case shall be disposed of under the law in force when the act to be investigated is charged to have taken place. Remedies must always be under the control of the legislature, and it would create endless confusion in legal proceedings if every case was to be conducted only in accordance with the rules of practice, and heard only by the courts in existence, when its facts arose. The legislature may abolish courts and create new ones, and it may prescribe altogether different modes of procedure in its discretion, though it cannot lawfully, we think, in so doing, dispense with any of those substantial protections with which the existing law surrounds the person

accused of crime. Statutes giving the government additional challenges, and others which authorized the amendment of indictments, transactions, have as been sustained would and be applied similar to past doubtless any statute

calculated merely to improve the remedy, and in its operation working no injustice to the defendant and depriving him of no substantial right." Accordingly, it was held by this Court in Gut v. State, 9 Wall. 35, in the language of MR. JUSTICE FIELD, delivering its opinion, that "A law changing the place of trial from one county to another Page 107 U. S. 242 county in the same district, or even to a different district from that in which the offense was committed or the indictment found, is not an ex post facto law, though passed subsequent to the commission of the offense or the finding of the indictment." And in the case of Ex Parte McCardle, 7 Wall. 506, it was the unanimous decision of the Court that it was competent for Congress, in a case affecting personal liberty, to deprive the complaining party of the benefit of an appeal from the judgment of an inferior court after his appeal had taken effect and while it was pending. It would have been equally competent for the Constitution of Missouri to have declared that no appeal or writ of error should thereafter be allowed to reverse the judgment of the court of original jurisdiction in any pending criminal cause, which certainly would be giving a different, because irreversible, effect to that judgment from what such judgments would have

had under the law in force when the offense was committed. If it be true in the logic of the law, as it is in all its other applications, that the greater includes the less, then it was competent for that constitution to provide that as to all judgments in criminal cases thereafter rendered which should be reversed for error on the appeal of the defendant, the effect of the reversal should be such as not to be a bar to a subsequent conviction for any crime described in the indictment, for that would have been to say not that there shall be no appeal at all, but that if an appeal is taken, its effect shall only be such as is prescribed in the law allowing it. In Commonwealth v. Holley, 3 Gray (Mass.) 458, Shaw, C.J., said: "The object of the declaration of rights was to secure substantial privileges and benefits to parties criminally charged, not to require particular forms except where they are necessary to the purposes of justice and fair dealing toward persons accused, so as to ensure a full and fair trial." And in Commonwealth v. Hall, 97 Mass. 570, the court,

it leaves the defendant fully and fairly informed of the nature of the charge against him and affords him ample opportunity for interposing every meritorious defense. Technical and formal objections of this nature are not constitutional rights." These observations, it is not necessary to point out, are entirely applicable to the present argument. Still stronger and more to the point is what was said by Shaw, C.J., in Jacquins v. Commonwealth, 9 Cush. (Mass.) 279, where it was held that a statute authorizing the Supreme Judicial Court, on a writ of error, on account of error in the sentence, to render such judgment therein as should have been rendered, applied to past judgments, and was not, on that account, an ex post facto law. That eminent judge said: "It was competent for the legislature to take away writs of error altogether in cases where the irregularities are formal and technical only, and to provide that no judgment should be reversed for such cause. It is more favorable to the party to provide that he may come into court upon the terms allowed by this statute than to exclude him altogether. This act operates like the act of limitations. Suppose an act was passed that no writ of error should be taken out after the lapse of a certain period. It is contended that such an act would be unconstitutional on the ground that the right of the convict to have his sentence reversed upon certain conditions had once vested. But this argument overlooks entirely the well settled distinction between rights and remedies." Precisely the same distinction between laws ex post facto and those which merely affect the remedy, and are therefore

speaking of a statutory provision authorizing the amendment of indictments so as to allege a former conviction the effect of which was to increase the penalty, said: "We entertain no doubt of the constitutionality of this section, which promotes the ends of justice by taking away a purely technical objection, while Page 107 U. S. 243

applicable to the case of an offense previously committed, is well illustrated by the case of Ratzky v. People, 29 N.Y. 124. There, the prisoner had been convicted of murder in the first degree; the offense was committed when the act of 1860 was is force, which prescribed the mode of punishment; he was sentenced, however, in accordance with the terms of an act passed in 1862, subsequently to the commission of the offense, and which prescribed a different mode of punishment. On this account the judgment was held to be erroneous and was reversed on the ground that the act of 1862, applied to offenses previously committed, was ex post facto. But at the Page 107 U. S. 244 time of the commission of the offense in 1861, it was the well settled law of New York, as decided in Shepherd v. People, 25 N.Y. 406, that when a wrong judgment had been pronounced, although the trial and conviction were regular, the prisoner could not, on the reversal of judgment, be subject to another trial, but would be entitled to his discharge. But on April 24, 1863, after the prisoner had been tried and convicted but before judgment and sentence were pronounced, an act of the legislature took effect which provided that the appellate court should have power, upon any writ of error, when it should appear that the conviction had been legal and regular, to remit the record to the court in which such conviction had been had, to pass such sentence thereon as the appellate court should direct. But for the authority conferred by this act, the Court of Appeals stated that it would have had no power, upon reversal of the judgment of the supreme court, either to pronounce the appropriate judgment or remit the record to the oyer and

terminer to give such judgment, but, on the contrary, would have been obliged to have discharged him, the law not authorizing another trial. Nevertheless, the Court of Appeals gave effect to the act of 1863, reversed the judgment, and sent the record down with directions to sentence the prisoner to death in accordance with the provisions of the act of 1860, holding that the act of 1863 was not an ex post facto law. And yet it deprived the prisoner of the benefit of a rule of law in force at the time the offense was committed, viz., that if he should be erroneously sentenced, and the judgment should be reversed, he would be entitled to be discharged and forever after protected against further prosecution for the same offense as well as against any second judgment upon the same verdict. This decision deserves particular consideration, for it involves the very question under discussion. At the time of the commission of his offense and at the time of his trial and conviction, a rule of law in New York had been well established that upon a reversal of judgment in a capital case for error in the sentence, the prisoner was entitled to be discharged, and his former conviction, notwithstanding the reversal, was a conclusive defense upon any subsequent trial for the same offense. After trial and conviction a statute was passed which abrogated Page 107 U. S. 245 that rule and declared that a subsequent reversal of judgment for error merely in the sentence should not have that effect, but that even without a new trial, a new judgment might be entered upon the verdict. This gave to the verdict and to the subsequent proceeding an effect entirely different from what they would

have had under the law as it stood at the time of the commission of the offense, and deprived the prisoner of the advantage of the rule then in force. After that statute took effect, he prosecuted a writ of error and reversed the judgment for error in the sentence, and it was held that the effect of that reversal was determined by the law in force when it was rendered, and not by the law in force when the trial and verdict were had and when the offense was committed. Davies, J., said, p. 132: "It would follow from these considerations and the authority of the case of People v. Shepherd, 25 N.Y. 406, that a wrong judgment having been pronounced, although the trial and conviction were regular, this prisoner could not be subjected to another trial, and would be entitled to his discharge. That would unquestionably be so but for the Act of April 24, 1863. . . . In the present case, that act became operative before the judgment and sentence were pronounced and given and before the writ of error was prosecuted to this court. It was therefore in force when the writ of error in this case was prosecuted, and its provisions are applicable to the duty imposed upon this tribunal by virtue of that proceeding. . . . But for the authority conferred upon this Court by that statute, it would have had no power, upon reversal of the judgment of the supreme court, either to pronounce the appropriate judgment or remit the record to the oyer and terminer to give such judgment." And Denio, C.J., said: "The remaining question is whether the judgment should be reversed and the prisoner discharged according to the former

rule, or the record be remitted to the oyer and terminer to pass a legal sentence upon the conviction. This latter course is now authorized by statute. Laws 1863, c. 226, p. 406. The conviction was legal and the sentence only was erroneous. The only question is whether the act, having been passed after the conviction, though before judgment was given in the supreme court, could be applied to the Page 107 U. S. 246 case. I am of opinion that it can be applied. The forms of judicial proceedings are under control of the legislature." And the court accordingly, instead of ordering the prisoner to be discharged, according to the rule in force at the time the offense was committed and even at the time of his trial and conviction, directed the record to be remitted to the court of oyer and terminer with instructions to sentence him to suffer death for the crime of which he had been convicted. The counterpart and complement of the decision in Ratzky's Case are found in Hartung v. People. There, the prisoner had been convicted of murder and sentenced to death, but at the time the judgment was rendered, the law in force at the time of the commission of the offense providing for its punishment had been repealed and the repealing act substituted a different punishment. It was on this account adjudged to be an ex post facto law and void, and the judgment was reversed. 22 N.Y. 95. Subsequently the repealing act was itself repealed, and the former act in force when the offense was committed was restored. Then the prisoner was again tried, having pleaded a former conviction, but was found guilty and adjudged to suffer

death in accordance with the law existing at the time the offense was committed. This judgment was thereupon reversed, and the prisoner ordered to be discharged on the ground that the act restoring the law as it stood when the offense was committed was an ex post factolaw because, at the time it was passed, the prisoner had been adjudged to be legally free from punishment of any kind on account of her offense. 26 N.Y. 167. The very point of the decision was that while it was competent for the legislature to repeal the repealing act so that it could not thereafter be availed of, it could not destroy the effect of a judgment actually pronounced while that act was in force. It is manifest that if in that case the prisoner had not been tried at all until after the law had been thus twice changed, she could not have claimed to have had the vested interest in the first repealing act which was allowed to her in the judgment actually rendered when it was in force. It was because the subsequent law, if applied, would have changed the legal effect of that judgment that it was adjudged to be an ex post facto law. Page 107 U. S. 247 It was precisely upon this principle that the Supreme Court of North Carolina proceeded in the case of State v. Keith, 63 N.C. 140. There, the prisoner, in custody on a charge of murder, moved for a discharge on the ground that his offense was within the provisions of the Amnesty Act of 1866-67. This was admitted to be the case, but the motion was opposed on the ground that the amnesty act had been repealed. It was held that the effect of the pardon was, so far as the state was concerned, to destroy and entirely efface the previous offense, as if it had never been committed, and that to give to the repeal

of the amnesty act the effect, as claimed, of reviving the offense would make it an ex post facto law, making criminal that which, when it took effect, was not so and taking from the prisoner his vested right to immunity. But suppose in that case the provisions of the amnesty act had been conditional, and not absolute, so that no one could plead its pardon unless he had taken certain formal preliminary steps to obtain the benefit of its terms, and that before the prisoner had done so, the act had been repealed, could it be claimed that in that event, he had obtained a vested right to immunity, and that its repeal operated as an ex post factolaw? Clearly not. And in reference to this case it is also to be observed that the fact, the legal character of which was changed by the subsequent law, was the fact of pardon, and not a fact which existed at the time of the commission of the offense. The repealing act was ex post facto because it had the effect to change the legal character of the facts as they existed at the time of its passage. In State v. Arlin, 39 N.H. 179, a prisoner was indicted for a robbery, which at the time of its commission, was punishable by imprisonment for life, but by the same law he was entitled to have counsel assigned him by the government, process to compel the attendance of witnesses, and other similar privileges. A subsequent law mitigated the severity of the punishment and repealed the act giving these privileges. It was held that the act was not ex post facto because it changed the punishment to the advantage of the prisoner, and that he was not entitled to the incidental benefits secured by the law in

force when the offense was committed. The court remarked that, Page 107 U. S. 248 by committing the offense, the prisoner had not acquired a vested right to enjoy the privileges to which he would have been entitled if tried under the law subjecting him to imprisonment for life. The rule of law in Missouri the benefit of which is claimed for the prisoner in this proceeding notwithstanding its repeal by the constitution of the state before it could have been applied in his case was established not by statute, but by a series of judicial decisions of the supreme court of the state. Those decisions might at any time have been reversed by the same tribunal and a new rule introduced such as that actually declared by the constitution. In that event, could it be said with any plausibility that the latter decisions reversing the law as previously understood could not be applied to all subsequent proceedings in cases where, upon a plea of guilty of murder in the second degree thereafter entered and accepted, an erroneous judgment thereon had been reversed, notwithstanding, when the offense was committed, the prior decisions had been in force? Would the new rule, as introduced and applied by the later judicial decisions, be in violation of the prohibition of the Constitution of the United States against ex post facto laws? But the Constitution of Missouri has done no more than this. The nature and operation of the rule are not affected by any peculiarity in the authority which establishes it. If it is not objectionable as an ex post facto law, when introduced by

judicial decision, it is because it is not so in its nature, and if not, it does not become so when introduced by a legislative declaration. There are doubtless many matters of mere procedure which are of vital consequence, but in respect to them the power of Congress as to crimes against the United States is restrained by positive and specific limitations, carefully inserted in the organic law, prohibiting unreasonable searches and seizures and general warrants, providing that no one shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the military service; that no person shall for the same offense be twice put in jeopardy of life or limb nor be compelled to testify against himself; that every accused person shall be secured in the right to a public trial by an impartial Page 107 U. S. 249 jury in a previously ascertained district in which the alleged offense is charged to have been committed; to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. But these are limitations upon the legislative power of the United States, whether prospective or retrospective, and not upon that of the states, and although the constitutions of all the states, probably, have equivalent guarantees of individual rights, the violation of none of them by a state tribunal, under state legislation, could present a case for the exercise of supervisory jurisdiction by this Court. The

prohibition against bills of attainder is the only one of this class which applies to both the government of the United States and those of the states, and while a bill of attainder may be an ex post facto law, it is not necessarily so, as it may be merely a matter of procedure -- a trial by a legislative instead of a judicial body. But in addition to these matters of procedure, which are specially protected against legislative change either for the past or the future, there may be others in which changes with a retrospective effect are forbidden by the prohibition against ex post facto laws. Such, we have already seen, would be laws which authorize conviction upon less evidence than was required at the time of the commission of the offense or which altered to the disadvantage of the accused the nature and quantity of proof at that time required to substantiate a legal defense, or which, in other words, gave to the circumstances which constituted and attended the act a legal signification more injurious to the accused than was attached to them by the law existing at the time of the transaction. It is doubtless quite true that it is difficult to draw the line in particular cases beyond which legislative power over remedies and procedure cannot pass without touching upon the substantial rights of the parties affected, as it is impossible to fix that boundary by any general words. The same difficulty is encountered, as the same principle applies, in determining in civil cases how far the legislature may modify the remedy without impairing or enlarging the obligation of contracts. Every case must be decided upon its own circumstances, as the

Page 107 U. S. 250 question continually arises and requires an answer. But it is a familiar principle that before rights derived under public laws have become vested in particular individuals, the state, for its own convenience and the public good, may amend or repeal the law without just cause of complaint. "The power that authorizes or proposes to give," said Mr. Justice Woodbury in Merrill v. Sherburne, 1 N.H. 213, "may always revoke before an interest is perfected in the donee." Accordingly, the heir apparent loses no legal right if, before descent cast, the law of descents is changed so as to shift the inheritance to another, however his expectations may be disappointed. And while it would be a violation of the constitutional maxim which forbids retrospective legislation inconsistent with vested rights to deprive, by a repeal of statutes of limitation, a defendant of a defense which had become perfect while they were in force, yet if, before the bar had become complete, he should be deprived of an expected defense by an extension of time in which suit might be brought, he would have no just cause to object that he was compelled to meet the case of his adversary upon its merits. In respect to criminal offenses, it is undoubtedly a maxim of natural justice embodied in constitutional provisions that the quality and consequences of an act shall be determined by the law in force when it is committed, and of which therefore the accused may be presumed to have knowledge, so that the definition of the offense, the character and degree of its punishment, and the amount and kind of evidence necessary to prove it cannot be changed to the disadvantage of the party charged ex post facto. And this equally applies to, because it

includes,

the

matters

which,

existing

at

the

time

and

constituting part of the transaction, affect its character, and thus form grounds of mitigation or defense, for the accused is entitled to the benefit of all the circumstances that attended his conduct, according to their legal significance, as determined at the time. All these are incidents that belong to the substance of the thing charged as a crime, and therefore come within the saving which preserves the legal character of the principal fact. But matters of possible defense, which accrue under provisions of positive law, which are arbitrary and technical, introduced for public convenience or from motives of policy, Page 107 U. S. 251 which do not affect the substance of the accusation or defense, and form no part of theres gestae, are continually subject to the legislative will unless, in the meantime, by an actual application to the particular case, the legal condition of the accused has been actually changed. His right to maintain that status, when it has become once vested, is beyond the reach of subsequent law. The present, as we have seen, is not such a case. The substance of the prisoner's defense upon the merits has not been touched; no vested right under the law had wrought a result upon his legal condition before its repeal. He is therefore in no position to invoke the constitutional prohibition which is, by the judgment of this Court, now interposed between him and the crime of which he has been convicted. In our opinion, the judgment of the Supreme Court of Missouri should be affirmed.

THE MANILA RAILROAD COMPANY, plaintiff-appellant, vs. THE ATTORNEY-GENERAL, ET AL., defendants. MAURO PRIETO, appellant. Jose Robles Lahesa and O'Brien and DeWitt for plaintiff. Singson, Ledesma and Lim for defendant Prieto. CARSON, J.: This was an action was brought by the plaintiff, The Manila Railroad Company, in the Court of First Instance of the Province of Laguna for the purpose of condemning certain parcels of land which the plaintiff company desired to use in the extension of its railway line from Calamba to Santa Cruz, a distance of some 22 miles. The petition sets out that among other concessions granted to the plaintiff company by Act No. 1510 of the Philippine Commission is the right to construct this branch line from Calamba to Santa Cruz. At the time of the institution of this action there were fifty-two parties defendant, but prior to the rendering of the judgment herein he claims of many of the defendants were settled, and since the rendering of the judgment all other claims, with the exception of those of the defendant Mauro Prieto, have been satisfactorily adjusted, so that of the original fifty-two defendants Prieto is the only remaining party defendant to this appeal. Both parties asked for the appointment of commissioners to value the land and the improvements which were the subject of the condemnation proceedings; and the trial court in accordance with the provisions of section 243 of Act No. 190 of the Philippine Commission, appointed as commissioners W. A. McVean, Julian Pion, and Hermenegildo Aquino. These commissioners accepted their appointments as such and proceeded to the discharge of their duties. They held sessions in the village of Los Baos, made personal inspections of the lands which were the subject of the condemnation proceedings, heard both parties as to their respective claims, examined a large number of witnesses, and in due time rendered to the court a full and complete report of all their proceedings together with the conclusions at which they had arrived. With some slight modifications the majority report of the commissioners was approved by the court and formed the basis of the judgment rendered herein. Both parties are now before this court as appellants from that judgment.

