G.R. No. 13862**. April 15, 1918
IN RE R. MCCULLOCH DICK.
CARSON, J.:
relies more especially upon the provisions of Act No. 2757 of the Philippine
Legislature, approved February 23, 1918. This Act is as follows:
“[No. 2757.]
“AN ACT TO PENALIZE THE PUBLICATION OF LIBELS AGAINST THE GOVERNMENT OF THE
PHILIPPINE ISLANDS OR OF THE UNITED STATES DURING THE PRESENT WAR.
“Be it enacted by the Senate and House of Representatives of the
Philippines in Legislature assembled and by the authority of the same:
“Section 1. It shall be unlawful to print, publish or circulate articles,
manuscripts, engravings, or caricatures directly or indirectly creating
sentiments favorable to the cause of the nations with which the United States is
at war, or redounding to the contempt or dishonor of the Government of the
Philippine Islands or of the United States, or tending to create obstacles for
said Governments in the successful prosecution of the present war in favor of
the United States.
“Sec. 2. Any person violating any of the provisions of this Act shall be
punished by a fine of not to exceed two thousand pesos or by imprisonment for
not less than one year, or both. In case the offender is a subject of a neutral
foreign nation, the Governor-General may, besides, order him deported after
service by the accused of the penalty imposed upon him.
“Sec. 3. This Act shall take effect on its approval and shall continue in
force until the sixteenth day of October next following the date on which the
President of the United States shall proclaim that peace has been reestablished
between the United States and Germany and her allies.
“Approved, February 23, 1918.”
In explanation of his failure to invite the attention of the court to the
provisions of this statute when the case was submitted for judgment, counsel for
the petitioner informs us that he first learned of its enactment on the day
following the promulgation of our decision; and he asserts that although it may
have been published and circulated in pamphlet form, it had not appeared in any
publication of general circulation prior to that date.
The contention of counsel would seem to be:
(1) That the express grant of power to deport subjects of neutral foreign
nations under the conditions indicated in the statute, carries with it an
implied negation of the right to deport aliens under any other conditions
whatever, and, especially, to deport alien subjects of allied nations.
(2) That the express grant of power to deport certain specifically defined
classes of aliens under Act No. 2757, discloses the belief of the legislature,
itself, that the Governor-General had no power, theretofore, to deport such
aliens under the provisions of section 69 of the Administrative Code of
1917.
These contentions seem to overlook the fact that the statute is manifestly a
war measure granting extraordinary powers during the period of war; and that its
provisions touching the deportation of neutral aliens are not inconsistent with
the exercise of the regulated power by the Governor-General to deport aliens
under the provisions of section 69 of the Administrative Code.
The manifest purpose and object of the deportation provisions of the statute
is merely to authorize the Governor- General, in his discretion, to order the
deportation of a subject of a neutral foreign nation without holding an
investigation of the ground upon which his action is based, under the terms of
section 69 of the Administrative Code, where it appears that such person has
been convicted of any of the crimes denned and penalized in the statute: such
investigation having been rendered unnecessary by the opportunity given the
convict to be heard and to defend himself in the course of his trial, prior to
his conviction, in a court of competent jurisdiction. Clearly, there is no
ground for a contention that this grant of power to the Governor-General, during
the period of the war, to order the summary deportation of certain aliens, after
their conviction in a court of law, without prior investigation, was intended to
have the effect of repealing by implication the regulated power theretofore
conferred upon him to deport aliens, upon prior investigation conducted in the
manner and form prescribed in section 69 of the Administrative Code.
We are not advised as to the reasons which induced the Legislature to limit
the application of the deportation provisions of the Act to subjects of neutral
foreign nations, though it may be that this was due, as suggested by counsel for
the petitioner, to the fear that a provision looking to the summary deportation
from the Philippines of subjects of allied or enemy foreign nations might
conflict with the terms of some treaty of alliance between the United States and
her allies, or with the measures adopted by the United States looking to the
internment or imprisonment of dangerous subjects of enemy countries.
But whatever may have been the reason which controlled the action of the
Legislature in this regard, we find no conflict between the provisions of Act
No. 2757, looking to the summary deportation of convict subjects of neutral
foreign nations, and the provisions of section 69 of the Code conferring a
regulated authority upon the Governor- General to deport aliens as an act of
state, upon investigation conducted in the manner and form prescribed in that
section. Certainly, the Act does not deprive the Governor-General of
any power he may have had, prior to its enactment, to deport aliens other than
those mentioned therein.
As to the contention that the express grant of power to deport certain
aliens, contained in Act No. 2757, demonstrates that the Legislature itself did
not believe that power was conferred upon the Governor-General to deport aliens
under the provisions of section 69 of the Administrative Code, and that this
court should not place a construction on that statute other than that given to
it by the lawmaker himself, it is to be observed.
(1) That under our system of government the duty and ultimate power to
construe the laws is vested in the judicial department, just as the duty and
ultimate power to make the laws is vested in the legislative department. So that
even if it were true, which we do not admit, that the provisions of Act No. 2757
disclose that the legislative body which enacted it was of opinion that prior
thereto the Governor-General had no authority under the law to deport aliens, we
should not be bound thereby. (Sutherland on Statutory Construction, 2d. Ed.,
Vol. II, par. 358, and many cases there cited in support of the doctrine.)