The valuations fixed for the land involved in this action form no part of the issues on this appeal. The only question brought up for consideration here is the value of certain mejoras (improvements) which are alleged to have been either destroyed or used by the agents and employees of the plaintiff company. The record shows, and it is not questioned, that the defendant was a tenant of a large tract of land belonging to the Insular Government and known as the Hacienda de los Frailes, and that such tenant and by virtue of a waiver by the Government of its claim to compensation in his favor, he is entitled to compensation for the value of the mejoras (improvements) on the land held by him as tenant and condemned in favor of the plaintiff company. The mejoras (improvements) on the tract of land in question consisted largely of plants and trees, such asnaranjitos, abacas, platanos, and trees of many other varieties. The damages and injuries complained of were classified under four different heads, as follows: 1. Damages done by the surveyors and engineers of the plaintiff 2. Improvements destroyed in making the embankments and fills of the roadbed 3. Improvements destroyed by fire alleged to have been caused by agents and employees of plaintiff 4. Improvements destroyed along the side of the roadbed

P665.00 17,828.00

1,950.00 3,283.00

In addition to the above items there was a claim for P400, for money which defendant claimed he paid out in clearing and preparing for cultivation certain tracts of the land which where thereafter occupied and appropriated by the plaintiff company. The total amount of damages claimed by the defendant was P24,126.50. The majority report of the commissioners fixed the value of the improvements, and awarded the amount of damages which the defendant should receive at P19,478. This amount was reduced by the lower court to P16,778. The plaintiff's contention is that the amount of damages awarded is grossly excessive and unjust and that the amount awarded in the report of the commissioners should have been reduced by at least P17,000. The defendant urges that the proof showed the damages to have been

greater than those allowed by the commissioners and the court, and that the award of damage should conform to the proof. The only ground upon which the plaintiff company bases its contention that the valuations are excessive is the minority report of one of the commissioners. The values assigned to some of the improvements may be excessive but we are not prepared to say that such is the case. Certainly there is no evidence in the record which would justify us in holding these values to be grossly excessive. The commissioners in their report go into rather minute detail as to the reasons for the conclusions reached and the valuations fixed for the various items included therein. There was sufficient evidence before the commissioners to support the valuations fixed by them except only those later modified by the court below. The trial court was of opinion that the price of P2 each which was fixed for the orange trees (naranjitos) was excessive, and this was reduced to P1.50 for each tree; this on the ground that the evidence discloses that these trees were comparatively young at the time of the expropriation, and that the value fixed by the majority report of the commissioners was that of full-grown or nearly full-grown trees. We are of the opinion that this reduction was just and reasonable. Aside from the evidence taken into consideration by the trial judge we find no evidence in the record in support of the contention of the railroad plaintiff that the valuations fixed in the majority report of the commissioners and by the trial court are grossly excessive, and plaintiff company having wholly failed to offer evidence in support of its allegations in this regard when the opportunity so to do was provided in accordance with law, it has no standing in this court to demand a new trial based on its unsupported allegations of grossly excessive valuation of the property by the commissioners and the court below. (Philippine Railway Co. vs. Solon. 13 Phil. Rep., 34.) The item of damages amounting to P1,950, which relates to the destruction of improvements on lands adjoining the condemned lands and which is alleged to have been caused by fire, was not, in our opinion, a proper item for the consideration of the commissioners. Section 244 of Act No. 190, which relates to the duties of the commissioners in condemnation proceedings, provides among other things as follows: "The commissioners shall assess the value of the property taken and used . . ." The other provisions of this article relate to the question of consequential damages and benefits. The land on which the mejoras (improvements) alleged to have been destroyed by fire were located, was not property taken and used by the plaintiff company for the construction of its railway line. If the plaintiff is liable for this item of damages such liability cannot be enforced in these proceedings. It was

error on the part of the trial court to take this item of damage into consideration in fixing its judgment. The trial court, however, reduced the amount of damage caused by the fire from, P1,950 to P1,500 since there was included in this item 900 orange trees (naranjitos) and the price allowed for these trees was P1.50 for each tree instead of P2. For the reasons already stated we think that no part of the damages which are alleged to have resulted form the negligent or willful acts of the agents of the company in setting fire to the mejoras (improvements) on lands adjoining the lands actually condemned should have been considered or allowed in these proceedings, and the judgment of the lower court awarding P16,778 as the amount of damages to be paid to the defendant should therefore reduced by P1,500, this latter sum being the amount of these damages which was included in the judgment. Modified by substituting damages to the amount of P15,278 instead of P16,778, as allowed by the court below, the judgment entered below is affirmed without costs to either party in this instance. Torres, Mapa, Johnson, Moreland and Trent, JJ., concur.

In the Matter of the Petitions for Admission to the Bar of Unsuccessful Candidates of 1946 to 1953; ALBINO CUNANAN, ET AL., petitioners. Jose M. Aruego, M.H. de Joya, Miguel R. Cornejo, and Antonio Enrile Inton for petitioners. Office of the Solicitor General Juan R. Liwag for respondent. DIOKNO, J.: In recent years few controversial issues have aroused so much public interest and concern as Republic Act No. 972, popularly known as the "Bar Flunkers' Act of 1953." Under the Rules of Court governing admission to the bar, "in order that a candidate (for admission to the Bar) may be deemed to have passed his examinations successfully, he must have obtained a general average of 75 per cent in all subjects, without falling below 50 per cent in any subject." (Rule 127, sec. 14, Rules of Court). Nevertheless, considering the varying difficulties of the different bar examinations held since 1946 and the varying degree of strictness with which the examination papers were graded, this court passed and admitted to the bar those candidates who had obtained an average of only 72 per cent in 1946, 69 per cent in 1947, 70 per cent in 1948, and 74 per cent in 1949. In 1950 to 1953, the 74 per cent was raised to 75 per cent. Believing themselves as fully qualified to practice law as those reconsidered and passed by this court, and feeling conscious of having been discriminated against (See Explanatory Note to R.A. No. 972), unsuccessful candidates who obtained averages of a few percentage lower than those admitted to the Bar agitated in Congress for, and secured in 1951 the passage of Senate Bill No. 12 which, among others, reduced the passing general average in bar examinations to 70 per cent effective since 1946. The President requested the views of this court on the bill. Complying with that request, seven members of the court subscribed to and submitted written comments adverse thereto, and shortly thereafter the President vetoed it. Congress did not override the veto. Instead, it approved Senate Bill No. 371, embodying substantially the provisions of the vetoed bill. Although the members of this court reiterated their unfavorable views on the matter, the President allowed the bill to become a law on June 21, 1953 without his signature. The law, which incidentally was enacted in an election year, reads in full as follows:

REPUBLIC ACT NO. 972 AN ACT TO FIX THE PASSING MARKS FOR BAR EXAMINATIONS FROM NINETEEN HUNDRED AND FORTY-SIX UP TO AND INCLUDING NINETEEN HUNDRED AND FIFTY-FIVE. Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled: SECTION 1. Notwithstanding the provisions of section fourteen, Rule numbered one hundred twenty-seven of the Rules of Court, any bar candidate who obtained a general average of seventy per cent in any bar examinations after July fourth, nineteen hundred and forty-six up to the August nineteen hundred and fifty-one bar examinations; seventy-one per cent in the nineteen hundred and fifty-two bar examinations; seventy-two per cent in the in the nineteen hundred and fifty-three bar examinations; seventy-three per cent in the nineteen hundred and fifty-four bar examinations; seventy-four per cent in the nineteen hundred and fifty-five bar examinations without a candidate obtaining a grade below fifty per cent in any subject, shall be allowed to take and subscribe the corresponding oath of office as member of the Philippine Bar: Provided, however, That for the purpose of this Act, any exact one-half or more of a fraction, shall be considered as one and included as part of the next whole number. SEC. 2. Any bar candidate who obtained a grade of seventy-five per cent in any subject in any bar examination after July fourth, nineteen hundred and forty-six shall be deemed to have passed in such subject or subjects and such grade or grades shall be included in computing the passing general average that said candidate may obtain in any subsequent examinations that he may take. SEC. 3. This Act shall take effect upon its approval. Enacted on June 21, 1953, without the Executive approval. After its approval, many of the unsuccessful postwar candidates filed petitions for admission to the bar invoking its provisions, while others whose motions for the revision of their examination papers were still

pending also invoked the aforesaid law as an additional ground for admission. There are also others who have sought simply the reconsideration of their grades without, however, invoking the law in question. To avoid injustice to individual petitioners, the court first reviewed the motions for reconsideration, irrespective of whether or not they had invoked Republic Act No. 972. Unfortunately, the court has found no reason to revise their grades. If they are to be admitted to the bar, it must be pursuant to Republic Act No. 972 which, if declared valid, should be applied equally to all concerned whether they have filed petitions or not. A complete list of the petitioners, properly classified, affected by this decision, as well as a more detailed account of the history of Republic Act No. 972, are appended to this decision as Annexes I and II. And to realize more readily the effects of the law, the following statistical data are set forth: (1) The unsuccessful bar candidates who are to be benefited by section 1 of Republic Act No. 972 total 1,168, classified as follows: 1946 1946 1947 1948 1949 1950 1951 1952 1953 TOTAL (August) (November) 206 477 749 899 1,218 1,316 2,068 2,555 968 284 12,230 5,421 1,168 121 228 340 409 532 893 879 18 43 0 11 164 26 196 426

marks, they would be sufficient to reach the passing average as provided for by Republic Act No. 972. (3) The total number of candidates to be benefited by this Republic Acts is therefore 1,094, of which only 604 have filed petitions. Of these 604 petitioners, 33 who failed in 1946 to 1951 had individually presented motions for reconsideration which were denied, while 125 unsuccessful candidates of 1952, and 56 of 1953, had presented similar motions, which are still pending because they could be favorably affected by Republic Act No. 972, although as has been already stated, this tribunal finds no sufficient reasons to reconsider their grades UNCONSTITUTIONALITY OF REPUBLIC ACT NO. 972 Having been called upon to enforce a law of far-reaching effects on the practice of the legal profession and the administration of justice, and because some doubts have been expressed as to its validity, the court set the hearing of the afore-mentioned petitions for admission on the sole question of whether or not Republic Act No. 972 is constitutional. We have been enlightened in the study of this question by the brilliant assistance of the members of the bar who have amply argued, orally an in writing, on the various aspects in which the question may be gleaned. The valuable studies of Messrs. E. Voltaire Garcia, Vicente J. Francisco, Vicente Pelaez and Buenaventura Evangelista, in favor of the validity of the law, and of the U.P. Women's Lawyers' Circle, the Solicitor General, Messrs. Arturo A. Alafriz, Enrique M. Fernando, Vicente Abad Santos, Carlos A. Barrios, Vicente del Rosario, Juan de Blancaflor, Mamerto V. Gonzales, and Roman Ozaeta against it, aside from the memoranda of counsel for petitioners, Messrs. Jose M. Aruego, M.H. de Joya, Miguel R. Cornejo and Antonio Enrile Inton, and of petitioners Cabrera, Macasaet and Galema themselves, has greatly helped us in this task. The legal researchers of the court have exhausted almost all Philippine and American jurisprudence on the matter. The question has been the object of intense deliberation for a long time by the Tribunal, and finally, after the voting, the preparation of the majority opinion was assigned to a new member in order to place it as humanly as possible above all suspicion of prejudice or partiality. Republic Act No. 972 has for its object, according to its author, to admit to the Bar, those candidates who suffered from insufficiency of reading materials and inadequate preparation. Quoting a portion of the

2,738 1,033

Of the total 1,168 candidates, 92 have passed in subsequent examination, and only 586 have filed either motions for admission to the bar pursuant to said Republic Act, or mere motions for reconsideration. (2) In addition, some other 10 unsuccessful candidates are to be benefited by section 2 of said Republic Act. These candidates had each taken from two to five different examinations, but failed to obtain a passing average in any of them. Consolidating, however, their highest grades in different subjects in previous examinations, with their latest

Explanatory Note of the proposed bill, its author Honorable Senator Pablo Angeles David stated: The reason for relaxing the standard 75 per cent passing grade is the tremendous handicap which students during the years immediately after the Japanese occupation has to overcome such as the insufficiency of reading materials and the inadequacy of the preparation of students who took up law soon after the liberation. Of the 9,675 candidates who took the examinations from 1946 to 1952, 5,236 passed. And now it is claimed that in addition 604 candidates be admitted (which in reality total 1,094), because they suffered from "insufficiency of reading materials" and of "inadequacy of preparation." By its declared objective, the law is contrary to public interest because it qualifies 1,094 law graduates who confessedly had inadequate preparation for the practice of the profession, as was exactly found by this Tribunal in the aforesaid examinations. The public interest demands of legal profession adequate preparation and efficiency, precisely more so as legal problem evolved by the times become more difficult. An adequate legal preparation is one of the vital requisites for the practice of law that should be developed constantly and maintained firmly. To the legal profession is entrusted the protection of property, life, honor and civil liberties. To approve officially of those inadequately prepared individuals to dedicate themselves to such a delicate mission is to create a serious social danger. Moreover, the statement that there was an insufficiency of legal reading materials is grossly exaggerated. There were abundant materials. Decisions of this court alone in mimeographed copies were made available to the public during those years and private enterprises had also published them in monthly magazines and annual digests. The Official Gazette had been published continuously. Books and magazines published abroad have entered without restriction since 1945. Many law books, some even with revised and enlarged editions have been printed locally during those periods. A new set of Philippine Reports began to be published since 1946, which continued to be supplemented by the addition of new volumes. Those are facts of public knowledge. Notwithstanding all these, if the law in question is valid, it has to be enforced.

The question is not new in its fundamental aspect or from the point of view of applicable principles, but the resolution of the question would have been easier had an identical case of similar background been picked out from the jurisprudence we daily consult. Is there any precedent in the long Anglo-Saxon legal history, from which has been directly derived the judicial system established here with its lofty ideals by the Congress of the United States, and which we have preserved and attempted to improve, or in our contemporaneous judicial history of more than half a century? From the citations of those defending the law, we can not find a case in which the validity of a similar law had been sustained, while those against its validity cite, among others, the cases of Day (In re Day, 54 NE 646), of Cannon (State vs. Cannon, 240 NW, 441), the opinion of the Supreme Court of Massachusetts in 1932 (81 ALR 1061), of Guaria (24 Phil., 37), aside from the opinion of the President which is expressed in his vote of the original bill and which the postponement of the contested law respects. This law has no precedent in its favor. When similar laws in other countries had been promulgated, the judiciary immediately declared them without force or effect. It is not within our power to offer a precedent to uphold the disputed law. To be exact, we ought to state here that we have examined carefully the case that has been cited to us as a favorable precedent of the law that of Cooper (22 NY, 81), where the Court of Appeals of New York revoked the decision of the Supreme court of that State, denying the petition of Cooper to be admitted to the practice of law under the provisions of a statute concerning the school of law of Columbia College promulgated on April 7, 1860, which was declared by the Court of Appeals to be consistent with the Constitution of the state of New York. It appears that the Constitution of New York at that time provided: They (i.e., the judges) shall not hold any other office of public trust. All votes for either of them for any elective office except that of the Court of Appeals, given by the Legislature or the people, shall be void. They shall not exercise any power of appointment to public office. Any male citizen of the age of twenty-one years, of good moral character, and who possesses the requisite qualifications of learning and ability, shall be entitled to admission to practice in all the courts of this State. (p. 93).

According to the Court of Appeals, the object of the constitutional precept is as follows: Attorneys, solicitors, etc., were public officers; the power of appointing them had previously rested with the judges, and this was the principal appointing power which they possessed. The convention was evidently dissatisfied with the manner in which this power had been exercised, and with the restrictions which the judges had imposed upon admission to practice before them. The prohibitory clause in the section quoted was aimed directly at this power, and the insertion of the provision" expecting the admission of attorneys, in this particular section of the Constitution, evidently arose from its connection with the object of this prohibitory clause. There is nothing indicative of confidence in the courts or of a disposition to preserve any portion of their power over this subject, unless the Supreme Court is right in the inference it draws from the use of the word `admission' in the action referred to. It is urged that the admission spoken of must be by the court; that to admit means to grant leave, and that the power of granting necessarily implies the power of refusing, and of course the right of determining whether the applicant possesses the requisite qualifications to entitle him to admission. These positions may all be conceded, without affecting the validity of the act. (p. 93.) Now, with respect to the law of April 7, 1860, the decision seems to indicate that it provided that the possession of a diploma of the school of law of Columbia College conferring the degree of Bachelor of Laws was evidence of the legal qualifications that the constitution required of applicants for admission to the Bar. The decision does not however quote the text of the law, which we cannot find in any public or accessible private library in the country. In the case of Cooper, supra, to make the law consistent with the Constitution of New York, the Court of Appeals said of the object of the law: The motive for passing the act in question is apparent. Columbia College being an institution of established reputation, and having a law department under the charge of able professors, the students in which department were not only subjected to a formal examination by the law committee of the institution, but to a

certain definite period of study before being entitled to a diploma of being graduates, the Legislature evidently, and no doubt justly, considered this examination, together with the preliminary study required by the act, as fully equivalent as a test of legal requirements, to the ordinary examination by the court; and as rendering the latter examination, to which no definite period of preliminary study was essential, unnecessary and burdensome. The act was obviously passed with reference to the learning and ability of the applicant, and for the mere purpose of substituting the examination by the law committee of the college for that of the court. It could have had no other object, and hence no greater scope should be given to its provisions. We cannot suppose that the Legislature designed entirely to dispense with the plain and explicit requirements of the Constitution; and the act contains nothing whatever to indicate an intention that the authorities of the college should inquire as to the age, citizenship, etc., of the students before granting a diploma. The only rational interpretation of which the act admits is, that it was intended to make the college diploma competent evidence as to the legal attainments of the applicant, and nothing else. To this extent alone it operates as a modification of pre-existing statutes, and it is to be read in connection with these statutes and with the Constitution itself in order to determine the present condition of the law on the subject. (p.89) xxx xxx xxx

The Legislature has not taken from the court its jurisdiction over the question of admission, that has simply prescribed what shall be competent evidence in certain cases upon that question. (p.93) From the foregoing, the complete inapplicability of the case of Cooper with that at bar may be clearly seen. Please note only the following distinctions: (1) The law of New York does not require that any candidate of Columbia College who failed in the bar examinations be admitted to the practice of law.

(2) The law of New York according to the very decision of Cooper, has not taken from the court its jurisdiction over the question of admission of attorney at law; in effect, it does not decree the admission of any lawyer. (3) The Constitution of New York at that time and that of the Philippines are entirely different on the matter of admission of the practice of law. In the judicial system from which ours has been evolved, the admission, suspension, disbarment and reinstatement of attorneys at law in the practice of the profession and their supervision have been disputably a judicial function and responsibility. Because of this attribute, its continuous and zealous possession and exercise by the judicial power have been demonstrated during more than six centuries, which certainly "constitutes the most solid of titles." Even considering the power granted to Congress by our Constitution to repeal, alter supplement the rules promulgated by this Court regarding the admission to the practice of law, to our judgment and proposition that the admission, suspension, disbarment and reinstatement of the attorneys at law is a legislative function, properly belonging to Congress, is unacceptable. The function requires (1) previously established rules and principles, (2) concrete facts, whether past or present, affecting determinate individuals. and (3) decision as to whether these facts are governed by the rules and principles; in effect, a judicial function of the highest degree. And it becomes more undisputably judicial, and not legislative, if previous judicial resolutions on the petitions of these same individuals are attempted to be revoked or modified. We have said that in the judicial system from which ours has been derived, the act of admitting, suspending, disbarring and reinstating attorneys at law in the practice of the profession is concededly judicial. A comprehensive and conscientious study of this matter had been undertaken in the case of State vs. Cannon (1932) 240 NW 441, in which the validity of a legislative enactment providing that Cannon be permitted to practice before the courts was discussed. From the text of this decision we quote the following paragraphs: This statute presents an assertion of legislative power without parallel in the history of the English speaking people so far as we have been able to ascertain. There has been much uncertainty as to the extent of the power of the Legislature to prescribe the ultimate qualifications of attorney at law has been expressly committed to the courts, and the act of admission has always been regarded as a judicial function. This act purports to

constitute Mr. Cannon an attorney at law, and in this respect it stands alone as an assertion of legislative power. (p. 444) Under the Constitution all legislative power is vested in a Senate and Assembly. (Section 1, art. 4.) In so far as the prescribing of qualifications for admission to the bar are legislative in character, the Legislature is acting within its constitutional authority when it sets up and prescribes such qualifications. (p. 444) But when the Legislature has prescribed those qualifications which in its judgment will serve the purpose of legitimate legislative solicitude, is the power of the court to impose other and further exactions and qualifications foreclosed or exhausted? (p. 444) Under our Constitution the judicial and legislative departments are distinct, independent, and coordinate branches of the government. Neither branch enjoys all the powers of sovereignty which properly belongs to its department. Neither department should so act as to embarrass the other in the discharge of its respective functions. That was the scheme and thought of the people setting upon the form of government under which we exist. State vs. Hastings, 10 Wis., 525; Attorney General ex rel. Bashford vs. Barstow, 4 Wis., 567. (p. 445) The judicial department of government is responsible for the plane upon which the administration of justice is maintained. Its responsibility in this respect is exclusive. By committing a portion of the powers of sovereignty to the judicial department of our state government, under 42a scheme which it was supposed rendered it immune from embarrassment or interference by any other department of government, the courts cannot escape responsibility fir the manner in which the powers of sovereignty thus committed to the judicial department are exercised. (p. 445) The relation at the bar to the courts is a peculiar and intimate relationship. The bar is an attache of the courts. The quality of justice dispense by the courts depends in no small degree upon the integrity of its bar. An unfaithful bar may easily bring scandal and reproach to the administration of justice and bring the courts themselves into disrepute. (p.445)

Through all time courts have exercised a direct and severe supervision over their bars, at least in the English speaking countries. (p. 445) After explaining the history of the case, the Court ends thus: Our conclusion may be epitomized as follows: For more than six centuries prior to the adoption of our Constitution, the courts of England, concededly subordinate to Parliament since the Revolution of 1688, had exercise the right of determining who should be admitted to the practice of law, which, as was said in Matter of the Sergeant's at Law, 6 Bingham's New Cases 235, "constitutes the most solid of all titles." If the courts and judicial power be regarded as an entity, the power to determine who should be admitted to practice law is a constituent element of that entity. It may be difficult to isolate that element and say with assurance that it is either a part of the inherent power of the court, or an essential element of the judicial power exercised by the court, but that it is a power belonging to the judicial entity and made of not only a sovereign institution, but made of it a separate independent, and coordinate branch of the government. They took this institution along with the power traditionally exercise to determine who should constitute its attorney at law. There is no express provision in the Constitution which indicates an intent that this traditional power of the judicial department should in any manner be subject to legislative control. Perhaps the dominant thought of the framers of our constitution was to make the three great departments of government separate and independent of one another. The idea that the Legislature might embarrass the judicial department by prescribing inadequate qualifications for attorneys at law is inconsistent with the dominant purpose of making the judicial independent of the legislative department, and such a purpose should not be inferred in the absence of express constitutional provisions. While the legislature may legislate with respect to the qualifications of attorneys, but is incidental merely to its general and unquestioned power to protect the public interest. When it does legislate a fixing a standard of qualifications required of attorneys at law in order that public interests may be protected, such qualifications do not constitute only a minimum standard and limit the class from which the court must make its selection. Such legislative qualifications do not constitute the ultimate qualifications beyond which the court cannot go in fixing additional qualifications deemed necessary by the course of the proper administration of judicial functions. There

is no legislative power to compel courts to admit to their bars persons deemed by them unfit to exercise the prerogatives of an attorney at law. (p. 450) Furthermore, it is an unlawful attempt to exercise the power of appointment. It is quite likely true that the legislature may exercise the power of appointment when it is in pursuance of a legislative functions. However, the authorities are well-nigh unanimous that the power to admit attorneys to the practice of law is a judicial function. In all of the states, except New Jersey (In re Reisch, 83 N.J. Eq. 82, 90 A. 12), so far as our investigation reveals, attorneys receive their formal license to practice law by their admission as members of the bar of the court so admitting. Cor. Jur. 572; Ex parte Secombre, 19 How. 9,15 L. Ed. 565; Ex parteGarland, 4 Wall. 333, 18 L. Ed. 366; Randall vs. Brigham, 7 Wall. 53, 19 L. Ed. 285; Hanson vs. Grattan, 48 Kan, 843, 115 P. 646, 34 L.R.A. 519; Danforth vs. Egan, 23 S. D. 43, 119 N.W. 1021, 130 Am. St. Rep. 1030, 20 Ann. Cas. 413. The power of admitting an attorney to practice having been perpetually exercised by the courts, it having been so generally held that the act of the court in admitting an attorney to practice is the judgment of the court, and an attempt as this on the part of the Legislature to confer such right upon any one being most exceedingly uncommon, it seems clear that the licensing of an attorney is and always has been a purely judicial function, no matter where the power to determine the qualifications may reside. (p. 451) In that same year of 1932, the Supreme Court of Massachusetts, in answering a consultation of the Senate of that State, 180 NE 725, said: It is indispensible to the administration of justice and to interpretation of the laws that there be members of the bar of sufficient ability, adequate learning and sound moral character. This arises from the need of enlightened assistance to the honest, and restraining authority over the knavish, litigant. It is highly important, also that the public be protected from incompetent and vicious practitioners, whose opportunity for doing mischief is wide. It was said by Cardoz, C.L., in People ex rel. Karlin vs. Culkin, 242 N.Y. 456, 470, 471, 162 N.E. 487, 489, 60 A.L.R. 851: "Membership in the bar is a privilege burden with conditions." One is admitted to the bar "for something more than private gain." He becomes an "officer of the court", and ,like the

court itself, an instrument or agency to advance the end of justice. His cooperation with the court is due "whenever justice would be imperiled if cooperation was withheld." Without such attorneys at law the judicial department of government would be hampered in the performance of its duties. That has been the history of attorneys under the common law, both in this country and England. Admission to practice as an attorney at law is almost without exception conceded to be a judicial function. Petition to that end is filed in courts, as are other proceedings invoking judicial action. Admission to the bar is accomplish and made open and notorious by a decision of the court entered upon its records. The establishment by the Constitution of the judicial department conferred authority necessary to the exercise of its powers as a coordinate department of government. It is an inherent power of such a department of government ultimately to determine the qualifications of those to be admitted to practice in its courts, for assisting in its work, and to protect itself in this respect from the unfit, those lacking in sufficient learning, and those not possessing good moral character. Chief Justice Taney stated succinctly and with finality in Ex parte Secombe, 19 How. 9, 13, 15 L. Ed. 565, "It has been well settled, by the rules and practice of common-law courts, that it rests exclusively with the court to determine who is qualified to become one of its officers, as an attorney and counselor, and for what cause he ought to be removed." (p.727) In the case of Day and others who collectively filed a petition to secure license to practice the legal profession by virtue of a law of state (In re Day, 54 NE 646), the court said in part: In the case of Ex parte Garland, 4 Wall, 333, 18 L. Ed. 366, the court, holding the test oath for attorneys to be unconstitutional, explained the nature of the attorney's office as follows: "They are officers of the court, admitted as such by its order, upon evidence of their possessing sufficient legal learning and fair private character. It has always been the general practice in this country to obtain this evidence by an examination of the parties. In this court the fact of the admission of such officers in the highest court of the states to which they, respectively, belong for, three years preceding their application, is regarded as sufficient evidence of the possession of the requisite legal learning, and the statement of counsel moving their admission sufficient evidence that their private and professional character is fair. The order of admission is the judgment of the court that the parties possess the requisite

qualifications as attorneys and counselors, and are entitled to appear as such and conduct causes therein. From its entry the parties become officers of the court, and are responsible to it for professional misconduct. They hold their office during good behavior, and can only be deprived of it for misconduct ascertained and declared by the judgment of the court after opportunity to be heard has been afforded. Ex parte Hoyfron, admission or their exclusion is not the exercise of a mere ministerial power. It is the exercise of judicial power, and has been so held in numerous cases. It was so held by the court of appeals of New York in the matter of the application of Cooper for admission. Re Cooper 22 N. Y. 81. "Attorneys and Counselors", said that court, "are not only officers of the court, but officers whose duties relate almost exclusively to proceedings of a judicial nature; and hence their appointment may, with propriety, be entrusted to the court, and the latter, in performing his duty, may very justly considered as engaged in the exercise of their appropriate judicial functions." (pp. 650-651). We quote from other cases, the following pertinent portions: Admission to practice of law is almost without exception conceded everywhere to be the exercise of a judicial function, and this opinion need not be burdened with citations in this point. Admission to practice have also been held to be the exercise of one of the inherent powers of the court. Re Bruen, 102 Wash. 472, 172 Pac. 906. Admission to the practice of law is the exercise of a judicial function, and is an inherent power of the court. A.C. Brydonjack, vs. State Bar of California, 281 Pac. 1018; See Annotation on Power of Legislature respecting admission to bar, 65, A.L. R. 1512. On this matter there is certainly a clear distinction between the functions of the judicial and legislative departments of the government. The distinction between the functions of the legislative and the judicial departments is that it is the province of the legislature to establish rules that shall regulate and govern in matters of transactions occurring subsequent to the legislative action, while the judiciary determines rights and obligations with reference to transactions that are past or conditions that exist at the time of

the exercise of judicial power, and the distinction is a vital one and not subject to alteration or change either by legislative action or by judicial decree. The judiciary cannot consent that its province shall be invaded by either of the other departments of the government. 16 C.J.S., Constitutional Law, p. 229. If the legislature cannot thus indirectly control the action of the courts by requiring of them construction of the law according to its own views, it is very plain it cannot do so directly, by settling aside their judgments, compelling them to grant new trials, ordering the discharge of offenders, or directing what particular steps shall be taken in the progress of a judicial inquiry. Cooley's Constitutional Limitations, 192. In decreeing the bar candidates who obtained in the bar examinations of 1946 to 1952, a general average of 70 per cent without falling below 50 per cent in any subject, be admitted in mass to the practice of law, the disputed law is not a legislation; it is a judgment a judgment revoking those promulgated by this Court during the aforecited year affecting the bar candidates concerned; and although this Court certainly can revoke these judgments even now, for justifiable reasons, it is no less certain that only this Court, and not the legislative nor executive department, that may be so. Any attempt on the part of any of these departments would be a clear usurpation of its functions, as is the case with the law in question. That the Constitution has conferred on Congress the power to repeal, alter or supplement the rule promulgated by this Tribunal, concerning the admission to the practice of law, is no valid argument. Section 13, article VIII of the Constitution provides: Section 13. The Supreme Court shall have the power to promulgate rules concerning pleading, practice, and procedure in all courts, and the admission to the practice of law. Said rules shall be uniform for all courts of the same grade and shall not diminish, increase or modify substantive rights. The existing laws on pleading, practice and procedure are hereby repealed as statutes, and are declared Rules of Court, subject to the power of the Supreme Court to alter and modify the same. The Congress shall have the power to repeal, alter, or supplement the rules concerning pleading, practice, and procedure, and the admission

to the practice of law in the Philippines. Constitution of the Philippines, Art. VIII, sec. 13. It will be noted that the Constitution has not conferred on Congress and this Tribunal equal responsibilities concerning the admission to the practice of law. the primary power and responsibility which the Constitution recognizes continue to reside in this Court. Had Congress found that this Court has not promulgated any rule on the matter, it would have nothing over which to exercise the power granted to it. Congress may repeal, alter and supplement the rules promulgated by this Court, but the authority and responsibility over the admission, suspension, disbarment and reinstatement of attorneys at law and their supervision remain vested in the Supreme Court. The power to repeal, alter and supplement the rules does not signify nor permit that Congress substitute or take the place of this Tribunal in the exercise of its primary power on the matter. The Constitution does not say nor mean that Congress may admit, suspend, disbar or reinstate directly attorneys at law, or a determinate group of individuals to the practice of law. Its power is limited to repeal, modify or supplement the existing rules on the matter, if according to its judgment the need for a better service of the legal profession requires it. But this power does not relieve this Court of its responsibility to admit, suspend, disbar and reinstate attorneys at law and supervise the practice of the legal profession. Being coordinate and independent branches, the power to promulgate and enforce rules for the admission to the practice of law and the concurrent power to repeal, alter and supplement them may and should be exercised with the respect that each owes to the other, giving careful consideration to the responsibility which the nature of each department requires. These powers have existed together for centuries without diminution on each part; the harmonious delimitation being found in that the legislature may and should examine if the existing rules on the admission to the Bar respond to the demands which public interest requires of a Bar endowed with high virtues, culture, training and responsibility. The legislature may, by means of appeal, amendment or supplemental rules, fill up any deficiency that it may find, and the judicial power, which has the inherent responsibility for a good and efficient administration of justice and the supervision of the practice of the legal profession, should consider these reforms as the minimum standards for the elevation of the profession, and see to it that with these reforms the lofty objective that is desired in the exercise of its traditional duty of admitting, suspending, disbarring and reinstating attorneys at law is realized. They are powers which, exercise within their proper constitutional limits, are not repugnant, but rather complementary to each

other in attaining the establishment of a Bar that would respond to the increasing and exacting necessities of the administration of justice. The case of Guaria (1913) 24 Phil., 37, illustrates our criterion. Guaria took examination and failed by a few points to obtain the general average. A recently enacted law provided that one who had been appointed to the position of Fiscal may be admitted to the practice of law without a previous examination. The Government appointed Guaria and he discharged the duties of Fiscal in a remote province. This tribunal refused to give his license without previous examinations. The court said: Relying upon the provisions of section 2 of Act No. 1597, the applicant in this case seeks admission to the bar, without taking the prescribed examination, on the ground that he holds the office of provincial fiscal for the Province of Batanes. Section 2 of Act No. 1597, enacted February 28, 1907, is as follows: Sec. 2. Paragraph one of section thirteen of Act Numbered One Hundred and ninety, entitled "An Act providing a Code of Procedure in Civil Actions and Special Proceedings in the Philippine Islands," is hereby amended to read as follows: 1. Those who have been duly licensed under the laws and orders of the Islands under the sovereignty of Spain or of the United States and are in good and regular standing as members of the bar of the Philippine Islands at the time of the adoption of this code; Provided, That any person who, prior to the passage of this act, or at any time thereafter, shall have held, under the authority of the United States, the position of justice of the Supreme Court, judge of the Court of First Instance, or judge or associate judge of the Court of Land Registration, of the Philippine Islands, or the position of Attorney General, Solicitor General, Assistant Attorney General, assistant attorney in the office of the Attorney General, prosecuting attorney for the City of Manila, city attorney of Manila, assistant city attorney of Manila, provincial fiscal, attorney for the Moro Province, or assistant attorney for the Moro Province, may be licensed to practice law in the courts of the Philippine Islands without an examination, upon motion before the Supreme Court and establishing such fact to the satisfaction of said court.

The records of this court disclose that on a former occasion this appellant took, and failed to pass the prescribed examination. The report of the examining board, dated March 23, 1907, shows that he received an average of only 71 per cent in the various branches of legal learning upon which he was examined, thus falling four points short of the required percentage of 75. We would be delinquent in the performance of our duty to the public and to the bar, if, in the face of this affirmative indication of the deficiency of the applicant in the required qualifications of learning in the law at the time when he presented his former application for admission to the bar, we should grant him license to practice law in the courts of these Islands, without first satisfying ourselves that despite his failure to pass the examination on that occasion, he now "possesses the necessary qualifications of learning and ability." But it is contented that under the provisions of the above-cited statute the applicant is entitled as of right to be admitted to the bar without taking the prescribed examination "upon motion before the Supreme Court" accompanied by satisfactory proof that he has held and now holds the office of provincial fiscal of the Province of Batanes. It is urged that having in mind the object which the legislator apparently sought to attain in enacting the above-cited amendment to the earlier statute, and in view of the context generally and especially of the fact that the amendment was inserted as a proviso in that section of the original Act which specifically provides for the admission of certain candidates without examination. It is contented that this mandatory construction is imperatively required in order to give effect to the apparent intention of the legislator, and to the candidate's claim de jure to have the power exercised. And after copying article 9 of Act of July 1, 1902 of the Congress of the United States, articles 2, 16 and 17 of Act No. 136, and articles 13 to 16 of Act 190, the Court continued: Manifestly, the jurisdiction thus conferred upon this court by the commission and confirmed to it by the Act of Congress would be limited and restricted, and in a case such as that under consideration wholly destroyed, by giving the word "may," as used in the above citation from Act of Congress of July 1, 1902, or of any Act of Congress prescribing, defining or limiting the power conferred upon the commission is to that extent invalid and void, as transcending its rightful limits and authority.