(2) The enactment of the deportation provisions of Act No. 2757 does not
justify the assumption of counsel that the legislator himself was of opinion
that the Governor-General is not authorized under the provisions of section 69
of the Administrative Code to deport aliens on prior investigation conducted in
the manner and form therein indicated. No such inference can legitimately be
drawn from the express grant in Act No. 2757 of temporary authority, as a war
measure, to deport summarily, and without holding the investigation prescribed
in the code, subjects of a neutral foreign power who have been convicted of any
of the offenses defined and penalized therein. The express grant of power to
deport such convicts without holding a prior investigation discloses merely the
.legislative belief, that after conviction in a court of law wherein the accused
is given every opportunity to be heard and to defend himself, a further
investigation by the Governor-General upon the question of his deportation will,
in most instances, be unnecessary, and that the summary deportation of such
convicts as a war measure may be of prime importance in the interests of the
state.
Even if it were admitted that the legislator had some doubt as to whether
lawful authority had been conferred upon the Governor-General to deport aliens
under congressional or focal legislation prior” to the enactment of Act No.
2757; and that confronted by the urgent or threatened necessity for the exercise
of such power in certain cases arising during the war, he deemed it prudent to
remove all occasion for doubts by an express grant of power in such cases; the
existence of such doubts in the mind of the legislator as to the meaning and
effect of the provisions of the statutes enacted by himself or his predecessors,
should not be permitted to have controlling, or even persuasive influence with
the courts when called upon to interpret and construe such legislative
provisions.
The motion for a rehearing should be and is denied.
Arellano, C. J., Torres, Araullo, and Avanceña, JJ.,
concur.
CONCURRING OPINION
MALCOLM, and FISHER, JJ.,
concurring:
Petitioner moves for reconsideration bringing to our attention Act No. 2757,
reading as follows:
“Section 1. It shall be unlawful to print, publish or circulate articles,
manuscripts, engravings or caricatures directly or indirectly creating
sentiments favorable to the cause of the nations with which the United States is
at war, or redounding to the contempt or dishonor of the Government of the
Philippine Islands or of the United States, or tending to create obstacles for
said governments in the successful prosecution of the present war in favor of
the United States.
“Sec. 2. Any person violating any of the provisions of this Act shall be
punished by a fine of not to exceed two thousand pesos or by imprisonment for
not less than one year, or both. In case the offender is a subject of a neutral
foreign nation, the Governor-General may, besides, order him deported after
service by the accused of the penalty imposed upon him.
As far as Act No. 2757 affects the case, it merely serves as persuasive
authority demonstrating that express and explicit legislative authority is
necessary in order to deport aliens. The sovereign right to deport aliens, the
Legislature says, is not to be inferred as an act of state in a government of
derived powers and is not to be implied from a section of the Administrative
Code regulating but not conferring power. When the Legislature desires such
power to exist, it will grant it in language as plain as that found in Act No.
2757. The motion has no merit as based on this ground.
DISSENTING OPINION
STREET, J., dissenting:
As one of the dissenting Justices in this case I take advantage of the
opportunity afforded by the presentation of a motion for a rehearing briefly to
express my views on certain important phases of the case, avoiding, so far as
practicable, a repetition of what has been said in the dissenting opinions of
Justice Johnson and Justice Malcolm.
I.
The first proposition which we propose to maintain is that the power to
deport does not inhere in the Governor- General by virtue of his office.
The Governor-General holds his commission from the people of the United
States. He therefore derives his powers from statutes which embody the
principles of the American law and reflect the policy and traditions of the
American people. The President does not exercise any such power as that here
ascribed to the Governor-General; and no attempt was ever made by Congress to
bestow such power upon the President, save in a single instance, and this
episode in American history deserves to be here recorded.
In the year 1798, it may be remembered, war with France seemed imminent; and
the Federalist party which was then dominant in American politics thought well
to pass four Acts which have been known in subsequent history as the Alien and
Sedition Laws. By the Alien Act of June 25, 1798, the President was empowered to
order out of the country all aliens whom he should judge dangerous to the peace
and safety of the country and forcibly to deport or imprison any aliens who
should disregard his order.
This Act expired in 1804, and though President Adams did little or nothing to
enforce its measures, the statute was criticised by the followers of Thomas
Jefferson as constituting an infringement of the principles on which the
Republic was founded. The adverse public sentiment thus engendered was so great
as to contribute measurably to the downfall of the Federalist party and the
consequent rise to power of the political force which has been known in
subsequent history as the Democratic party. The fate of that law and its authors
is here mentioned in order to show that the idea of deporting aliens by
executive authority runs directly counter to the most fundamental notions of the
American people.
It has always been taken for granted both in England and in the United States
that the stranger who comes within our gates is free to remain unless amenable
to deportation under the special and express provisions of law. The general
practice thus favors the right to remain in the chosen domicile, and exportation
is admitted only in aid of the supervision and control exercised by Congress
over the subject of immigration. In the whole history of the country no single
instance can apparently be cited where an alien has been deported against his
will without the express warrant of law. It is true that several years ago
Governor-General Forbes deported several Chinese from these Islands ; but the
deportees soon came back and instituted a civil action against him for damages.
No further attempt was made by him to exercise his supposed power of deportation
against them.
The reasons why the American people have always been deeply suspicious of
laws designed to sanction the expulsion of aliens by executive authority are
manifold. The early pioneers of America were in great part refugees from
persecution. When they occupied the American soil they dedicated it to the
purposes of liberty and determined that America should be an asylum for the
oppressed of all nations. The character so stamped upon the country has not been
divested.
Nor should it be supposed that the consideration shown to foreigners by the
laws of the United States is a mere manifestation of sentiment born of
conditions peculiar to us. It came to us from England as a heritage from the
past. The Magna Charta (1215, A. D.) contains provisions restraining the
authority of the king in dealing with the subjects of foreign powers (arts. 41
and 42). Merchants in particular were to have free ingress and egress except in
times of war and were expressly declared to be exempt from unjust exactions.
This was at a time, be it observed, when feudal barons throughout Europe were
accustomed to rob and pillage merchants. It is a recognized fact in the
constitutional history of England that, although anciently the king was supposed
to have the right to expel aliens, the power fell into disuse at an early day
and has never been exercised since 1575, A. D., in the reign of Queen Elizabeth.
(Tasewell-Langmead, English Constitutional History, 5th ed., p. 554, note.)
In other words, under the policy which is at the basis of the institutions
both of England and the United States, neither the King nor the President
exercises the power of deporting aliens without the express authority of
statute. It is believed that the basic principle thus settled should not be
lightly surrendered in any jurisdiction subject to the sovereignty of the United
States. History plainly teaches that if the constitutional bulwarks which have
been erected in the course of centuries are permitted to be worn away under the
subtle pressure of inherent or implied administrative powers, no effectual
resistance can ever be interposed to the encroachments of executive
authority.
II.
The principal question in the case is whether a power to deport was conferred
on the Governor-General by Act No. 2113 of the Philippine Legislature. It cannot
be maintained that Act No. 2113 expressly confers upon the Governor-General a
power to deport; but it is insisted that the Legislature recognized the
existence of such a power in passing a law to restrain its abuse; and it is
accordingly argued that the power has been thus created by implication. Several
weighty reasons suggest themselves to the mind of this writer why such a
proposition cannot possibly be true.
The process of drawing things out of a statute by implication is merely an
incident in the process of discovering the legislative intent; and where the
intention is revealed, no interpretation or construction is admissible which
contradicts that intention.
The preamble of this statute clearly shows that the Legislature intended to
strike at a manifestation of executive power which was believed to be a menace
to “the individual security of all residents of these Islands;” and though it is
recited, in the preamble, that it had been decided that the
Governor-General had authority to deport, it is evident that the Legislature
could not have intended either to create that power or to recognize it except as
a de facto exercise of authority which should be restrained. As a
matter of fact the statement concerning what had been decided was only partially
true, and the recital was therefore apparently based to some extent upon a
misconception. This would be of no importance if the statute had stated in
express terms that the Governor-General should have the power in question, for a
legislative Act cannot be impeached by showing that the legislators misconceived
the situation with which they were dealing. But when it is attempted to derive
by implication a power which has not been expressly granted, the recitals of the
preamble are relevant to show what the real intention was.
It believes human intelligence to suppose that a Legislature which in one
breath denounced a certain power as dangerous to individual security and in
another made a law to curb its exercise, intended thereby to create what they
had denounced. Above all, that a Philippine Legislature, composed almost
entirely of native Filipinos, intended to recreate from Spanish times and place
in the hand of a foreign ruler, however benevolent, a power fraught with such
dangerous possibilities passes belief. The more reasonable supposition is that
the Legislature intended to regulate the procedure only, leaving the occasions
for its exercise to be sought in other statutes or perhaps to be defined in
future laws. In the majority opinion there is one statement with which we
heartily agree. It is in these words: “The cautious phrasing of the paragraph of
the preamble which declared that it has been decided that the Governor-General
has authority to deport foreigners by due process of law quite clearly indicates
that the lawmakers desired to reserve their own views on that subject.” The
extreme tension which existed in those days between the Philippine Assembly and
the Chief Executive of the Islands is matter of history.
It will be observed that the power which is supposed to have been conferred
upon the Governor-General by Act No. 2113 is undefined, since the causes which
might justify him in deporting an alien are not specified. It results that, if
this general power exists, he will be the sole judge of the sufficiency of the
cause for deportation. The mere recognition of the existence of such a power in
the Governor-General would cause thousands of the inhabitants of these Islands
instantly to feel that the security of person and property, to the preservation
of which the honor of the American people is here pledged, had been gravely and
perhaps irremediably impaired.
A further reason for believing that the power in question was not created by
implication is this: There are some things which the law does not accept upon
mere implication. Since the days of the Stuarts at least no person living under
the common law has, with the approval of the courts, been deprived of life or
liberty by power created by implication. He who would touch life or liberty is
required to show the express authority of law. Magna Charta declares that no
freeman shall be taken or imprisoned or exiled except by the legal judgment of
his peers or of the law of the land (art. 39). The constitutions of the various
American States, as well as the Organic Law of these Islands, bring down to our
own day the force of the term “law of the land” in the phrase “due process of
law,” and the latter expression imports the necessity, not only of a method of
proceeding, but a law upon which the process can operate.