Speaking on the application of the law to those who were appointed to the positions enumerated, and with particular emphasis in the case of Guaria, the Court held: In the various cases wherein applications for the admission to the bar under the provisions of this statute have been considered heretofore, we have accepted the fact that such appointments had been made as satisfactory evidence of the qualifications of the applicant. But in all of those cases we had reason to believe that the applicants had been practicing attorneys prior to the date of their appointment. In the case under consideration, however, it affirmatively appears that the applicant was not and never had been practicing attorney in this or any other jurisdiction prior to the date of his appointment as provincial fiscal, and it further affirmatively appears that he was deficient in the required qualifications at the time when he last applied for admission to the bar. In the light of this affirmative proof of his defieciency on that occasion, we do not think that his appointment to the office of provincial fiscal is in itself satisfactory proof if his possession of the necessary qualifications of learning and ability. We conclude therefore that this application for license to practice in the courts of the Philippines, should be denied. In view, however, of the fact that when he took the examination he fell only four points short of the necessary grade to entitle him to a license to practice; and in view also of the fact that since that time he has held the responsible office of the governor of the Province of Sorsogon and presumably gave evidence of such marked ability in the performance of the duties of that office that the Chief Executive, with the consent and approval of the Philippine Commission, sought to retain him in the Government service by appointing him to the office of provincial fiscal, we think we would be justified under the above-cited provisions of Act No. 1597 in waiving in his case the ordinary examination prescribed by general rule, provided he offers satisfactory evidence of his proficiency in a special examination which will be given him by a committee of the court upon his application therefor, without prejudice to his right, if he desires so to do, to present himself at any of the ordinary examinations prescribed by general rule. (In re Guaria, pp. 48-49.)

It is obvious, therefore, that the ultimate power to grant license for the practice of law belongs exclusively to this Court, and the law passed by Congress on the matter is of permissive character, or as other authorities say, merely to fix the minimum conditions for the license. The law in question, like those in the case of Day and Cannon, has been found also to suffer from the fatal defect of being a class legislation, and that if it has intended to make a classification, it is arbitrary and unreasonable. In the case of Day, a law enacted on February 21, 1899 required of the Supreme Court, until December 31 of that year, to grant license for the practice of law to those students who began studying before November 4, 1897, and had studied for two years and presented a diploma issued by a school of law, or to those who had studied in a law office and would pass an examination, or to those who had studied for three years if they commenced their studies after the aforementioned date. The Supreme Court declared that this law was unconstitutional being, among others, a class legislation. The Court said: This is an application to this court for admission to the bar of this state by virtue of diplomas from law schools issued to the applicants. The act of the general assembly passed in 1899, under which the application is made, is entitled "An act to amend section 1 of an act entitled "An act to revise the law in relation to attorneys and counselors," approved March 28, 1884, in force July 1, 1874." The amendment, so far as it appears in the enacting clause, consists in the addition to the section of the following: "And every application for a license who shall comply with the rules of the supreme court in regard to admission to the bar in force at the time such applicant commend the study of law, either in a law or office or a law school or college, shall be granted a license under this act notwithstanding any subsequent changes in said rules". In re Day et al, 54 N.Y., p. 646. . . . After said provision there is a double proviso, one branch of which is that up to December 31, 1899, this court shall grant a license of admittance to the bar to the holder of every diploma regularly issued by any law school regularly organized under the laws of this state, whose regular course of law studies is two years, and requiring an attendance by the student of at least 36 weeks in each of such years, and showing that the student began the study of law prior to November 4, 1897, and accompanied with the usual proofs of good moral character. The other branch

of the proviso is that any student who has studied law for two years in a law office, or part of such time in a law office, "and part in the aforesaid law school," and whose course of study began prior to November 4, 1897, shall be admitted upon a satisfactory examination by the examining board in the branches now required by the rules of this court. If the right to admission exists at all, it is by virtue of the proviso, which, it is claimed, confers substantial rights and privileges upon the persons named therein, and establishes rules of legislative creation for their admission to the bar. (p. 647.) Considering the proviso, however, as an enactment, it is clearly a special legislation, prohibited by the constitution, and invalid as such. If the legislature had any right to admit attorneys to practice in the courts and take part in the administration of justice, and could prescribe the character of evidence which should be received by the court as conclusive of the requisite learning and ability of persons to practice law, it could only be done by a general law, persons or classes of persons. Const. art 4, section 2. The right to practice law is a privilege, and a license for that purpose makes the holder an officer of the court, and confers upon him the right to appear for litigants, to argue causes, and to collect fees therefor, and creates certain exemptions, such as from jury services and arrest on civil process while attending court. The law conferring such privileges must be general in its operation. No doubt the legislature, in framing an enactment for that purpose, may classify persons so long as the law establishing classes in general, and has some reasonable relation to the end sought. There must be some difference which furnishes a reasonable basis for different one, having no just relation to the subject of the legislation. Braceville Coal Co. vs. People, 147 Ill. 66, 35 N.E. 62; Ritchie vs. People, 155 Ill. 98, 40 N.E. 454; Railroad Co. vs. Ellis, 165 U.S. 150, 17 Sup. Ct. 255. The length of time a physician has practiced, and the skill acquired by experience, may furnish a basis for classification (Williams vs. People 121 Ill. 48, II N.E. 881); but the place where such physician has resided and practiced his profession cannot furnish such basis, and is an arbitrary discrimination, making an enactment based upon it void (State vs. Pennyeor, 65 N.E. 113, 18 Atl. 878). Here the legislature undertakes to say what shall serve as a test of fitness for the profession of the law, and plainly, any classification must have some reference to learning, character, or ability to engage in such practice. The proviso is

limited, first, to a class of persons who began the study of law prior to November 4, 1897. This class is subdivided into two classes First, those presenting diplomas issued by any law school of this state before December 31, 1899; and, second, those who studied law for the period of two years in a law office, or part of the time in a law school and part in a law office, who are to be admitted upon examination in the subjects specified in the present rules of this court, and as to this latter subdivision there seems to be no limit of time for making application for admission. As to both classes, the conditions of the rules are dispensed with, and as between the two different conditions and limits of time are fixed. No course of study is prescribed for the law school, but a diploma granted upon the completion of any sort of course its managers may prescribe is made all-sufficient. Can there be anything with relation to the qualifications or fitness of persons to practice law resting upon the mere date of November 4, 1897, which will furnish a basis of classification. Plainly not. Those who began the study of law November 4th could qualify themselves to practice in two years as well as those who began on the 3rd. The classes named in the proviso need spend only two years in study, while those who commenced the next day must spend three years, although they would complete two years before the time limit. The one who commenced on the 3rd. If possessed of a diploma, is to be admitted without examination before December 31, 1899, and without any prescribed course of study, while as to the other the prescribed course must be pursued, and the diploma is utterly useless. Such classification cannot rest upon any natural reason, or bear any just relation to the subject sought, and none is suggested. The proviso is for the sole purpose of bestowing privileges upon certain defined persons. (pp. 647-648.) In the case of Cannon above cited, State vs. Cannon, 240 N.W. 441, where the legislature attempted by law to reinstate Cannon to the practice of law, the court also held with regards to its aspect of being a class legislation: But the statute is invalid for another reason. If it be granted that the legislature has power to prescribe ultimately and definitely the qualifications upon which courts must admit and license those applying as attorneys at law, that power can not be exercised in the manner here attempted. That power must be exercised through general laws which will apply to all alike and accord equal opportunity to all. Speaking of the right of the Legislature to exact qualifications of those desiring to pursue chosen callings, Mr.

Justice Field in the case of Dent. vs. West Virginia, 129 U.S. 114, 121, 9 S. Ct. 232, 233, 32 L. Ed. 626, said: "It is undoubtedly the right of every citizen of the United States to follow any lawful calling, business or profession he may choose, subject only to such restrictions as are imposed upon all persons of like age, sex, and condition." This right may in many respects be considered as a distinguishing feature of our republican institutions. Here all vocations are all open to every one on like conditions. All may be pursued as sources of livelihood, some requiring years of study and great learning for their successful prosecution. The interest, or, as it is sometimes termed, the "estate" acquired in them that is, the right to continue their prosecution is often of great value to the possessors and cannot be arbitrarily taken from them, any more than their real or personal property can be thus taken. It is fundamental under our system of government that all similarly situated and possessing equal qualifications shall enjoy equal opportunities. Even statutes regulating the practice of medicine, requiring medications to establish the possession on the part of the application of his proper qualifications before he may be licensed to practice, have been challenged, and courts have seriously considered whether the exemption from such examinations of those practicing in the state at the time of the enactment of the law rendered such law unconstitutional because of infringement upon this general principle. State vs. Thomas Call, 121 N.C. 643, 28 S.E. 517; see, also, The State ex rel. Winkler vs. Rosenberg, 101 Wis. 172, 76 N.W. 345; State vs. Whitcom, 122 Wis. 110, 99 N.W. 468. This law singles out Mr. Cannon and assumes to confer upon him the right to practice law and to constitute him an officer of this Court as a mere matter of legislative grace or favor. It is not material that he had once established his right to practice law and that one time he possessed the requisite learning and other qualifications to entitle him to that right. That fact in no matter affect the power of the Legislature to select from the great body of the public an individual upon whom it would confer its favors. A statute of the state of Minnesota (Laws 1929, c. 424) commanded the Supreme Court to admit to the practice of law without examination, all who had served in the military or naval forces of the United States during the World War and received a honorable discharge therefrom and who (were disabled therein or thereby within the purview of the Act of Congress approved June 7th, 1924, known as "World War Veteran's Act, 1924 and whose

disability is rated at least ten per cent thereunder at the time of the passage of this Act." This Act was held |unconstitutional on the ground that it clearly violated the quality clauses of the constitution of that state. In re Application of George W. Humphrey, 178 Minn. 331, 227 N.W. 179. A good summary of a classification constitutionally acceptable is explained in 12 Am. Jur. 151-153 as follows: The general rule is well settled by unanimity of the authorities that a classification to be valid must rest upon material differences between the person included in it and those excluded and, furthermore, must be based upon substantial distinctions. As the rule has sometimes avoided the constitutional prohibition, must be founded upon pertinent and real differences, as distinguished from irrelevant and artificial ones. Therefore, any law that is made applicable to one class of citizens only must be based on some substantial difference between the situation of that class and other individuals to which it does not apply and must rest on some reason on which it can be defended. In other words, there must be such a difference between the situation and circumstances of all the members of the class and the situation and circumstances of all other members of the state in relation to the subjects of the discriminatory legislation as presents a just and natural cause for the difference made in their liabilities and burdens and in their rights and privileges. A law is not general because it operates on all within a clause unless there is a substantial reason why it is made to operate on that class only, and not generally on all. (12 Am. Jur. pp. 151-153.) Pursuant to the law in question, those who, without a grade below 50 per cent in any subject, have obtained a general average of 69.5 per cent in the bar examinations in 1946 to 1951, 70.5 per cent in 1952, 71.5 per cent in 1953, and those will obtain 72.5 per cent in 1954, and 73.5 per cent in 1955, will be permitted to take and subscribe the corresponding oath of office as members of the Bar, notwithstanding that the rules require a minimum general average of 75 per cent, which has been invariably followed since 1950. Is there any motive of the nature indicated by the abovementioned authorities, for this classification ? If there is none, and none has been given, then the classification is fatally defective. It was indicated that those who failed in 1944, 1941 or the years before, with the general average indicated, were not included because the

Tribunal has no record of the unsuccessful candidates of those years. This fact does not justify the unexplained classification of unsuccessful candidates by years, from 1946-1951, 1952, 1953, 1954, 1955. Neither is the exclusion of those who failed before said years under the same conditions justified. The fact that this Court has no record of examinations prior to 1946 does not signify that no one concerned may prove by some other means his right to an equal consideration. To defend the disputed law from being declared unconstitutional on account of its retroactivity, it is argued that it is curative, and that in such form it is constitutional. What does Rep. Act 972 intend to cure ? Only from 1946 to 1949 were there cases in which the Tribunal permitted admission to the bar of candidates who did not obtain the general average of 75 per cent: in 1946 those who obtained only 72 per cent; in the 1947 and those who had 69 per cent or more; in 1948, 70 per cent and in 1949, 74 per cent; and in 1950 to 1953, those who obtained 74 per cent, which was considered by the Court as equivalent to 75 per cent as prescribed by the Rules, by reason of circumstances deemed to be sufficiently justifiable. These changes in the passing averages during those years were all that could be objected to or criticized. Now, it is desired to undo what had been done cancel the license that was issued to those who did not obtain the prescribed 75 per cent ? Certainly not. The disputed law clearly does not propose to do so. Concededly, it approves what has been done by this Tribunal. What Congress lamented is that the Court did not consider 69.5 per cent obtained by those candidates who failed in 1946 to 1952 as sufficient to qualify them to practice law. Hence, it is the lack of will or defect of judgment of the Court that is being cured, and to complete the cure of this infirmity, the effectivity of the disputed law is being extended up to the years 1953, 1954 and 1955, increasing each year the general average by one per cent, with the order that said candidates be admitted to the Bar. This purpose, manifest in the said law, is the best proof that what the law attempts to amend and correct are not the rules promulgated, but the will or judgment of the Court, by means of simply taking its place. This is doing directly what the Tribunal should have done during those years according to the judgment of Congress. In other words, the power exercised was not to repeal, alter or supplement the rules, which continue in force. What was done was to stop or suspend them. And this power is not included in what the Constitution has granted to Congress, because it falls within the power to apply the rules. This power corresponds to the judiciary, to which such duty been confided. Article 2 of the law in question permits partial passing of examinations, at indefinite intervals. The grave defect of this system is that it does not take

into account that the laws and jurisprudence are not stationary, and when a candidate finally receives his certificate, it may happen that the existing laws and jurisprudence are already different, seriously affecting in this manner his usefulness. The system that the said law prescribes was used in the first bar examinations of this country, but was abandoned for this and other disadvantages. In this case, however, the fatal defect is that the article is not expressed in the title will have temporary effect only from 1946 to 1955, the text of article 2 establishes a permanent system for an indefinite time. This is contrary to Section 21 (1), article VI of the Constitution, which vitiates and annuls article 2 completely; and because it is inseparable from article 1, it is obvious that its nullity affect the entire law. Laws are unconstitutional on the following grounds: first, because they are not within the legislative powers of Congress to enact, or Congress has exceeded its powers; second, because they create or establish arbitrary methods or forms that infringe constitutional principles; and third, because their purposes or effects violate the Constitution or its basic principles. As has already been seen, the contested law suffers from these fatal defects. Summarizing, we are of the opinion and hereby declare that Republic Act No. 972 is unconstitutional and therefore, void, and without any force nor effect for the following reasons, to wit: 1. Because its declared purpose is to admit 810 candidates who failed in the bar examinations of 1946-1952, and who, it admits, are certainly inadequately prepared to practice law, as was exactly found by this Court in the aforesaid years. It decrees the admission to the Bar of these candidates, depriving this Tribunal of the opportunity to determine if they are at present already prepared to become members of the Bar. It obliges the Tribunal to perform something contrary to reason and in an arbitrary manner. This is a manifest encroachment on the constitutional responsibility of the Supreme Court. 2. Because it is, in effect, a judgment revoking the resolution of this Court on the petitions of these 810 candidates, without having examined their respective examination papers, and although it is admitted that this Tribunal may reconsider said resolution at any time for justifiable reasons, only this Court and no other may revise and alter them. In attempting to do it directly Republic Act No. 972 violated the Constitution.

3. By the disputed law, Congress has exceeded its legislative power to repeal, alter and supplement the rules on admission to the Bar. Such additional or amendatory rules are, as they ought to be, intended to regulate acts subsequent to its promulgation and should tend to improve and elevate the practice of law, and this Tribunal shall consider these rules as minimum norms towards that end in the admission, suspension, disbarment and reinstatement of lawyers to the Bar, inasmuch as a good bar assists immensely in the daily performance of judicial functions and is essential to a worthy administration of justice. It is therefore the primary and inherent prerogative of the Supreme Court to render the ultimate decision on who may be admitted and may continue in the practice of law according to existing rules. 4. The reason advanced for the pretended classification of candidates, which the law makes, is contrary to facts which are of general knowledge and does not justify the admission to the Bar of law students inadequately prepared. The pretended classification is arbitrary. It is undoubtedly a class legislation. 5. Article 2 of Republic Act No. 972 is not embraced in the title of the law, contrary to what the Constitution enjoins, and being inseparable from the provisions of article 1, the entire law is void. 6. Lacking in eight votes to declare the nullity of that part of article 1 referring to the examinations of 1953 to 1955, said part of article 1, insofar as it concerns the examinations in those years, shall continue in force.

1. That (a) the portion of article 1 of Republic Act No. 972 referring to the examinations of 1946 to 1952, and (b) all of article 2 of said law are unconstitutional and, therefore, void and without force and effect. 2. That, for lack of unanimity in the eight Justices, that part of article 1 which refers to the examinations subsequent to the approval of the law, that is from 1953 to 1955 inclusive, is valid and shall continue to be in force, in conformity with section 10, article VII of the Constitution. Consequently, (1) all the above-mentioned petitions of the candidates who failed in the examinations of 1946 to 1952 inclusive are denied, and (2) all candidates who in the examinations of 1953 obtained a general average of 71.5 per cent or more, without having a grade below 50 per cent in any subject, are considered as having passed, whether they have filed petitions for admission or not. After this decision has become final, they shall be permitted to take and subscribe the corresponding oath of office as members of the Bar on the date or dates that the chief Justice may set. So ordered. Bengzon, Montemayor, Jugo, Labrador, Pablo, Padilla, and Reyes, JJ., concur.