It is rudimentary in our jurisprudence that statutes authorizing summary
procedings, i. e., such as are not according to the course of the common law or
are without the ordinary forms of judicial procedure, are to be strictly
construed. (36 Cyc, 1189.) Again, a statute in derogation of common law or
common right is not to be extended beyond the words used by the Legislature; and
it is said that where a statute not only effects a change in common law but is
also in derogation of common right, it must be construed with especial
strictness. (36 Cyc, 1179.) Statutes which operate in restraint of personal
liberty are of this class.
There are some things which are too fundamental to be expounded; they can
only be felt; and to be felt they must be imbibed, so to speak, from the
atmosphere in which one has been nurtured. To the mind of a person indoctrinated
with the spirit of the common law there must always be the strongest kind of
bias against the abrogation or impairment of personal security by the mere
implication or artificial construction of any statute.
III.
If Act No. 2113 did not create a power in the Governor-General to deport, it
is evident that no such power was created by the incorporation of the substance
of that Act in section 83 of the Administrative Code of 1916, or its successor,
section 69 of the Administrative Code of 1917. Section 3 of both these Codes
defines their relation to prior laws by declaring that such provisions of the
Code as incorporate prior laws shall be deemed to be made in continuation
thereof and to be in the nature of amendments thereto, without prejudice to any
right already accrued. The reenactment of this provision in the two Codes
therefore raised no additional presumption of a legislative intent to create the
power. It will be observed that the Administrative Code is chiefly conversant
with the organization and administration of the Government, and while it defines
the powers of the different officials so far as general statements concerning
their powers could be conveniently framed, it is not concerned with defining the
conditions and rules which protect individuals who come within the orbit of the
operation of governmental functionaries. As the provision now stands in the Code
(sec. 69) it must be considered to be of a purely procedural nature.
IV.
As we have already shown the laws of the United States with reference to the
right of foreigners to reside therein uniformly proceed upon the assumption that
they are entitled to remain unless subject to deportation under special and
express provisions of law. The Act of Congress of February 5, 1917, which was
passed over the Presidential veto, entitled “An Act to regulate the immigration
of aliens to, and the residence of aliens in, the United States” is the last
special Act of Congress dealing with the subject of immigration. This Act was
expressly made applicable to the Philippine Islands (sec. 1) and should be
construed in pari materia with our own laws. It purports in its title
to deal with the residence of aliens in American territory; and in the body of
the Act are found numerous provisions, especially in section 19, denning the
conditions under which aliens who have come into the country may be lawfully
deported.
Considering the large purview of this statute and the detailed character of
the legislation contained in it, the conclusion seems irresistible that Congress
intended that aliens not deportable under its provisions, or by some other
statute expressly authorizing deportation, such as the Chinese Exclusion Law,
should have a right to remain on American territory. Of course if we had upon
the statute books of the Philippine Islands a law giving the Governor- General
the express power to deport, this Act of Congress would not have the effect of
abrogating such law. But the power claimed on behalf of the Governor-General
under the local statute arises by implication only; and we think the implication
from the Act of Congress that an alien not deportable under the provisions of
that, or some other special Act, is entitled to remain in American territory is
at least as strong as the implication from Act No. 2113 (sec. 69, Admin. Code)
that the Governor-General may put him out. In Tiaco vs. Forbes (228 U.
S., 549) Justice Holmes observed that the extension of the Chinese exclusion and
immigration laws to the Philippine Islands had no bearing on that case; but that
could only have been said because a special Act (No. 1986) had been passed by
our legislature which determined the case and made the other statutes
irrelevant.
Something is said in the majority opinion to the effect that inasmuch as
section 69 of the Administrative Code was enacted and approved by the President
after the Act of Congress of February 5, 1917, had already become a law, the
Code provision last mentioned necessarily superseded anything to the contrary in
the Act of Congress and restored the law to where it was before the latter Act
was passed. The trouble, however, is the same as before namely, in getting this
power out of the Code provision by implication; and in the end the question is,
as it was in the beginning, on the proper construction to be placed upon section
69, and the preceding provision in Act No. 2113.
V.
Act No. 2757 of the Philippine Legislature also furnishes confirmatory proof
of the correctness of the position of the dissenting judges. This Act was passed
upon February 23, 1918, the same day the Governor-General issued his order for
an investigation of the charges preferred in this case against the petitioner.
The Act contains internal evidence that it was drawn in contemplation of the
very offense which the petitioner is supposed to have committed, namely,
obstructing the Government in the prosecution of the present war. The statute
does not say in so many words that the Governor-General shall not exercise a
power of deportation otherwise than in conformity with this Act; and hence it
may still be argued that if the general power to deport already existed under
section 69 of the Administrative Code, it is not taken away by this Act. We do
not think, however, that this argument quite meets the case. The Act indicates
that the Legislature thought the situation was one requiring legislative action;
and the circumstance that the Act makes provision for the deportation of the
subjects of neutral foreign nation—not of belligerent foreign nation— after
conviction in a court of justice, shows that in the opinion of the Legislature
the general power to deport was non- existent. It is as if the Legislature had
been called upon to express its opinion upon the point whether the general power
to deport existed and had replied in this rescript that it does not. It was
certainly singular for the Legislature to insert into this Act a special
provision for the deportation of a certain class of foreigners, after conviction
in court, if it had been supposed that the Governor-General already had the
power to deport all. And again we may say, repeating a form of expression
already used with reference to the Act of Congress of February 5, 1917, the
implication from Act No. 2757 to the effect that the petitioner may remain in
the Islands is at least as strong as the implication from section 69 of the
Administrative Code that the Governor-General may put him out. And any doubt
that exists should be resolved favorably to the right of individual
security.