There are the unsuccessful candidates totaling 604 directly affected by this resolution. Adding 490 candidates who have not presented any petition, they reach a total of 1,094. The Enactment of Republic Act No. 972

RESOLUTION Upon mature deliberation by this Court, after hearing and availing of the magnificent and impassioned discussion of the contested law by our Chief Justice at the opening and close of the debate among the members of the Court, and after hearing the judicious observations of two of our beloved colleagues who since the beginning have announced their decision not to take part in voting, we, the eight members of the Court who subscribed to this decision have voted and resolved, and have decided for the Court, and under the authority of the same:

As will be observed from Annex I, this Court reduced to 72 per cent the passing general average in the bar examination of august and November of 1946; 69 per cent in 1947; 70 per cent in 1948; 74 per cent in 1949; maintaining the prescribed 75 per cent since 1950, but raising to 75 per cent those who obtained 74 per cent since 1950. This caused the introduction in 1951, in the Senate of the Philippines of Bill No. 12 which was intended to amend Sections 5, 9, 12, 14 and 16 of Rule 127 of the Rules of Court, concerning the admission of attorneys-at-law to the practice of the profession. The amendments embrace many interesting matters, but those referring to sections 14 and 16 immediately concern us. The proposed amendment is as follows:

SEC. 14. Passing average. In order that a candidate may be deemed to have passed the examinations successfully, he must have obtained a general average of 70 per cent without falling below 50 per cent in any subject. In determining the average, the foregoing subjects shall be given the following relative weights: Civil Law, 20 per cent; Land Registration and Mortgages, 5 per cent; Mercantile Law, 15 per cent; Criminal Law, 10 per cent; Political Law, 10 per cent; International Law, 5 per cent; Remedial Law, 20 per cent; Legal Ethics and Practical Exercises, 5 per cent; Social Legislation, 5 per cent; Taxation, 5 per cent. Unsuccessful candidates shall not be required to take another examination in any subject in which they have obtained a rating of 70 per cent or higher and such rating shall be taken into account in determining their general average in any subsequent examinations: Provided, however, That if the candidate fails to get a general average of 70 per cent in his third examination, he shall lose the benefit of having already passed some subjects and shall be required to the examination in all the subjects. SEC. 16. Admission and oath of successful applicants. Any applicant who has obtained a general average of 70 per cent in all subjects without falling below 50 per cent in any examination held after the 4th day of July, 1946, or who has been otherwise found to be entitled to admission to the bar, shall be allowed to take and subscribe before the Supreme Court the corresponding oath of office. (Arts. 4 and 5, 8, No. 12). With the bill was an Explanatory Note, the portion pertinent to the matter before us being: It seems to be unfair that unsuccessful candidates at bar examinations should be compelled to repeat even those subjects which they have previously passed. This is not the case in any other government examination. The Rules of Court have therefore been amended in this measure to give a candidate due credit for any subject which he has previously passed with a rating of 75 per cent or higher." Senate Bill No. 12 having been approved by Congress on May 3, 1951, the President requested the comments of this Tribunal before acting on the same. The comment was signed by seven Justices while three chose to refrain from making any and one took no part. With regards to the matter that interests us, the Court said:

The next amendment is of section 14 of Rule 127. One part of this amendment provides that if a bar candidate obtains 70 per cent or higher in any subject, although failing to pass the examination, he need not be examined in said subject in his next examination. This is a sort of passing the Bar Examination on the installment plan, one or two or three subjects at a time. The trouble with this proposed system is that although it makes it easier and more convenient for the candidate because he may in an examination prepare himself on only one or two subjects so as to insure passing them, by the time that he has passed the last required subjects, which may be several years away from the time that he reviewed and passed the firs subjects, he shall have forgotten the principles and theories contained in those subjects and remembers only those of the one or two subjects that he had last reviewed and passed. This is highly possible because there is nothing in the law which requires a candidate to continue taking the Bar examinations every year in succession. The only condition imposed is that a candidate, on this plan, must pass the examination in no more that three installments; but there is no limitation as to the time or number of years intervening between each examination taken. This would defeat the object and the requirements of the law and the Court in admitting persons to the practice of law. When a person is so admitted, it is to be presumed and presupposed that he possesses the knowledge and proficiency in the law and the knowledge of all law subjects required in bar examinations, so as presently to be able to practice the legal profession and adequately render the legal service required by prospective clients. But this would not hold true of the candidates who may have obtained a passing grade on any five subjects eight years ago, another three subjects one year later, and the last two subjects the present year. We believe that the present system of requiring a candidate to obtain a passing general average with no grade in any subject below 50 per cent is more desirable and satisfactory. It requires one to be all around, and prepared in all required legal subjects at the time of admission to the practice of law. xxx xxx xxx

We now come to the last amendment, that of section 16 of Rule 127. This amendment provides that any application who has obtained a general average of 70 per cent in all subjects without failing below 50 per cent in any subject in any examination held after the 4th day of July, 1946, shall be allowed to take and

subscribe the corresponding oath of office. In other words, Bar candidates who obtained not less than 70 per cent in any examination since the year 1946 without failing below 50 per cent in any subject, despite their non-admission to the Bar by the Supreme Court because they failed to obtain a passing general average in any of those years, will be admitted to the Bar. This provision is not only prospective but retroactive in its effects. We have already stated in our comment on the next preceding amendment that we are not exactly in favor of reducing the passing general average from 75 per cent to 70 per cent to govern even in the future. As to the validity of making such reduction retroactive, we have serious legal doubts. We should not lose sight of the fact that after every bar examinations, the Supreme Court passes the corresponding resolution not only admitting to the Bar those who have obtained a passing general average grade, but also rejecting and denying the petitions for reconsideration of those who have failed. The present amendment would have the effect of repudiating, reversing and revoking the Supreme Court's resolution denying and rejecting the petitions of those who may have obtained an average of 70 per cent or more but less than the general passing average fixed for that year. It is clear that this question involves legal implications, and this phase of the amendment if finally enacted into law might have to go thru a legal test. As one member of the Court remarked during the discussion, when a court renders a decision or promulgate a resolution or order on the basis of and in accordance with a certain law or rule then in force, the subsequent amendment or even repeal of said law or rule may not affect the final decision, order, or resolution already promulgated, in the sense of revoking or rendering it void and of no effect. Another aspect of this question to be considered is the fact that members of the bar are officers of the courts, including the Supreme Court. When a Bar candidate is admitted to the Bar, the Supreme Court impliedly regards him as a person fit, competent and qualified to be its officer. Conversely, when it refused and denied admission to the Bar to a candidate who in any year since 1946 may have obtained a general average of 70 per cent but less than that required for that year in order to pass, the Supreme Court equally and impliedly considered and declared that he was not prepared, ready, competent and qualified to be its officer. The present amendment giving retroactivity to the reduction of the

passing general average runs counter to all these acts and resolutions of the Supreme Court and practically and in effect says that a candidate not accepted, and even rejected by the Court to be its officer because he was unprepared, undeserving and unqualified, nevertheless and in spite of all, must be admitted and allowed by this Court to serve as its officer. We repeat, that this is another important aspect of the question to be carefully and seriously considered. The President vetoed the bill on June 16, 1951, stating the following: I am fully in accord with the avowed objection of the bill, namely, to elevate the standard of the legal profession and maintain it on a high level. This is not achieved, however, by admitting to practice precisely a special class who have failed in the bar examination, Moreover, the bill contains provisions to which I find serious fundamental objections. Section 5 provides that any applicant who has obtained a general average of 70 per cent in all subjects without failing below 50 per cent in any subject in any examination held after the 4th day of July, 1946, shall be allowed to take and subscribed the corresponding oath of office. This provision constitutes class legislation, benefiting as it does specifically one group of persons, namely, the unsuccessful candidates in the 1946, 1947, 1948, 1949 and 1950 bar examinations. The same provision undertakes to revoke or set aside final resolutions of the Supreme Court made in accordance with the law then in force. It should be noted that after every bar examination the Supreme Court passes the corresponding resolution not only admitting to the Bar those who have obtained a passing general average but also rejecting and denying the petitions for reconsideration of those who have failed. The provision under consideration would have the effect of revoking the Supreme Court's resolution denying and rejecting the petitions of those who may have failed to obtain the passing average fixed for that year. Said provision also sets a bad precedent in that the Government would be morally obliged to grant a similar privilege to those who have failed in the examinations for admission to other professions such as medicine, engineering, architecture and certified public accountancy.

Consequently, the bill was returned to the Congress of the Philippines, but it was not repassed by 2/3 vote of each House as prescribed by section 20, article VI of the Constitution. Instead Bill No. 371 was presented in the Senate. It reads as follows: AN ACT TO FIX THE PASSING MARKS FOR BAR EXAMINATIONS FROM 1946 UP TO AND INCLUDING 1953 Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled: SECTION 1. Notwithstanding the provisions of section 14, Rule 127 of the Rules of Court, any bar candidate who obtained a general average of 70 per cent in any bar examinations after July 4, 1946 up to the August 1951 Bar examinations; 71 per cent in the 1952 bar examinations; 72 per cent in the 1953 bar examinations; 73 per cent in the 1954 bar examinations; 74 per cent in 1955 bar examinations without a candidate obtaining a grade below 50 per cent in any subject, shall be allowed to take and subscribe the corresponding oath of office as member of the Philippine Bar; Provided, however, That 75 per cent passing general average shall be restored in all succeeding examinations; and Provided, finally, That for the purpose of this Act, any exact one-half or more of a fraction, shall be considered as one and included as part of the next whole number. SEC. 2. Any bar candidate who obtained a grade of 75 per cent in any subject in any bar examination after July 4, 1945 shall be deemed to have passed in such subject or subjects and such grade or grades shall be included in computing the passing general average that said candidate may obtain in any subsequent examinations that he may take. SEC. 3. This bill shall take effect upon its approval. With the following explanatory note: This is a revised Bar bill to meet the objections of the President and to afford another opportunity to those who feel themselves discriminated by the Supreme Court from 1946 to 1951 when those who would otherwise have passed the bar examination but were arbitrarily not so considered by altering its previous decisions of the passing mark. The Supreme Court has been

altering the passing mark from 69 in 1947 to 74 in 1951. In order to cure the apparent arbitrary fixing of passing grades and to give satisfaction to all parties concerned, it is proposed in this bill a gradual increase in the general averages for passing the bar examinations as follows; For 1946 to 1951 bar examinations, 70 per cent; for 1952 bar examination, 71 per cent; for 1953 bar examination, 72 per cent; for 1954 bar examination, 73 percent; and for 1955 bar examination, 74 per cent. Thus in 1956 the passing mark will be restored with the condition that the candidate shall not obtain in any subject a grade of below 50 per cent. The reason for relaxing the standard 75 per cent passing grade, is the tremendous handicap which students during the years immediately after the Japanese occupation has to overcome such as the insufficiency of reading materials and the inadequacy of the preparation of students who took up law soon after the liberation. It is believed that by 1956 the preparation of our students as well as the available reading materials will be under normal conditions, if not improved from those years preceding the last world war. In this will we eliminated altogether the idea of having our Supreme Court assumed the supervision as well as the administration of the study of law which was objected to by the President in the Bar Bill of 1951. The President in vetoing the Bar Bill last year stated among his objections that the bill would admit to the practice of law "a special class who failed in the bar examination". He considered the bill a class legislation. This contention, however, is not, in good conscience, correct because Congress is merely supplementing what the Supreme Court have already established as precedent by making as low as 69 per cent the passing mark of those who took the Bar examination in 1947. These bar candidates for who this bill should be enacted, considered themselves as having passed the bar examination on the strength of the established precedent of our Supreme Court and were fully aware of the insurmountable difficulties and handicaps which they were unavoidably placed. We believe that such precedent cannot or could not have been altered, constitutionally, by the Supreme Court, without giving due consideration to the rights already accrued or vested in the bar candidates who took the examination when the precedent was not yet altered, or in effect, was still enforced and without being inconsistent with the principles of their previous resolutions.

If this bill would be enacted, it shall be considered as a simple curative act or corrective statute which Congress has the power to enact. The requirement of a "valid classification" as against class legislation, is very expressed in the following American Jurisprudence: A valid classification must include all who naturally belong to the class, all who possess a common disability, attribute, or classification, and there must be a "natural" and substantial differentiation between those included in the class and those it leaves untouched. When a class is accepted by the Court as "natural" it cannot be again split and then have the dissevered factions of the original unit designated with different rules established for each. (Fountain Park Co. vs. Rensier, 199 Ind. 95, N. E. 465 (1926). Another case penned by Justice Cardozo: "Time with its tides brings new conditions which must be cared for by new laws. Sometimes the new conditions affect the members of a class. If so, the correcting statute must apply to all alike. Sometimes the condition affect only a few. If so, the correcting statute may be as narrow as the mischief. The constitution does not prohibit special laws inflexibly and always. It permits them when there are special evils with which the general laws are incompetent to cope. The special public purpose will sustain the special form. . . . The problem in the last analysis is one of legislative policy, with a wide margin of discretion conceded to the lawmakers. Only in the case of plain abuse will there be revision by the court. (In Williams vs. Mayor and City Council of Baltimore, 286 U. S. 36, 77 L. Ed. 1015, 53 Sup. Ct. 431). (1932) This bill has all the earmarks of a corrective statute which always retroacts to the extent of the care of correction only as in this case from 1946 when the Supreme Court first deviated from the rule of 75 per cent in the Rules of Court. For the foregoing purposes the approval of this bill is earnestly recommended. (Sgd.) PABLO ANGELES DAVID Senator

Without much debate, the revised bill was passed by Congress as above transcribed. The President again asked the comments of this Court, which endorsed the following: Respectfully returned to the Honorable, the Acting Executive Secretary, Manila, with the information that, with respect to Senate Bill No. 371, the members of the Court are taking the same views they expressed on Senate Bill No. 12 passed by Congress in May, 1951, contained in the first indorsement of the undersigned dated June 5, 1951, to the Assistant Executive Secretary. (Sgd.) RICARDO PARAS The President allowed the period within which the bill should be signed to pass without vetoing it, by virtue of which it became a law on June 21, 1953 (Sec. 20, Art. VI, Constitution) numbered 972 (many times erroneously cited as No. 974). It may be mentioned in passing that 1953 was an election year, and that both the President and the author of the Bill were candidates for reelection, together, however, they lost in the polls.

Separate Opinions LABRADOR, J., concurring and dissenting: The right to admit members to the Bar is, and has always been, the exclusive privilege of this Court, because lawyers are members of the Court and only this Court should be allowed to determine admission thereto in the interest of the principle of the separation of powers. The power to admit is judicial in the sense that discretion is used in is exercise. This power should be distinguished from the power to promulgate rules which regulate admission. It is only this power (to promulgate amendments to the rules) that is given in the Constitution to the Congress, not the exercise of the discretion to admit or not to admit. Thus the rules on the holding of examination, the qualifications of applicants, the passing grades, etc. are within the scope of the legislative power. But the power to determine when a candidate has made or has

not made the required grade is judicial, and lies completely with this Court. I hold that the act under consideration is an exercise of the judicial function, and lies beyond the scope of the congressional prerogative of amending the rules. To say that candidates who obtain a general average of 72 per cent in 1953, 73 per cent in 1954, and 74 per cent in 1955 should be considered as having passed the examination, is to mean exercise of the privilege and discretion judged in this Court. It is a mandate to the tribunal to pass candidates for different years with grades lower than the passing mark. No reasoning is necessary to show that it is an arrogation of the Court's judicial authority and discretion. It is furthermore objectionable as discriminatory. Why should those taking the examinations in 1953, 1954 and 1955 be allowed to have the privilege of a lower passing grade, while those taking earlier or later are not? I vote that the act in toto be declared unconstitutional, because it is not embraced within the rule-making power of Congress, because it is an undue interference with the power of this Court to admit members thereof, and because it is discriminatory.

general average of 73 per cent or more but below 75 per cent were included. After the original list of 1947 successful bar candidates had been released, and on motion for reconsideration, all candidates with a general average of 69 per cent were allowed to pass by resolution of July 15, 1948. With respect to the bar examinations held in August, 1948, in addition to the original list of successful bar candidates, all those who obtained a general average of 70 per cent or more, irrespective of the grades in any one subject and irrespective of whether they filed petitions for reconsideration, were allowed to pass by resolution of April 28, 1949. Thus, for the year 1947 the Court in effect made 69 per cent as the passing average, and for the year 1948, 70 per cent; and this amounted, without being noticed perhaps, to an amendment of section 14 of Rule 127. Numerous flunkers in the bar examinations held subsequent to 1948, whose general averages mostly ranged from 69 to 73 per cent, filed motions for reconsideration invoking the precedents set by this Court in 1947 and 1948, but said motions were uniformly denied. In the year 1951, the Congress, after public hearings where law deans and professors, practising attorneys, presidents of bar associations, and law graduates appeared and argued lengthily pro or con, approved a bill providing, among others, for the reduction of the passing general average from 75 per cent to 70 per cent, retroactive to any bar examination held after July 4, 1946. This bill was vetoed by the President mainly in view of an unfavorable comment of Justices Padilla, Tuason, Montemayor, Reyes, Bautista and Jugo. In 1953, the Congress passed another bill similar to the previous bill vetoed by the President, with the important difference that in the later bill the provisions in the first bill regarding (1) the supervision and regulation by the Supreme Court of the study of law, (2) the inclusion of Social Legislation and Taxation as new bar subjects, (3) the publication of the bar examiners before the holding of the examination, and (4) the equal division among the examiners of all the admission fees paid by bar applicants, were eliminated. This second bill was allowed to become a law, Republic Act No. 972, by the President by merely not signing it within the required period; and in doing so the President gave due respect to the will of the Congress which, speaking for the people, chose to repass the bill first vetoed by him. Under Republic Act No. 972, any bar candidates who obtained a general average of 70 per cent in any examinations after July 4, 1946 up to August 1951; 71 per cent in the 1952 bar examinations; 72 per cent in 1953 bar examinations; 73 per cent in the 1954 bar examinations; and 74 per cent in the 1955 bar examinations, without obtaining a grade below

PARAS, C.J., dissenting: Under section 145 of Rule of Court No. 127, in order that a bar candidate "may be deemed to have passed his examinations successfully, he must have obtained a general average of 75 per cent in all subjects, without falling below 50 per cent in any subject.' This passing mark has always been adhered to, with certain exception presently to be specified. With reference to the bar examinations given in August, 1946, the original list of successful candidates included only those who obtained a general average of 75 per cent or more. Upon motion for reconsideration, however, 12 candidates with general averages ranging from 72 to 73 per cent were raised to 75 per cent by resolution of December 18, 1946. In the examinations of November, 1946 the list first released containing the names of successful candidates covered only those who obtained a general average of 75 per cent or more; but, upon motion for reconsideration, 19 candidates with a general average of 72 per cent were raised to 75 per cent by resolution of March 31, 1947. This would indicate that in the original list of successful candidates those having a

50 per cent in any subject, shall be allowed to pass. Said Act also provides that any bar candidate who obtained a grade of 75 per cent in any subject in any examination after July 4, 1946, shall be deemed to have passed in such subject or subjects and such grade or grades shall be included in computing the passing in any subsequent examinations. Numerous candidates who had taken the bar examinations previous to the approval of Republic Act No. 972 and failed to obtain the necessary passing average, filed with this Court mass or separate petitions, praying that they be admitted to the practice of law under and by virtue of said Act, upon the allegation that they have obtained the general averages prescribed therein. In virtue of the resolution of July 6, 1953, this Court held on July 11, 1953 a hearing on said petitions, and members of the bar, especially authorized representatives of bar associations, were invited to argue or submit memoranda as amici curiae, the reason alleged for said hearing being that some doubt had "been expressed on the constitutionality of Republic Act No. 972 in so far as it affects past bar examinations and the matter" involved "a new question of public interest." All discussions in support of the proposition that the power to regulate the admission to the practice of law is inherently judicial, are immaterial, because the subject is now governed by the Constitution which in Article VII, section 13, provides as follows: The Supreme Court shall have the power to promulgate rules concerning pleading, practice, and procedure in all courts, and the admission to the practice of law. Said rules shall be uniform for all courts of the same grade and shall not diminish, increase or modify substantive right. The existing laws on pleading, practice, and procedure are hereby repealed as statutes and are declared Rules of Court, subject to the power of the Supreme Court to alter and modify the same. The Congress shall have the power to repeal, alter, or supplement the rules concerning pleading, practice, and procedure, and the admission to the practice of law in the Philippines. Under this constitutional provision, while the Supreme Court has the power to promulgate rules concerning the admission to the practice of law, the Congress has the power to repeal, alter or supplement said rules. Little intelligence is necessary to see that the power of the Supreme Court and the Congress to regulate the admission to the practice of law is concurrent.

The opponents of Republic Act No. 972 argue that this Act, in so far as it covers bar examinations held prior to its approval, is unconstitutional, because it sets aside the final resolutions of the Supreme Court refusing to admit to the practice of law the various petitioners, thereby resulting in a legislative encroachment upon the judicial power. In my opinion this view is erroneous. In the first place, resolutions on the rejection of bar candidates do not have the finality of decisions in justiciable cases where the Rules of Court expressly fix certain periods after which they become executory and unalterable. Resolutions on bar matters, specially on motions for reconsiderations filed by flunkers in any give year, are subject to revision by this Court at any time, regardless of the period within which the motion were filed, and this has been the practice heretofore. The obvious reason is that bar examinations and admission to the practice of law may be deemed as a judicial function only because said matters happen to be entrusted, under the Constitution and our Rules of Court, to the Supreme Court. There is no judicial function involved, in the subject and constitutional sense of the word, because bar examinations and the admission to the practice of law, unlike justiciable cases, do not affect opposing litigants. It is no more than the function of other examining boards. In the second place, retroactive laws are not prohibited by the Constitution, except only when they would be ex post facto, would impair obligations and contracts or vested rights or would deny due process and equal protection of the law. Republic Act No. 972 certainly is not an ex post facto enactment, does not impair any obligation and contract or vested rights, and denies to no one the right to due process and equal protection of the law. On the other hand, it is a mere curative statute intended to correct certain obvious inequalities arising from the adoption by this Court of different passing general averages in certain years. Neither can it be said that bar candidates prior to July 4, 1946, are being discriminated against, because we no longer have any record of those who might have failed before the war, apart from the circumstance that 75 per cent had always been the passing mark during said period. It may also be that there are no pre-war bar candidates similarly situated as those benefited by Republic Act No. 972. At any rate, in the matter of classification, the reasonableness must be determined by the legislative body. It is proper to recall that the Congress held public hearings, and we can fairly suppose that the classification adopted in the Act reflects good legislative judgment derived from the facts and circumstances then brought out. As regards the alleged interference in or encroachment upon the judgment of this Court by the Legislative Department, it is sufficient to state that, if there is any interference at all, it is one expressly sanctioned

by the Constitution. Besides, interference in judicial adjudication prohibited by the Constitution is essentially aimed at protecting rights of litigants that have already been vested or acquired in virtue of decisions of courts, not merely for the empty purpose of creating appearances of separation and equality among the three branches of the Government. Republic Act No. 972 has not produced a case involving two parties and decided by the Court in favor of one and against the other. Needless to say, the statute will not affect the previous resolutions passing bar candidates who had obtained the general average prescribed by section 14 of Rule 127. A law would be objectionable and unconstitutional if, for instance, it would provide that those who have been admitted to the bar after July 4, 1946, whose general average is below 80 per cent, will not be allowed to practice law, because said statute would then destroy a right already acquired under previous resolutions of this Court, namely, the bar admission of those whose general averages were from 75 to 79 per cent. Without fear of contradiction, I think the Supreme Court, in the exercise of its rule-making power conferred by the Constitution, may pass a resolution amending section 14 of Rule 127 by reducing the passing average to 70 per cent, effective several years before the date of the resolution. Indeed, when this Court on July 15, 1948 allowed to pass all candidates who obtained a general average of 69 per cent or more and on April 28, 1949 those who obtained a general average of 70 per cent or more, irrespective of whether they filed petitions for reconsideration, it in effect amended section 14 of Rule 127 retroactively, because during the examinations held in August 1947 and August 1948, said section (fixing the general average at 75 per cent) was supposed to be in force. In stands to reason, if we are to admit that the Supreme Court and the Congress have concurrent power to regulate the admission to the practice of law, that the latter may validly pass a retroactive rule fixing the passing general average. Republic Act No. 972 cannot be assailed on the ground that it is unreasonable, arbitrary or capricious, since this Court had already adopted as passing averages 69 per cent for the 1947 bar examinations and 70 per cent for the 1948 examinations. Anyway, we should not inquire into the wisdom of the law, since this is a matter that is addressed to the judgment of the legislators. This Court in many instances had doubted the propriety of legislative enactments, and yet it has consistently refrained from nullifying them solely on that ground. To say that the admission of the bar candidates benefited under Republic Act 972 is against public interest, is to assume that the matter of whether

said Act is beneficial or harmful to the general public was not considered by the Congress. As already stated, the Congress held public hearings, and we are bound to assume that the legislators, loyal, as do the members of this Court, to their oath of office, had taken all the circumstances into account before passing the Act. On the question of public interest I may observe that the Congress, representing the people who elected them, should be more qualified to make an appraisal. I am inclined to accept Republic Act No. 972 as an expression of the will of the people through their duly elected representatives. I would, however, not go to the extent of admitting that the Congress, in the exercise of its concurrent power to repeal, alter, or supplement the Rules of Court regarding the admission to the practice of law, may act in an arbitrary or capricious manner, in the same way that this Court may not do so. We are thus left in the situation, incidental to a democracy, where we can and should only hope that the right men are put in the right places in our Government. Wherefore, I hold that Republic Act No. 972 is constitutional and should therefore be given effect in its entirety.

Separate Opinions LABRADOR, J., concurring and dissenting: The right to admit members to the Bar is, and has always been, the exclusive privilege of this Court, because lawyers are members of the Court and only this Court should be allowed to determine admission thereto in the interest of the principle of the separation of powers. The power to admit is judicial in the sense that discretion is used in is exercise. This power should be distinguished from the power to promulgate rules which regulate admission. It is only this power (to promulgate amendments to the rules) that is given in the Constitution to the Congress, not the exercise of the discretion to admit or not to admit. Thus the rules on the holding of examination, the qualifications of applicants, the passing grades, etc. are within the scope of the legislative power. But the power to determine when a candidate has made or has not made the required grade is judicial, and lies completely with this Court.

I hold that the act under consideration is an exercise of the judicial function, and lies beyond the scope of the congressional prerogative of amending the rules. To say that candidates who obtain a general average of 72 per cent in 1953, 73 per cent in 1954, and 74 per cent in 1955 should be considered as having passed the examination, is to mean exercise of the privilege and discretion judged in this Court. It is a mandate to the tribunal to pass candidates for different years with grades lower than the passing mark. No reasoning is necessary to show that it is an arrogation of the Court's judicial authority and discretion. It is furthermore objectionable as discriminatory. Why should those taking the examinations in 1953, 1954 and 1955 be allowed to have the privilege of a lower passing grade, while those taking earlier or later are not? I vote that the act in toto be declared unconstitutional, because it is not embraced within the rule-making power of Congress, because it is an undue interference with the power of this Court to admit members thereof, and because it is discriminatory.

general average of 69 per cent were allowed to pass by resolution of July 15, 1948. With respect to the bar examinations held in August, 1948, in addition to the original list of successful bar candidates, all those who obtained a general average of 70 per cent or more, irrespective of the grades in any one subject and irrespective of whether they filed petitions for reconsideration, were allowed to pass by resolution of April 28, 1949. Thus, for the year 1947 the Court in effect made 69 per cent as the passing average, and for the year 1948, 70 per cent; and this amounted, without being noticed perhaps, to an amendment of section 14 of Rule 127. Numerous flunkers in the bar examinations held subsequent to 1948, whose general averages mostly ranged from 69 to 73 per cent, filed motions for reconsideration invoking the precedents set by this Court in 1947 and 1948, but said motions were uniformly denied. In the year 1951, the Congress, after public hearings where law deans and professors, practising attorneys, presidents of bar associations, and law graduates appeared and argued lengthily pro or con, approved a bill providing, among others, for the reduction of the passing general average from 75 per cent to 70 per cent, retroactive to any bar examination held after July 4, 1946. This bill was vetoed by the President mainly in view of an unfavorable comment of Justices Padilla, Tuason, Montemayor, Reyes, Bautista and Jugo. In 1953, the Congress passed another bill similar to the previous bill vetoed by the President, with the important difference that in the later bill the provisions in the first bill regarding (1) the supervision and regulation by the Supreme Court of the study of law, (2) the inclusion of Social Legislation and Taxation as new bar subjects, (3) the publication of the bar examiners before the holding of the examination, and (4) the equal division among the examiners of all the admission fees paid by bar applicants, were eliminated. This second bill was allowed to become a law, Republic Act No. 972, by the President by merely not signing it within the required period; and in doing so the President gave due respect to the will of the Congress which, speaking for the people, chose to repass the bill first vetoed by him. Under Republic Act No. 972, any bar candidates who obtained a general average of 70 per cent in any examinations after July 4, 1946 up to August 1951; 71 per cent in the 1952 bar examinations; 72 per cent in 1953 bar examinations; 73 per cent in the 1954 bar examinations; and 74 per cent in the 1955 bar examinations, without obtaining a grade below 50 per cent in any subject, shall be allowed to pass. Said Act also provides that any bar candidate who obtained a grade of 75 per cent in any subject in any examination after July 4, 1946, shall be deemed to

PARAS, C.J., dissenting: Under section 145 of Rule of Court No. 127, in order that a bar candidate "may be deemed to have passed his examinations successfully, he must have obtained a general average of 75 per cent in all subjects, without falling below 50 per cent in any subject.' This passing mark has always been adhered to, with certain exception presently to be specified. With reference to the bar examinations given in August, 1946, the original list of successful candidates included only those who obtained a general average of 75 per cent or more. Upon motion for reconsideration, however, 12 candidates with general averages ranging from 72 to 73 per cent were raised to 75 per cent by resolution of December 18, 1946. In the examinations of November, 1946 the list first released containing the names of successful candidates covered only those who obtained a general average of 75 per cent or more; but, upon motion for reconsideration, 19 candidates with a general average of 72 per cent were raised to 75 per cent by resolution of March 31, 1947. This would indicate that in the original list of successful candidates those having a general average of 73 per cent or more but below 75 per cent were included. After the original list of 1947 successful bar candidates had been released, and on motion for reconsideration, all candidates with a

have passed in such subject or subjects and such grade or grades shall be included in computing the passing in any subsequent examinations. Numerous candidates who had taken the bar examinations previous to the approval of Republic Act No. 972 and failed to obtain the necessary passing average, filed with this Court mass or separate petitions, praying that they be admitted to the practice of law under and by virtue of said Act, upon the allegation that they have obtained the general averages prescribed therein. In virtue of the resolution of July 6, 1953, this Court held on July 11, 1953 a hearing on said petitions, and members of the bar, especially authorized representatives of bar associations, were invited to argue or submit memoranda as amici curiae, the reason alleged for said hearing being that some doubt had "been expressed on the constitutionality of Republic Act No. 972 in so far as it affects past bar examinations and the matter" involved "a new question of public interest." All discussions in support of the proposition that the power to regulate the admission to the practice of law is inherently judicial, are immaterial, because the subject is now governed by the Constitution which in Article VII, section 13, provides as follows: The Supreme Court shall have the power to promulgate rules concerning pleading, practice, and procedure in all courts, and the admission to the practice of law. Said rules shall be uniform for all courts of the same grade and shall not diminish, increase or modify substantive right. The existing laws on pleading, practice, and procedure are hereby repealed as statutes and are declared Rules of Court, subject to the power of the Supreme Court to alter and modify the same. The Congress shall have the power to repeal, alter, or supplement the rules concerning pleading, practice, and procedure, and the admission to the practice of law in the Philippines. Under this constitutional provision, while the Supreme Court has the power to promulgate rules concerning the admission to the practice of law, the Congress has the power to repeal, alter or supplement said rules. Little intelligence is necessary to see that the power of the Supreme Court and the Congress to regulate the admission to the practice of law is concurrent. The opponents of Republic Act No. 972 argue that this Act, in so far as it covers bar examinations held prior to its approval, is unconstitutional, because it sets aside the final resolutions of the Supreme Court refusing

to admit to the practice of law the various petitioners, thereby resulting in a legislative encroachment upon the judicial power. In my opinion this view is erroneous. In the first place, resolutions on the rejection of bar candidates do not have the finality of decisions in justiciable cases where the Rules of Court expressly fix certain periods after which they become executory and unalterable. Resolutions on bar matters, specially on motions for reconsiderations filed by flunkers in any give year, are subject to revision by this Court at any time, regardless of the period within which the motion were filed, and this has been the practice heretofore. The obvious reason is that bar examinations and admission to the practice of law may be deemed as a judicial function only because said matters happen to be entrusted, under the Constitution and our Rules of Court, to the Supreme Court. There is no judicial function involved, in the subject and constitutional sense of the word, because bar examinations and the admission to the practice of law, unlike justiciable cases, do not affect opposing litigants. It is no more than the function of other examining boards. In the second place, retroactive laws are not prohibited by the Constitution, except only when they would be ex post facto, would impair obligations and contracts or vested rights or would deny due process and equal protection of the law. Republic Act No. 972 certainly is not an ex post facto enactment, does not impair any obligation and contract or vested rights, and denies to no one the right to due process and equal protection of the law. On the other hand, it is a mere curative statute intended to correct certain obvious inequalities arising from the adoption by this Court of different passing general averages in certain years. Neither can it be said that bar candidates prior to July 4, 1946, are being discriminated against, because we no longer have any record of those who might have failed before the war, apart from the circumstance that 75 per cent had always been the passing mark during said period. It may also be that there are no pre-war bar candidates similarly situated as those benefited by Republic Act No. 972. At any rate, in the matter of classification, the reasonableness must be determined by the legislative body. It is proper to recall that the Congress held public hearings, and we can fairly suppose that the classification adopted in the Act reflects good legislative judgment derived from the facts and circumstances then brought out. As regards the alleged interference in or encroachment upon the judgment of this Court by the Legislative Department, it is sufficient to state that, if there is any interference at all, it is one expressly sanctioned by the Constitution. Besides, interference in judicial adjudication prohibited by the Constitution is essentially aimed at protecting rights of litigants that have already been vested or acquired in virtue of decisions

of courts, not merely for the empty purpose of creating appearances of separation and equality among the three branches of the Government. Republic Act No. 972 has not produced a case involving two parties and decided by the Court in favor of one and against the other. Needless to say, the statute will not affect the previous resolutions passing bar candidates who had obtained the general average prescribed by section 14 of Rule 127. A law would be objectionable and unconstitutional if, for instance, it would provide that those who have been admitted to the bar after July 4, 1946, whose general average is below 80 per cent, will not be allowed to practice law, because said statute would then destroy a right already acquired under previous resolutions of this Court, namely, the bar admission of those whose general averages were from 75 to 79 per cent. Without fear of contradiction, I think the Supreme Court, in the exercise of its rule-making power conferred by the Constitution, may pass a resolution amending section 14 of Rule 127 by reducing the passing average to 70 per cent, effective several years before the date of the resolution. Indeed, when this Court on July 15, 1948 allowed to pass all candidates who obtained a general average of 69 per cent or more and on April 28, 1949 those who obtained a general average of 70 per cent or more, irrespective of whether they filed petitions for reconsideration, it in effect amended section 14 of Rule 127 retroactively, because during the examinations held in August 1947 and August 1948, said section (fixing the general average at 75 per cent) was supposed to be in force. In stands to reason, if we are to admit that the Supreme Court and the Congress have concurrent power to regulate the admission to the practice of law, that the latter may validly pass a retroactive rule fixing the passing general average. Republic Act No. 972 cannot be assailed on the ground that it is unreasonable, arbitrary or capricious, since this Court had already adopted as passing averages 69 per cent for the 1947 bar examinations and 70 per cent for the 1948 examinations. Anyway, we should not inquire into the wisdom of the law, since this is a matter that is addressed to the judgment of the legislators. This Court in many instances had doubted the propriety of legislative enactments, and yet it has consistently refrained from nullifying them solely on that ground. To say that the admission of the bar candidates benefited under Republic Act 972 is against public interest, is to assume that the matter of whether said Act is beneficial or harmful to the general public was not considered by the Congress. As already stated, the Congress held public hearings, and we are bound to assume that the legislators, loyal, as do the

members of this Court, to their oath of office, had taken all the circumstances into account before passing the Act. On the question of public interest I may observe that the Congress, representing the people who elected them, should be more qualified to make an appraisal. I am inclined to accept Republic Act No. 972 as an expression of the will of the people through their duly elected representatives. I would, however, not go to the extent of admitting that the Congress, in the exercise of its concurrent power to repeal, alter, or supplement the Rules of Court regarding the admission to the practice of law, may act in an arbitrary or capricious manner, in the same way that this Court may not do so. We are thus left in the situation, incidental to a democracy, where we can and should only hope that the right men are put in the right places in our Government. Wherefore, I hold that Republic Act No. 972 is constitutional and should therefore be given effect in its entirety. Footnotes
1

Designed as Chairman of the Committee of Bar Examiners vice Mr. Justice Roman Ozaeta, resigned.
2

In 1946 and 1947, the members of the Supreme Court were Hon. Manuel V. Moran, Chief Justice, Ho. Ricardo Paras, Hon. Felicisimo Feria, Hon. Guillermo F. Pablo, Hon. Gregorio Perfecto, Ho. Carlos Hilado, Hon. Cesar Bengzon, Hon. Manuel C. Briones, Hon. Jose Hontiveros, Hon. Sabino Padilla, and Hon. Pedro Tuason, Associate Justices. In 1948, Justices Marcelino R. Montemayor and Alex. Reyes took the place of Justice Hilado, resigned, and Hontiveros, retired. Justice Roman Ozaeta was returned to the Court and Justice Sabino Padilla was appointed Secretary of Justice. In June, 1949, Justice Padilla was returned to the Tribunal, as Justice Briones resigned. In October, 1950, Justices Fernando Jugo and Felix Bautista Angelo were appointed to t he Court, as Justice Perfecto Jugo and Felix Bautista Angelo were appointed to the Court, as Justice Perfecto had died, and Justice Ozaeta had resigned. In 1951, Chief Justice Manuel V. Moran resigned and Justice Ricardo Paras was appointed Chief Justice. In 1953, Justice Felicisimo R. Feria retired.