VI.
That we may not be supposed to be advocating a view of the case which, if
adopted, would expose public interests in these Islands to peril, we will add
that there are ample provisions upon our statute books under which such
activities as are charged against the petitioner can be punished and controlled.
This is obvious not only from the penal provisions of Act No. 2757, but also
from Act No. 1692 (amendatory of section 8 of Act No. 292) and from subsection
(b) of section 1954, in relation with subsection (e) of section 2757,
of the Administrative Code. Under Act No. 1692 any person who publishes a
writing which tends to disturb the peace of the community or the safety or order
of the Government is punishable by a fine of four thousand pesos or by
imprisonment for not exceeding two years or both. Under subsection (b)
of section 1954 of the Administrative Code all written or printed matter which
tends to disturb the peace of the community or to stir up the people against the
lawful authorities is absolutely non-mailable, and any person who deposits such
matter for carriage in the Philippine mails is subject to a fine of not more
than three hundred pesos or imprisonment for not more than six months, or both.
(Admin. Code, sec. 2757-e).
VII.
The prevailing opinion written by Justice Carson in this case, in so far as
it relates to the source of the power of deportation, will be found to rest on
three cardinal ideas or propositions which we cull from different parts of the
opinion and here exhibit in what appears to be their logical order. They are
these:
“1. We think that an examination of the history of the office of the Chief
Executive in these Islands under American sovereignty will disclose that, until
and unless he is deprived of such authority by some Act of Congress or of the
Philippine Legislature, the power of the Philippine Government to deport aliens
as an act of state is vested in the Governor-General by virtue of his office,
subject only to the regulations prescribed in section 69 of the Administrative
Code of 1917, or by future legislation on the subject.
“2. We are well satisfied, also, that under American sovereignty, the
essentially civil power to deport aliens as an act of state was originally
vested in the Military Governor and thereafter in the first Civil Governor; and
that it has continued in the office of the Chief Executive, the
Governor-General, ever since, except in so far as his power has been restricted,
limited, or controlled by the various acts of the Philippine Legislature to
which reference has already been made.
“3. The Governor-General of the Philippine Islands has power to deport
aliens, as an act of state, upon prior investigation conducted in the manner and
form prescribed in section 69 of the Administrative Code.”
In all of these statements there appears a factor which to some extent
envelops the meaning in obscurity. This is found in the phrase “act of state.”
As the term is used by Justice Carson it is evidently intended to admonish us
that we are here confronted with a manifestation of power of so exalted a type
as to be beyond the range of judicial scrutiny. We submit that the expression
has little or no relevancy to the present discussion and that the suggestion
intended to be conveyed by it has no support in legal authority. The mere
circumstance that an act is an act of state (i. e. an act exerted by a
government against the subject of a foreign power), by no means makes’ it valid,
when directly attacked upon writ of habeas corpus, if it is in fact
unauthorized.
The term “act of state” is used by the English Courts to indicate the
immunity from civil liability which is enjoyed by the crown, the officers of
state, and their agents, in respect to damage which may be done to aliens in
exercising certain governmental powers. (Street, Foundations of Legal Liability,
Vol. I, pp. 36, 37.) The peculiar doctrine indicated by this term has been
frequently applied in cases arising in India between British subjects acting
under authority of the Indian Government and citizens of the independent States.
(See “Act of State as Applied to the Government of India,” by C. P. Ilbert, I
Eng. Rul. Cas., 821 et seq.) By virtue of this doctrine it is held that
a state official, or person acting under orders from him, is not liable for the
damage inflicted by an act of state on the subject of a foreign power even
though the act which causes such damage is unauthorized by law.
The doctrine in question has rarely been the subject of discussion in
American decisions; but the idea came within the ken of the Supreme Court of the
United States in the case of Tiaco vs. Forbes (228 U. S., 549; 57 L.
ed., 967). This as has been stated, was a civil action to recover damages
brought in the courts of the Philippine Islands by certain Chinese who alleged
that they had been unlawfully deported. In order to protect the Governor-General
from the possible consequences of this deportation the Philippine Legislature by
a special Act ratified and confirmed his action. (Act No. 1986.) The Supreme
Court of the United States held, affirming the decision of this court, that the
action for damages could not be maintained. The decision was chiefly based on
the effect of the curative Act; and the court expressly refrained from deciding
whether the Governor-General would have been protected in that case without the
aid of the statute, on the ground of an immunity enjoyed by him in the exercise
of powers of state. The case at bar is wholly different. Here the authority of
the Governor-General to make the order of deportation is directly attacked on a
writ of habeas corpus, and the question is simply whether the Governor-General
has the power to deport—not whether he would be civilly liable in damages for
the consequences of that Act, supposing it to be illegal.
The doctrine indicated by the term “act of state” is a shield, or weapon of
defense, for the state official—not a magical device for enduing him with
power.
Something must now in turn be said concerning each of the three propositions
above quoted by us from the prevailing opinion.
The first statement to the effect that the power to deport is vested in the
Governor-General by virtue of his office and may be exercised by him except as
he is deprived of such authority by Act of Congress or of the Philippine
Legislature is wholly mistaken. The exact converse is true, namely, that there
is no such power vested in the Governor-General by virtue of his office, and he
has only such power in this respect as is conferred by Act of Congress or of the
Philippine Legislature.