FREDESVINDO S. ALVERO, petitioner, vs. M.L. DE LA ROSA, Judge of First Instance of Manila, JOSE R. VICTORIANO, and MARGARITA VILLARICA,respondents. Revilla and Palma for petitioner. Francisco Claravall for respondents. DE JOYA, J.: This is an original petition for certiorari filed in this court. The record shows that, on June 25, 1945, respondent Jose R. Victoriano had filed a complaint, in the Court of First Instance of the City of Manila, against petitioner Fredesvindo S. Alvero and one Margarita Villarica, alleging two causes of action, to wit, (1) to declare in force the contract of sale, made on October 1, 1940, between said Jose R. Victoriano and Margarita Villarica, of two (2) parcels of land in the Manotoc subdivision, Balintawak, in the barrio of Calaanan, municipality of Caloocan, Province of Rizal, with a combined area of 480 square meters, which land was subsequently sold by said Villarica, in favor of petitioner Fredesvindo S. Alvero, on December 31, 1944, for the sum of P100,000 in Japanese military notes; and (2) to declare said subsequent sale null and void. On July 7, 1945, Margarita Villarica filed an answer to said complaint, expressly admitting having sold said land to Fresdesvindo S. Alvero, for P100,000, in December, 1944, due to the imperative necessity of raising funds with which to provide for herself and family, and that she did not remember the previous sale; at the same time, offering to repurchase said land from Fredesvindo S. Alvero in the sum of P5,000, but that the latter refused to accept the offer. On July 13, 1945, Fredesvindo S. Alvero, in answering said complaint, denied the allegations made therein, and claimed exclusive ownership of the land in question, and at the same time set up a counterclaim and crossclaim in his answer, demanding from Jose R. Victoriano a P200monthly rent on said property, beginning from February, 1945, plus P2,000 as damages. On July 21, 1945, Jose R. Victoriano filed an answer to said counterclaim, denying Fredesvindo S. Alvero's alleged ownership over said land, and the other allegations contained in Alvero's answer.

After the trial of the case before the Hon. Mariano L. de la Rosa, Judge of the Court of First Instance of the City of Manila, one of the respondents in this case, on November 16, 1945, said respondent judge rendered his decision, in which it was declared that the two (2) parcels of land in question, with a combined area of 480 square meters had been sold by Margarita Villarica to Jose R. Victoriano, since October 1, 1940, for the sum of P6,000, on the condition that the purchaser should make a down payment of P1,700, and a monthly payment of P76.86 in 120 equal monthly installments; that Jose R. Victoriano continued making said monthly payments until December, 1941, but that owing to the war-time conditions then existing, Margarita Villarica agreed verbally to suspend such payments until the restoration of peace; that immediately after said sale of said land to him, Jose R. Victoriano took possession thereof and made improvements thereon to the amount of P800, and continued occupying said property until December, 1944, when he abandoned the same to go to evacuation places, but returned thereto in February, 1945; that Margarita Villarica, having forgotten the sale of said land to Jose R. Victoriano, sold the same for P100,000 in Japanese military notes, on December 31, 1944, to Fredesvindo S. Alvero, but afterwards offered to repurchase said property from him, for the sum of P8,000 in genuine Philippine currency, after liberation; that Fredesvindo S. Alvero presented the deed of sale, executed in his favor, to the Register of Deeds of the City of Manila, on January 3, 1945, and took possession of said property in December, 1944, but afterwards found Jose R. Victoriano in the premises in February, 1945; that in the contract of sale executed by Margarita Villarica, in favor of Jose R. Victoriano, it was agreed that, upon failure of the purchaser to make payments of three (3) successive mothly installments, the vendor would be free to sell the property again, forfeiting the payments made, except in the case of force majeure; that there was really a verbal agreement between Margarita Villarica and Jose Victoriano, made in February, 1942, for the suspension of the payment of the monthly installments until the restoration of peace; and that although Jose R. Victoriano had presented the deed of sale, executed in his favor, to the Register of Deeds, in Pasig, Rizal, like Fredesvindo S. Alvero, he had also failed to secure the transfer of title to his name. And considering that Jose R. Victoriano's document was older than that of Fredesvindo S. Alvero, and that he had taken possession of said property, since October 1, 1940, the respondent judge rendered his decision in favor of Jose R. Victoriano, adjudging to him the title over the property in question, including all the improvements existing thereon, and dismissed the counterclaim. On November 28, 1945, Fredesvindo S. Alvero was notified of said decision; and on December 27, 1945, he filed a petition for

reconsideration and new trial, which was denied on January 3, 1946; and of said order he was notified on January 7, 1946. On January 8, 1946, Fredesvindo S. Alvero filed his notice of appeal and record on appeal simultaneously in the lower court, without filing the P60appeal bond. On January 14, 1946, Jose R. Victoriano filed a petition to dismiss the appeal, and at the same time, asked for the execution of the judgment. On January 15, 1946, Fredesvindo S. Alvero filed an opposition to said motion to dismiss, alleging that on the very same day, January 15, 1946, said appeal bond for P60 had been actually filed, and allege as an excuse, for not filing the said appeal bond, in due time, the illness of his lawyer's wife, who died on January 10, 1946, and buried the following day. On January 17, 1946, the respondent judge, Hon. Mariano L. de la Rosa, ordered the dismissal of the appeal, declaring that, although the notice of appeal and record on appeal had been filed in due time, the P60-appeal bond was filed too late. On January 23, 1946, Fredesvindo S. Alvero filed a petition for the reconsideration of the said order dated January 17, 1946, dismissing his appeal; and said petition for reconsideration was denied on January 29, 1946. Hence, this petition for certiorari. On February 11, 1946, the respondents filed their answer to the petition for certiorari, alleging (1) that said petition is defective in form as well as in substance; (2) that there has been no excusable negligence, on the part of the petitioner, or grave abuse of discretion on the part of the respondent judge, in the instant case. As already stated, the decision rendered by the respondent judge, Hon. Mariano L. de la Rosa, was dated November 16, 1945, of which counsel for Fredesvindo S. Alvero was notified on November 28, 1945; that his motion for reconsideration and new trial was filed on December 27, 1945, and denied on January 3, 1946, and that said counsel for Alvero was notified of said order on January 7, 1946; and that he filed his notice of appeal and record on appeal the following day, to wit, January 8, 1946, and that the P60-appeal bond was filed only on January 15, 1946.

According to the computation erroneously made by the court, the last day for filing and perfecting the appeal, in this case, was January 8, 1946, or which date, Fredesvindo S. Alvero should have filed his (1) notice of appeal, (2) record on appeal, and (3) appeal bond. But the P60-appeal bond was filed only on January 15, 1946. Failure to perfect the appeal, within the time prescribed by the rules of court, will cause the judgment to become final, and the certification of the record on appeal thereafter, cannot restore the jurisdiction which has been lost. (Roman Catholic Bishop of Tuguegarao vs. Director of Lands, 34 Phil., 623; Estate of Cordoba and Zarate vs.Alabado, 34 Phil., 920; and Bermudez vs. Director of Lands, 36 Phil., 774.) The period within which the record on appeal and appeal bond should be perfected and filed may, however, be extended by order of the court, upon application made, prior to the expiration of the original period. (Layda vs.Legaspi, 39 Phil., 83.) Rules of courts, promulgated by authority of law, have the force and effect of law; and rules of court prescribing the time within which certain acts must be done, or certain proceedings taken, are considered absolutely indispensable to the prevention of needless delays and to the orderly and speedy discharge of judicial business. (Shioji vs. Harvey, 43 Phil., 333.) Strict compliance with the rules of court has been held mandatory and imperative, so that failure to pay the docket fee in the Supreme Court, within the period fixed for that purpose, will cause the dismissal of the appeal. (Salaveriavs. Albindo, 39Phil., 922.) In the same manner, on failure of the appellant in a civil case to serve his brief, within the time prescribed by said rules, on motion of the appellee and notice to the appellant, or on its own motion, the court may dismiss the appeal. (Shioji vs. Harvey, 43 Phil., 333.) Counsel for the petitioner Fredesvindo Alvero alleges as an excuse, for his failure to perfect and file his appeal, in due time, the illness of his wife, which ended in her death on January 10, 1946, and by which he was greatly affected. How little, indeed, does one realize that in life he lives in the midst of death; and that every that passes in a step nearer towards eternity. Yet, notwithstanding the inexorable laws of human destiny, every mortal fears death, and such fear is worse than death itself. That is perhaps the

reason why those feeling its approach, in their last moments, want to be surrounded by the ones dearest to their heart, to hear from them words of tenderness and eternal truth, and thus receive as balm their love and the cheering influence of the traditional faith, and the consolation of religious hope. The virtuous and loving wife is the peculiar gift of heaven, and Mother is the name for God in the innocent lips and hearts of adoring children. "She looketh well to the ways of her household, and eateth not the bread of idleness." "And her daughters arise up and call her blessed." And when she dies in the bosom of God, her children find solace in the contemplation of her eternal bliss, as mirrored in her tranquil beauty. It is not, therefore, difficult to understand the state of mind of the attorney, and his intense devotion and ardent affection towards his dying wife. Unfortunately, counsel for petitioner has created a difficult situation. In his motion for reconsideration and new trial, dated December 27, 1945, he did not point out specifically the findings or conclusions in the judgment, are not supported by the evidence or which are contrary to law, making express reference to the pertinent evidence or legal provisions, as expressly required by Rule 37, section 2, paragraph (c) of the Rules of Court. Motions of that kind have been considered as motions pro forma intended merely to delay the proceeding, and, as such, they cannot and will not interrupt or suspend the period of time for the perfection of the appeal. (Valdez vs. Jugo, 74 Phil., 49, and Reyes vs. Court of Appeals and Bautista, 74 Phil., 235.) Hence, the period for perfecting herein petitioner's appeal commenced from November 28, 1945, when he was notified of the judgment rendered in the case, and expired on December 28, 1945; and, therefore, his notice of appeal and record on appeal filed on January 8, 1946, were filed out of time, and much more so his appeal bond, which was only filed on January 15, 1946. It is futile to speak of hospitals, doctors and nurses to minister alone to the needs of the sick and the dying, who are dearest to us, for our reasoning powers are of little avail when sorrow or despair rages within. But human laws are inflexible and no personal consideration should stand in the way of performing a legal duty. The attorney for petitioner Fredesvindo S. Alvero could have asked for an extension of time, within which to file and perfect his appeal, in the court

below; but he had failed to do so, and he must bear the consequences of his act. A strict observance of the rules of court, which have been considered indispensable to the prevention of needless delays and to the orderly and speedy dispatch of judicial business, is an imperative necessity. It may not be amiss to state in this connection that no irreparable damage has been caused to the petitioner Fredesvindo S. Alvero, as Margarita Villarica, the vendor to the two, of the land in question, has shown readiness to repair the damage done. No showing having been made that there had been merely excusable negligece, on the part of the attorney for petitioner Fredesvindo S. Alvero, and that there had been gave abuse of sound judicial discretion, on the part of the respondent judge, the petition for certiorari filed in this case, is, therefore, hereby dismissed, without costs. So ordered. Moran, C.J., Ozaeta, Paras, Jaranilla, Feria, Pablo, Perfecto, Hilado, Bengzon, and Briones JJ., concur.

LIBERTAD ALTAVAS CONLU, petitioner, vs. THE HONORABLE COURT OF APPEALS, ET AL., respondents. Jose Y. Torres for petitioner. Josefino Tirol, Orlando Poblete and Venicio Escolin for respondents.

GUTIERREZ DAVID, J.: Petition to review a resolution of the Court of Appeals. The facts involved are not controverted. On October 3, 1957, the Court of First Instance of Capiz handed down a decision in Cadastral Case No. 5, G.L.R.O. Record No. 337, covering a lot of the Capiz Cadastre. The herein petitioner against whom said decision was rendered received a copy thereof on October 11, 1957. Twenty-five (25) days thereafter, or on November 5 of the same year, petitioner filed a motion for reconsideration and new trial, praying that the decision be set aside upon the grounds that it is contrary to law and is not supported by sufficient evidence. The said motion was denied by the trial court in an order dated January 11, 1958, notice of which was received by petitioner on January 15. On January 13, she filed a "Petition Ex Parte for Extension of Time to Perfect The Appeal." The following day, the trial court granted thirty (30) days from that day, January 14, within which petitioner may submit her record on appeal. On February 1, 1958, twelve (12) days after January 20 when the original reglementary period to appeal had expired, petitioner filed notice of appeal and appeal bond, and on February 8, that is, five days before the expiration of the thirty days extension, petitioner filed against the approval of the record on appeal, the trial court, on March 1, 1958, dismissed the appeal on the ground that the appeal bond and the notice of appeal were filed out of time. Motion to reconsider that order of dismissal had been denied. Whereupon, the petitioner filed with the Court of Appeals an action for mandamus praying that the Court of First Instance be ordered to approve, certify and transmit to it the record on appeal. Failing to obtain such relief from the appeals court, the petitioner has brought the case to us for review. After going over the record, we are persuaded that the petitioner has not made out a good case for the issuance of a writ of mandamus. There is no question that the petitioner was given an additional thirty (30) days within which to submit her record on appeal, for on January 14, 1959, the Court of First Instance issued the following order:. As prayed for in the ex parte motion of Attorney Jose Y. Torres, he is hereby given thirty (30) days from today within which to submit his record on appeal. (Emphasis supplied)

Petitioner contends that the order above-quoted extended also the filing of the notice of appeal and the appeal bond. Petitioner's main argument is that her petition dated January 13, 1958 prayed for an extension of time not merely to submit the record on appeal but to perfect her appeal, which includes the filing of the notice of appeal and appeal bond. The contention is devoid of merit. The language used in the order is plain and unequivocal. It cannot be construed in the manner suggested by petitioner. If the trial court really intended to extend also the period for the filing of the notice of appeal and appeal bond, it could have easily stated so in its order, or simply, the order would have granted "an additional 30 days to perfect the appeal." In fact, the said court clearly explained the meaning of its order of extension as being limited to the filing of the record on appeal when on March 1, 1958, it issued an order dismissing the appeal for the untimely filing of the notice of appeal and appeal bond.
Presumably, the reason of the trial court in granting an extension only for the filing of the record on appeal is that the petition for extension was predicated solely on the ground "that the record of the case is very voluminous and the Record on Appeal will probably consist of 50 typewritten pages more or less so that it would need much time to prepare, finish and file the Record on Appeal and furthermore due to pressure of work her counsel cannot attend exclusively in the preparation of said Record on Appeal."

In the case of Silverio Salva vs. Hon. Perfecto R. Palacio, et al., 90 Phil.,
731, 52 Off. Gaz., p. 3089, this Court has held that an extension of time granted to amend a record on appeal does not carry with it an extension of the reglementary period for the filing of the appeal bond. Similarly, in this case, we hold that the extension of time granted for the filing of the record on appeal does not also carry with it an extension for the filing of the notice of appeal and appeal bond. Rules of Courts, promulgated by authority of law, have the force and effect of law; and rules of court prescribing the time within which certain acts must be done, or certain proceedings taken, are considered absolutely indispensable to the prevention of needless delays and to the orderly and speedy discharge of judicial business (Shioji vs. Harvey, 43 Phil., 333; Alvero vs. De la Rosa et al., 76 Phil., 428, 42 Off. Gaz., p. 316). Conformably with the foregoing, the resolution sought to be reviewed is hereby affirmed, at petitioner's costs. Paras, C.J., Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador, Concepcion, Endencia and Barrera, JJ.,concur.

ETHEL CASE and MINNA NANTZ, petitioners, vs. FERNANDO JUGO, Judge of First Instance of Manila, and FELIPE F. CRUZ, respondents.