No person has had the temerity to argue or assert in this court that the
Governor-General under American sovereignty has inherited the power to deport
which was conferred on the Spanish Governor-General by royal orders of the King
of Spain. It is accepted by all that that power was of a political nature and
vanish with the change of sovereignty.
As we have already shown, the political and constitutional history of our own
country affords no support for proposition that such a power exists, and that it
did not exist is also clearly demonstrated in the dissenting opinion of Mr.
Justice Malcolm in this case. It is absolutely inconsistent with the law and
practice of our Government from the beginning.
But because there was once a Military Governor here who was charged with the
duty of pacifying an insurrection the whole order of things is supposed to have
been changed. In the case of Forbes vs. Chuoco Tiaco and Crossfleld (16
Phil. Rep., 534), three of the Justices of this court signed an opinion which
was in part based on the idea of the existence of such a power in the
Governor-General; but that notion was impliedly repudiated by the Supreme Court
of the United States upon appeal and is no longer sustained by the Justice of
this court who wrote the opinion signed by three in that case. It should be
permitted to pass into history like the memory of an evil dream.
The second proposition is closely connected with the first. It is as thin and
as nicely spun as a cobweb and equally fragile. The idea is that the Military
Governor had the right to deport aliens, but that in his hands it was an
essentially civil power. Being a civil power, it was naturally inherited by
the Civil Governor, who succeeded, or superseded, the Military Governor; and it
therefore passed ultimately to the Governor-General. (Be it observed that if it
had been admitted that it was a military power, it could not have been argued
that the Civil Governor had inherited it). Subtleties such as these awaken no
response in the consciousness. If the Military Governor had wanted to deport an
alien of course he would Have done it; but in doing so he would have been acting
under the authority of the President of the United States as Commander in Chief
of the American Army. Something has been said of the Spooner Amendment of March
2, 1901. Anybody who reads it with a detached mind will see that it was a purely
transitory provision and that it speaks of the past. There never was, of course,
any Presidential order or statute of any sort, created by American authority,
which expressly gave the power to deport to anybody.
The third proposition which we have quoted from the prevailing opinion is
somewhat more inclusive and requires more careful examination. It is supposed to
have two legs upon either of which, or both, it can rest at will. We quote from
that portion of the opinion in which this phenomenon is elucidated.
“It is not necessary, at this time, to determine whether, under the various
organic acts of the Philippine Government, the power to deport aliens, as an act
of state, is vested in the Governor-General ‘by virtue of his office alone,’
subject merely to regulation by the Philippine Legislature ; or whether his
authority in the premises is derived wholly from the Philippine Legislature by
virtue of a grant of power, express or implied, in section 69 of the
Administrative Code of 1917; because deportations of aliens by the
Governor-General, as an act of state, upon prior investigation conducted in the
manner and form prescribed in section 69 of the Administrative Code may properly
be regarded as made ‘under the combined powers’ of the Governor-General and the
Philippine Legislature; authority for such deportations having been conferred
upon the Governor-General, so far as that may be necessary, by the provisions of
that section, as we believe and shall endeavor to show hereafter.”
We submit that the proof rather doubtfully promised in the closing words of
this paragraph is not forthcoming and cannot be produced. The author of the
opinion, it is true, glides off smoothly into a quotation from the decision of
the Supreme Court of the United States in the case of Tiaco vs. Forbes (228 U.
S., 549) which seems superficially to give some countenance to his
generalization, but which on examination falls far short of meeting the
exigency. The truth is Justice Carson has put a strain upon the decision of the
Supreme Court of the United States which it cannot bear.
In Tiaco vs. Forbes the Legislature of the Philippine Islands had
passed a special Act (No. 1986) after the deportation had been effected,
ratifying it in all respects. Justice Holmes, delivering the opinion of the
court, considered that this curative statute operated with the same legal effect
as if there had been an antecedent express authority from the Legislature to
make the deportation in question. The legislative authority therefore
unquestionably existed; and the Governor-General, as Chief Executive, had acted
in pursuance of that authority. It was therefore entirely correct to say, as
Justice Holmes said, simply and as we think without any occult meaning, that the
deportation was effected under the combined powers of the Legislature and of the
Governor-General, that is, the power of the Legislature to direct and of the
Governor-General to execute. In the present case the Governor-General stands
ready to execute; but the question to be decided is; Has the legislative
authority been granted? Justice Carson in forming his combination in this case,
so as to give to the deportation the support of “the combined powers of the
Governor-General and of the Philippine Legislature,” has overlooked the
important fact that, where two integral members are essential to a combination,
the combination is worthless unless both members will function. A chain is no
stronger that its weakest link. The opinion of the Supreme Court of the United
States, to which reference has been made, does not give the slightest support to
the position assumed by this court; and if the prevailing opinion is sound, it
must rest upon the validity of the interpretation placed by the majority upon
section 69 of the Administrative Code. Our reasons for believing that the
interpretation of that provision adopted by them is erroneous have already been
expressed.
VIII.
It remains to say a few words about the case of Chan Yick Sam vs.
Prosecuting Attorney of Manila (31 Phil. Rep., 560), upon which much reliance is
apparently placed in the prevailing opinion as authority for the proposition
that Act No, 2113 furnished full and lawful authority to the Governor-General to
proceed to deport a foreigner upon grounds satisfactory to himself. We do not so
regard it. The only point actually decided in that case was that a writ of
prohibition would not lie to restrain a person, acting under orders from the
Governor-General, from holding an investigation in conformity with the procedure
prescribed in that Act. No attempt had been made to deprive the petitioner of
his liberty or to deport him, and no attempt had even been made to compel him to
appear before the agent. The result of the investigation might have been
favorable to the petitioner or, if adverse, the Governor- General might have
decided that he had no authority to deport him, in either of which events the
mere holding of the inquiry which he was seeking to restrain would not have
injuriously affected any right of the petitioner.
Nobody has here questioned the authority of the Governor-General to appoint
an agent to conduct an investigation under section 69 of the Administrative Code
(see also section 71 of same Code); and if such an investigation should reveal a
statutory ground for deportation, the Governor-General would be the proper
official to make it. For instance, a person judicially convicted of a violation
of section 2 of Act No. 2381 (the Opium Law) and sentenced to deportation as a
recidivist might by eluding the vigilance of the authorities reenter the
Islands. By the Jones Law (Act of Congress of August 29, 1916) the
Governor-General is made directly responsible for the faithful execution of the
laws of the Philippine Islands and of the United States operative therein. He
would therefore have the power, if he should see fit, to proceed under section
69 in effecting a second deportation of the convicted person. A careful gleaning
of our statutes would undoubtedly reveal other situations which would support
similar administrative proceedings under the same section; and if any defect
should be revealed in the machinery for the enforcement of the immigrating or
Chinese exclusion law, recourse might be of course had to the same provision, as
supplying an appropriate procedure.
This is mentioned not only for the purpose of showing that a writ of
prohibition, really an injunction, could not be properly issued against an agent
conducting an investigation for the Governor-General, but also to indicate that
even as section 69 now stands in the Administrative Code, and considered simply
as a procedural provision, there are already upon our books provisions
authorizing deportation which can be carried into effect in the manner
prescribed by that section.
It is not improbable that the Justices who concurred in the opinion in the
Chan Yick Sam case were then of the opinion that the Governor-General had
authority under Act No. 2113 to deport the petitioner and regarded the
proceedings of which complaint was made as a proper preliminary to the exercise
of that power; but nothing actually stated in the opinion expresses that belief.
Certainly we do not regard a mere inference as to the existence of such a power
to be binding upon this court as a precedent in a matter of such vital
importance. It is evident, from the brevity of the opinion and the failure
definitely to determine the grounds upon which it was to be supported, that it
was accorded but a scanty consideration—doubtless quite sufficient to warrant
the conclusion that prohibition would not lie in that particular case, but
wholly insufficient to justify the engrafting upon our jurisprudence of the
doctrine which it is supposed to establish by inference.
IX.
The conclusion in my opinion is that the Governor-General has no power to
deport the petitioner upon the facts appearing of record, that the petitioner
should have been set at liberty upon the original hearing before this court, and
that consequently the motion for a rehearing 3hould now be granted and the
former judgment reversed,— not exclusively on the special ground stated in the
motion to rehear, but on the ground that the original judgment is fundamentally
erroneous.
DISSENTING OPINION
FISHER, J., dissenting:
I concur in the dissenting opinion of Justices Johnson, Malcolm, and Street.
I think it proper to add, however, to what has been said by them, that to my
mind the most important effect of the decision in this case is the definite
abandonment by this court of the doctrine of the “inherent power” of the
Governor-General to deport aliens. This is clearly shown by the statement in the
majority opinion that the concurring Justices are “of opinion that by the
enactment of the series of statutes just cited the Philippine Legislature
conferred upon the Governor-General authority to deport subjects of
foreign powers * * *.”
Recognition of the fact that the Legislature is the repository of
the power to expel or exclude aliens is frequently repeated in the majority
opinion. It is true that after exhaustively stating the grounds for the opinion
that the Legislature intended to confer and did confer the
power under consideration it is said that “an examination of the history of the
office of the Chief Executive in these Islands under American sovereignty will
disclose that until and unless he is deprived of such authority by some
act of Congress or of the Philippine Legislature the power of the
Philippine Government to deport aliens as an act of state is vested in the
Governor-General by virtue of his office. * * *.”
I am of the opinion that neither the statutes cited nor the historical
antecedent invoked justify the conclusions which the majority draw from them,
but I rejoice to know that those conclusions rest the power to deport aliens
upon a grant of power from the Philippine Legislature or the
acquiescence of that body in its exercise and not upon the pernicious
and utterly undemocratic doctrine of the “inherent powers” of the Executive.
If the extraordinary powers with which the majority conceive the
Governor-General to be invested are derived from rules of law enacted by the
Philippine Legislature or over which it has the power of repeal that body may,
by the repeal or amendment of those rules, withdraw or modify that power. If the
authority has been conferred by the Philippine Legislature, or although
derived from some other source, may be withdrawn by it, the full
responsibility for its existence rests, as it should, directly upon the
Legislature, as the immediate source—by grant or by acquiescence—of that
authority, and indirectly upon the electorate to which the Legislature is
accountable for all its acts or omissions.