Benedicto C. Balderrama for petitioners. Sarte and Garcia for respondents.

argument before this court that he was really present on the occasion and on the date above stated in the sheriff's office. We are inclined to believe, in the nature of things, that he at least learned of the filing of the counterbond by the defendant there and then. Section 5 and 6, Rule 62, of the Rules of Court, read as follows: SEC. 5. Return of property. If the defendant objects to the sufficiency of the plaintiffs bond, or of the surety or sureties thereon, he cannot require the return of the property as in this section provided; but if he does not so object, he may, at any time before the delivery of the property to the plaintiff, require the return thereof, by filing with the clerk or judge of the court a bond executed to the plaintiff, in double the value of the a bond executed to the plaintiff, in double the value of the property as stated in the plaintiff's affidavit, for the delivery of the property to the plaintiff, if such delivery be adjudged, and for the payment of such sum to him as may be recovered against the defendant, and by serving a copy of such bond on the plaintiff or his attorney. SEC. 6. Disposition of property by officer. If within five days after the taking of the property by the officer, the defendant does not object to the sufficiency of the bond, or of the surety or sureties thereon, or require the return of the property as provided in the last preceding section; or if the defendant so objects, and the plaintiffs first or new bond is approved; or if the defendant so requires, and his bond is objected to and found insufficient and he does not forthwith file an approved bond, the property shall be delivered to the plaintiff. If for any reason the property is not delivered to the plaintiff, the officer must return it to the defendant. According to these provisions, if the defendant in a case of replevin wants to have the property returned to him, he must put up a bond in double the amount of the chattel and furnish the plaintiff with a copy of the undertaking within five days from the date the sheriff took possession of the property. Both requirements, in our opinion, are mandatory. The furnishing of a copy of the counterbond has to be accomplished within the prescribed period if the plaintiff is to have an opportunity to contest the redelivery of the property sought by the defendant. However, there was substantial compliance with the last requirement. Since the sole purpose of furnishing a copy of the counterbond is to enable the plaintiff to see if the bond is in the

TUASON, J.: This is a petition for a writ of certiorari to set "aside the order issued by respondent judge denying the motion for delivery of the property to petitioners" and to direct "said judge to order the delivery of the property to the petitioners in accordance with Rule 62 of the New Rules of Court." It appears that the herein petitioners are plaintiffs in civil case No. 55 of the Court of First Instance of Manila, of a truck. On July 12, 1946, petitioners, as such plaintiffs, applied for a writ of seizure and filed a bond of P20,000 under the provisions of sections 5 and 6, Rule 62, of the Rules of Court. The order prayed for was issued by Judge Fernando Jugo and was carried out by the sheriff on July 14. On the 17th, the defendant, one of the respondents herein, through his attorney, filed an ex parte motion for the return of the truck and filed a counterbond of P20,000. Simultaneously, this attorney gave a copy of the counterbond to the sheriff to be served on the plaintiffs or their attorney. According to respondents' answer in the present proceeding, on the aforesaid date the deputy sheriff, Simeon Serdenia, prepared the necessary papers for the return of the property to Felipe F. Cruz. At the time, the petitioners' counsel, Attorney Benedicto C. Balderrama, happened to be in the sheriff's office and was informed by Serdenia of the filing of the counterbond and asked if he had any objection to its sufficiency, to which attorney Balderrama answered no, as the counterbond had been executed by a surety company. It is also alleged that Serdenia was not able to deliver a copy of the counterbond to Attorney Balderrama because the latter left the sheriff's office before the other necessary papers and the "diligencia" were completed. It is alleged that on the following day, July 18th, Serdenia fell ill with the result that copy of the counterbond was not furnished to the petitioners or their attorney until he recoverred from his illness a few days later. Attorney Balderrama then refused to receive the copy on the ground that the fivedays period had already elapsed. These allegations are denied by the petitioners. It was nevertheless admitted by Attorney Balderrama in the course of the

prescribed form and for the right amount and to resist the return of the property to the defendant if it is not, that opportunity was afforded was shown in the sheriff's office the defendants' counterbond, service of a copy thereof on him became a purposeless, unnecessary formality. There is no reason why the maxim, "Equity regards substance rather than form," should not hold good here. The defendant took adequate steps to comply with the abovequoted provisions of the Rules of Court. He or his attorney was not expected personally to serve a copy of the counterbond on the plaintiffs of their attorney. If he is not; if, in other words, service might be effected through others, no more suitable person could have been selected than the sheriff, the officer of the court whose chief function it is, among others, to serve pleadings and notices and who, above all had the property in litigation in custody. That the sheriff did not deliver the copy of the counterbond intended for the plaintiffs or their attorney through an unavoidable circumstance, or even through negligence, should not adversely affect the defendant under the circumstances of this case. If it be said that the fault of an agent is imputable to his principal, it should be remembered that this principle is applicable to cases where actual damage has been suffered, in which event the principal would have to bear the loss and other consequences; but it should not apply to cases where the fault consists of purely technical, harmless non-observance of a rule of practice or procedure which has not injured or misled any one or deprived the court of its jurisdiction. The circumstance that the plaintiffs' attorney from all appearances purposely avoided service of a copy of the defendant's counterbond by leaving the sheriff's office while the sheriff was preparing the papers which were to be handed to him, deserves special attention. This is the tenor of the allegations in paragraphs 6 and 7 of the respondents' answer which, unlike the allegations in paragraphs 4 and 5, have not been specifically
denied. Such conduct of the plaintiffs' attorney in itself affords sufficient ground for denying the petition. The plaintiffs have not come with very clean hands. They had a greater share of the blame than the defendant for the ommission on which they predicate their prayer for relief.lawphil.net The outstanding truth is that the defendant's counterbond was unassailable. The amount was ample and the surety thereon solvent. A loophole had to be sought somewhere else and the plaintiffs found an ally in the sheriff's illness. But we refuse to come to the said of an unmeritorous cause. Lapses in the literal observance of a rule of procedure will be overlooked when they do not involve public policy, when they arose from an honest mistake or unforeseen accident, when they have not prejudiced the adverse party and have not deprived the court of its

authority. Conceived in the best traditions of practical and moral justice and common sense, the Rules of Court frown upon hair-splitting technicalities that do not square with their liberal tendency and with the ends of justice (section 2, Rule 1), unless something in the nature of the factors just stated intervenes. This should be the case especially where, as here, the ommission or fault complained of could have been prevented by the petitioners if they had adopted the norm of practice expected of men of good intentions. The petition is denied with costs against the petitioners. Moran, C.J., Paras, Feria, Pablo, Perfecto, Bengzon, Briones and Padilla, JJ., concur.

Separate Opinions HILADO, J., concurring: I concur. In voting for the denial of the petition and in concurring in the foregoing decision, with particular reference to the facts on which its conclusion is based, I had to act in view of the fact that petitioner submitted this case for decision upon his petition, the answer of respondents, and his reply (he entitled it "motion") thereto, without either party offering any evidence in support of his respective allegations and without said petitioner giving the opposing party an opportunity to introduce evidence. Under the doctrine laid down in Evangelista vs. De la Rosa (76 Phil., 115),the herein petitioner must be taken to have submitted and rested his petition on the material and relevant allegations of the opposing party taken together with such of his own as are admitted therein. One of those allegations was that petitioner's attorney actually saw the counterbond filed by respondent Cruz in the sheriff's office on July 17, 1946, only three days after the sheriff took possession of the truck. With this explanation of my vote, I concur fully in the foregoing decision.

ADRIANO VALDEZ, plaintiff-appellee, vs. RODRIGO OCUMEN, ET AL., defendants-appellants. Dominador P. Nuesa and Teofilo A. Leonin for appellants. Antonio Rodriguez for appellee. BARRERA, J.:

This is an appeal taken by defendants from the order of the Court of First Instance of Isabela, dismissing the appeal they brought said court from the judgment of the Justice of the Peace Court of Roxas, Isabela, in Civil Case No. 224 (Forcible Entry), on the ground that they failed to perfect the same within the reglementary period provided in Section 2, Rule 40 of the Rules of Court. It appears that on March 9, 1957, the justice of the peace court, after due hearing rendered a decision in said case No. 224 ordering the defendants to restore to the plaintiff the possession of the questioned Lot No. 3005, to vacate its premises, and to pay the costs. Notice of said decision was sent to the counsel of them parties on April 30, 1957, defendants receiving their copy on May 24, 1957. On May 29, 1957, defendants filed with said court a notice of appeal and an appeal bond of P25.00 without, however, paying the appellate court docket fee of P16.00, as required under Section 2, Rule 40, of the Rules of Court. Acting upon said notice of appeal, the court, on the same date, issued an order forwarding the records of the case to the Court of First Instance of Isabela but stating therein "without however the docket fee for appeal". The Clerk of Court of First Instance received the records on July 25, 1957, at 3:30 P.M. Defendants paid the appellate court docket fee of P16.00 only on the following day, July 26, 1957. Resolving plaintiff's motion filed on July 29, 1957, to dismiss the appeal on the ground that it was not perfected within the reglementary period (15 days from notice of the judgment) provided in the Rules of Court, and defendant's opposition thereto, the Court of First Instance on August 28, 1957, issued an order dismissing the appeal, stating in part, as follows: The appellate court docket fee may be deposited either with the municipal treasurer or with the Clerk of Court of First Instance and a certificate of such deposit shall attached to the record by the justice of the peace. It should be deposited in full within the period of 15 days and this provision of the Rules of Court is mandatory and not directory. Therefore, if only 1/2 of the amount of the appellate court docket fee is deposited and the other half is rendered after the expiration of such period, no appeal is being perfected. (sic) (Lazaro vs. Endencia, 57 Phil., 552.) In the case at bar, the defendants-appellants did not deposit the appellate court docket fee of P16.00 with the Justice of the Peace Court of Roxas. And as the official receipt No. C-715000, will show, the appellate court docket fee of P16.00 was only paid by Atty. Dominador P. Nuesa on July 26, 1957 or 61 days after the

notice old appeal was filed. It is thus clear that the appeal has not been perfected in accordance with the provision of Section 2, Rule 40, for the Rules of Court. The contention of appellant's counsel to the effect that there was a substantial compliance with the law in that the docket fee was paid in the office of the Clerk of Court on July 26, 1957, is without merit because the Rules of Court provides in no uncertain terms that a certificate of payment of the peace court of origin in order that the appeal is deemed perfected as to warrant the justice of the peace of court to remand the case to the Court of First Instance. For all the foregoing considerations, the Court believes and so holds that the appeal has not been perfected in accordance with law and, therefore, this court has not required jurisdiction to try the case on the merits. Wherefore, the appeal should be, as it is hereby dismissed. Defendant's motion for reconsideration of said order on the ground of its alleged illegality having been denied, defendants instituted this present appeal. Section 2, Rule 40, of the Rules of Court, provides: SEC. 2. Appeal, how perfected.An appeal shall be perfected within fifteen days after notification to the of the party judgment complained of, (a) by filing with the justice of the peace or municipal judge a notice of appeal; (b) by delivering a certificate of the municipal treasure were showing that the appellant has deposited the appellate court docket fee or in charactered cities, a certificate of the clerk of such court showing receipt of the said fee; and (c) by giving a bond. Under this provision of the Rules of Court, in order to perfect an appeal from the judgment of the Justice of the Peace or Municipal Court, an appellant must, within 15 days from notice of the judgment, (1) file with the justice of the peace or municipal judge a notice of appeal, (2) deliver a certificate of the municipal treasurer or of the clerk of Court of First Instance in chartered cities, showing that he has deposited the appellate court docket fee, and (3) give a bond.

In the case under the consideration, while defendants did file with the Justice of Peace of Roxas, their fee of P16.00. It was only on July 26, 1957, that is, 61 days after filing their notice of appeal evidently, beyond the reglementary period of 15 days from notice of judgment as provided under the aforequoted section of the Rules of Court, that they elected the payment of the same. Their appeal, therefore, was never perfected in the Court of First Instance of Isabela, and the trial judge correctly and properly dismissed said appeal, as it acquired no jurisdiction thereon. Well-settled is the rule that the failure to perfect an appeal from a judgment of a justice of the peace court within the period allowed by law, bars the appeal (Gajiton vs. Meris, 54 Phil., 488; Policarpio vs. Borja, 16 Phil., 31; Lazaro vs. Endencia, supra; Bermudez vs. Baltazar, G.R. No. L10268, prom. April 30, 1957), and that if a party does not perfect his appeal within the time prescribed by law, the appellate court cannot acquire jurisdiction, and for that reason, the compliance with said requirement is jurisdictional (Layda vs. Legaspi, 39 Phil., 83; Lim vs. Singian, 37 Phil., 817)1 Defendants claim that plaintiff waived his right to question the timeliness of their appeal, inasmuch as he filed his motion to dismiss when the case has already been recomended to the Court of First Instance, citing in support of his submission the cases, among others, or Slade-Perkins vs. Perkins (57 Phil., 2243) and Luengco vs. Herrero (17 Phil., 29). In answer, it may be stated that said cases are not applicable to the case at bar, for the reason that the objections which were deemed waived therein refer to questions which do not affect the jurisdiction of the court. They can not, therefore be invoked as precedents in the determination of this case. (Miranda vs. Guanzon,supra.) Defendants, furthermore, argue that there was substantial compliance with the aforequoted provision of Section 2, Rule of the Rules of Court inasmuch as their failure therein provided, was the result of their agreement with the Justice of the Peace that it shall be paid to the Clerk of Court of First Instance, who will determine the proper amount to be paid. The contention is untenable. The provisions of the Rules of Court, especially those prescribing the period within which certain acts must be borne, or certain proceedings taken, which are intended to prevent needless delays and promote the speedy discharge of judicial business,2 can hardly by the subject of agreements or stipulations between a court and counsel.3 In fine, strict, not substantial, compliance therewith is required.4

Wherefore, finding no error in the order appealed from, the same is hereby affirmed, with costs against the defendants-appellants. So ordered. Paras, C.J., Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Endencia, and Gutierrez David, JJ., concur.

Footnotes
1

See also Roman Catholic Bishop of Tuguegarao vs. Director of Lands, 34 Phil., 623; Corbora, et al. vs. Alapado, 34 Phil., 920; Bermudez vs. Director of Lands, 36 Phil., 774; Miranda vs. Ganzon, et al., 92 Phil., 168; Rodrigo vs. Seridon, et al., G.R. No. L-7896, Res. of July 29, 1954.
2

Shioji vs. Harvey, 43 Phil., 333.

In Policarpio vs. Borja, et al., supra, the fact that the plaintiff us told by the Justice of the Peace to return another day did not justify his failure to perfect his appeal within the reglementary period.
4

Alvero vs. De la Rosa, 76 Phil., 428.

UDOLPH WAHL, JR., AND Dr. KURT WAHL, partners in the business firm of Rudolph Wahl and Co.,plaintiffs-appellants, vs. DONALDSON, SIMS & CO., defendants-appellees. Gibbs and Kincaid for appellants. Simplicio del Rosario for appellees. COOPER, J.:

This is an action brought by Rudolph Wahl & Co., vs. Donaldson, Sims and Co., based upon a contract by which the plaintiffs leased to the defendants a certain ship called Petrarch for the term of six months, under which contract the plaintiffs claimed that the defendants were indebted to them a balance of $25,484.38, with interest from the 30th day of July, 1901. Suit was instituted on the 4th day of March, 1902, and service of citation was had upon the defendants on the same day. The defendants failed to answer the complaint, and on the 18th day of April, 1902, judgment was rendered by default against the defendants in favor of the plaintiffs for the sum of $17,892.81. Afterwards, on the 10th day of June, 1902, the defendants made an application to the Court of First Instance for a new trial, under section 113 of the Code of Civil Procedure, 1901. This motion for a new trial was granted by the Court of First Instance, and the judgment by default against the defendants was set aside on the 20th day of June, 1902. After the granting of the motion for a new trial a demurrer was made by the defendants to the complaint which presented the question of the competency of the Court of First Instance to try the case. The objection was based upon the grounds that there was a provision contained in the contract to the following effect: If there should arise any difference of opinion between the parties to the contract, whether it may be with reference to the principal matter or in any detail, this difference shall be referred for arbitration to two competent persons in Hongkong, one of which shall be selected by each of the contracting parties, with the power to call in a third party in the event of a disagreement; the majority of the opinions will be final and obligatory to the end of compelling any payment. This award may be made a rule of the court. The question presented for our determination is whether a provision of this character is invalid as being against public policy. Agreements to refer matters in dispute to arbitration have been regarded generally as attempts to oust the jurisdiction of the court, and are not enforced. The rule is thus stated in Clark on Contracts, page 432:

A condition in a contract that disputes arising out of it shall be referred to arbitration is good where the amount of damages sustained by a breach of the contract is to be ascertained by specified arbitration before any right of action arises, but that it is illegal where all the matters in dispute of whatever sort may be referred to arbitrators and to them alone. In the first case a condition precedent to the accrual of a right of action is imposed, while in the second it is attempted to prevent any right of action accruing at all, and this can not be permitted. This seems to be the general rule in the United States, and we understand that in the civil law it is also the rule that, where there is a stipulation that all matters in dispute are to be referred to arbitrators and to them alone, such stipulation is contrary to public policy. We reach the conclusion that the Court of First Instance should have entertained jurisdiction in this case, notwithstanding the clause providing for arbitration above referred to. With regard to the sufficiency of the motion to set aside the judgment by default and the order of the court in granting the same, the majority of this court are of the opinion that there was no error in the action of the court. In this the writer does not concur. The application of the defendants, upon which the judgment was set aside, appears to be defective and not sufficient to have justified the setting aside of the judgment by default. There was no excuse whatever shown why the defendants failed to answer within the time prescribed by law. The citation was served upon the defendants on the 4th day of March, and the judgment by default was not taken until the 18th day of April, 1902. The application was based upon section 113 of the Code of Civil Procedure, 1901, which reads as follows: Upon such terms as may be just the court may relieve a party or his legal representative from a judgment, order, or other proceeding taken against him through his mistake, inadventure, surprise, or excusable neglect: Provided, That application therefor be made within a reasonable time, but in no case exceeding six months after such judgment, order, or proceedings was taken.

This seems to be a literal copy of section 473 of the Civil Code of Procedure of California, and, according to the well-known rule of construction, the decisions of the court of California, made prior to the adoption of the statute here, should have the same weight that such decisions would have in California. Under the construction by the supreme court of California of the section in question, it is stated that the application should show merits, and that this should be done with some degree of certainty and not left to surmise. In the case of Taylor vs. Randall (5 Cal., 80) an affidavit had been made to the effect that an instrument had been materially altered without showing in any manner in what the alteration consisted. It was held that this furnished no grounds on which to base a motion to set aside the judgment. It is said in the case of Bailey vs. Taffe (29 Cal., 422) that the better practice is to prepare and exhibit to the court the defendant's answer at the hearing of the motion. It is also held in the case of Reidy vs. Scott (53 Cal., 73) that there where the affidavit shows that the defense rests upon matters which would be deemed to be waived except for the interposition of a demurrer, the defense is merely of a technical character and the affidavit is insufficient. The affidavit in this case states in a general way that the defendants have a counterclaim against the plaintiffs for $125,000, based upon the failure on the part of the plaintiffs to perform the contract with regard to the Petrarch. This statement is too vague and uncertain to show merits in the defense. After the application to set aside the judgment had been granted, instead of presenting this defense, a demurrer is presented to the petition, based upon the purely technical grounds that under the contract the parties had agreed to settle the matters in dispute by arbitration at Hongkong. If the answer had been prepared by the defendants and presented to the Court of First Instance at the time of the granting of the order, the Court of First Instance must have concluded that the defense was based upon a technicality and the application must have been overruled. But, as stated before, this view is not concurred in by the majority of the court. The judgment of the court is sustaining the demurrer to the complaint and in holding that the Court of First Instance did not have jurisdiction on

account of the clause with reference to arbitration, was erroneous, and it will be set aside and a new trial had. The costs of this appeal is adjudged against the appellees, the defendants. It is so ordered and adjudged. Torres and Mapa, JJ., concur. Arellano, C.J., and McDonough, J., did not sit in this case.

Separate Opinions WILLARD, J., concurring: I agree with the result. Ladd, J., concurs.