An oppressive or unwise statute may for a time be endured with fortitude, for
the injustices resulting from its enforcement are certain, in the end, to bring
about its repeal ; but an “inherent” executive power, above the law and the very
source of law, would be bound, by its very nature, to cause the keenest
apprehension on the part of those exposed to its action, regardless of the
integrity and honesty of the official in whom that power might be vested. To
destroy every vestige of such power and to subject every officer of the
Government, from the highest to the lowest, to the rule of law, has been the
purpose of democracy from the birth of the idea to the present day. In no
country has the attainment of that object been more earnestly sought than in the
United States. It would, indeed, be strange were the United States to leave as a
legacy to this new democracy of the Orient, the false doctrine that the rule of
the people is compatible with the existence of an executive office whose
incumbent is vested with “inherent” powers beyond their control.
The reasons for my dissent are principally that the majority opinion assumes
not only that it is to be inferred that by the enactment of section 69
of the Administrative Code and its antecedent statutes the Legislature intended
to confer upon the Governor-General the unrestricted power to deport aliens, but
that it may lawfully delegate to him such authority. I say “unrestricted” power,
because while section 69 requires that certain formalities be complied with
before the obnoxious alien may be deported, those formalities afford no
protection whatever. Of what does it avail that the alien is to be given a
hearing, to be informed of the charges against him, to have counsel, and .to
produce witnesses, if there is no rule by which to determine the legal
effect of the answer which he may make to the charges ? It is a useless and vain
formality, to require that the alien shall be heard before he is expelled, if
the expulsion may take place regardless of anything he may say. I maintain that
the mere formality of a hearing is not in itself sufficient to constitute due
process of law. The requirement of due process in such cases implies not only a
hearing, but a rule of law defining the standard of conduct for the
violation of which the right of residence and asylum which aliens enjoy under
our statutes is to be forfeited. As was said by the Supreme Court of the United
States in the Japanese Immigrant Case (189 U. S., 100):
“This court has never held, nor must we now be understood as holding, that
administrative officers, when executing the provisions of a statute involving
the liberty of persons, may disregard the fundamental principles that inhere in
‘due process of law’ aÂŁ understood at the time of the adoption of the
Constitution. One of these principles is that no person shall be deprived of his
liberty without opportunity, at some time, to be heard before such officers,
in respect of the matters upon which that liberty depends, * * *.”
It is not enough that they be given an opportunity to be heard
before being deprived of their liberty—that alone would be a vain formality—but
they must be heard “in respect of the matters upon which that liberty
depends.” By whom is to be determined for what matters that liberty may be
forfeited? I answer unhesitatingly, by the Legislature. Law is essentially, a
rule of conduct, prescribed by the law-making power. An alien is or is not
obnoxious according to his adherence to or departure from the course of conduct
prescribed by the rule. Under the various Acts of Congress and of the Philippine
Legislature which expressly authorize the deportation of aliens, the conduct
required of them is made known by the prohibition of certain acts, the doing of
which renders them liable to expulsion, after a hearing upon the issue of the
commission of the acts which produce the forfeiture of the right of
residence—“in respect of the matters upon which the liberty
depends”
I am, therefore, of the opinion that if the Philippine Legislature—with the
approval of the President, as required by the Jones Law with respect to acts
which “affect” immigration—had, in so many words, attempted to confer
upon the Governor-General the unrestricted discretionary power to deport aliens,
after such a hearing, whenever he might deem it proper to do so, such a statute
would be void as being obnoxious to the requirement of due process of law.
Furthermore”, it would, in my judgment, be invalid as an attempt to delegate to
him power of a legislative nature. The determination of the rules of conduct by
which the inhabitants of our Territory are to be governed is a function
essentially legislative in character. The Legislature may delegate to an
executive the authority to ascertain the existence of the facts upon which the
application of the rule of law depends, but not the authority to create the rule
for each particular case, apply it, and enforce his judgment.
It is significant that it was in a case involving the rights a Chinese alien
(Yick Wo vs. Hopkins, 118 U. S., 356) that our highest court thus
epitomized the essence of that system of government which we are striving to
maintain for ourselves and which we hope the people of these Islands will
forever retain as the best gift we can bestow upon them:
“When we consider the nature and the theory of our institutions ot
government, the principles upon which they are supposed to rest, and review the
history of their development, we are constrained to conclude that they do not
mean to leave the r,oom for the play and action of purely personal and arbitrary
power. Sovereignty itself is, of course, not subject to law, for it is the
author and source of law; but in our system, while sovereign powers are
delegated to the agencies of government, sovereignty itself remains with the
people, by whom and for whom all government exists and acts. And the law is the
definition and limitation of power. It is, indeed, quite true, that there must
always be lodged somewhere, and in some person or body, the authority of final
decision; and, in many cases of mere administration the responsibility is purely
political, no appeal lying except to the ultimate tribunal of the public
judgment, exercised either in the pressure of opinion or by means of the
suffrage. But the fundamental rights to life, liberty, and the pursuit of
happiness, considered as individual possessions, are secured by those maxims of
constitutional law which are the monuments showing the victorious progress of
the race in securing to men the blessings of civilization under the reign of
just and equal laws, so that, in the famous language of the Massachusetts Bill
of Rights, the government of the commonwealth ‘may be a government of laws and
not of men.’ For, the very idea that one man may be compelled to hold his life,
or the means of living, or any material right essential to the enjoyment of
life, at the mere will of another, seems to be intolerable in any country where
freedom prevails, as being the essence of slavery itself.”