ARSENIO SOLIDUM, JUDGE OF THE COURT OF FIRST INSTANCE OF MANILA AND HERMOGENES CONCEPCION, JR. AS CITY FISCAL OF MANILA, PETITIONERS, VS. JAIME HERNANDEZ, RESPONDENT.

The facts of this case, as related by the City Fiscal of Manila and adopted
by the herein respondent, are as follows:

In Criminal Case No. 171.52 entitled the “People of the Philippines
vs. Secretary Jaime Hernandez,” of the Court of First Instance of Manila,
Branch XVII presided over by appellant Judge Arsenio Solidum, wherein appellee
is charged with violation of Article 216 of the Revised Penal Code, appellant
Hermogenes Concepcion, Jr. filed on April 18, 1959 an amended information
alleging in substance that appellee, having acquired shares of stock in the
Avegon Construction and Electrical Co., Inc., and having thus become interested,
directly or indirectly, in its business, granted said corporation tax exemptions
and otherwise acted favorably upon its various requests and petitions in his
capacity as Secretary of Finance, and participated, as presiding officer, and
member of the Monetary Board of the Central Rank, in meetings thereof wherein
said Board decided to grant, and in fact granted said corporation dollar
allocations in the total amount of $1,612,224 from 1954 to 1958 and otherwise
acted favorably on its other requests and petitions.

On June 15, 1959, appellee filed a motion to quash said amended information
on the ground that the facts charged therein do not constitute an offense,
alleging three reasons in support, to wit:

1) that ‘the mere ownership by him of shares, of stock in a private
corporation, whether or not that corporation may transact official business with
him in his official capacity, does not fall within the purview of prohibited
interest in a ‘contrato u operacion’ under Article 216 of the Revised Penal
Code; 2) that petitioner had no interest or shareholding whatever in the
corporation, Avegon, Inc., as of any of the material dates when said corporation
was granted its tax exemption privileges in the Department of Finance and other
requests by the Monetary Board of the Central Bank; and 3) that ‘Article 216 of
the Penal Code does not apply to a department head, such as petitioner, by
virtue of Article VII, Sec. 11 paragraph 2 of the Constitution.

On July 9, 1959, appellant Hermogenes Concepcion, Jr., fiscal for the City of
Manila, filed an opposition to the motion to quash aforementioned, showing
clearly that appellee’s interest as a stockholder of the Avegon, Inc., in whose
business and transactions he intervened in his official capacity as Secretary of
Finance and as presiding officer of the Monetary Board of the Central Bank by
granting said corporation tax exemptions and dollar allocations, and otherwise
acting favorably upon its other requests and petitions, was such an interest
that Article 216 of the Revised Penal Code prohibits a public officer to have in
a ‘contrator u operacion’; that appellee’s allegation that he ‘had no interest
or shareholding whatsoever in the corporation Avegon, Inc., as of the material
dates when said corporation was granted tax exemption privileges in the
Department of Finance and other requests by the Monetary Board of the Central
Bank was purely a matter of evidence which appellee could probably avail of as a
defense in the trial of the case, and that Article 216 of the Revised Penal Code
is still a good law, effective and applicable to department heads, like
appellee, because there is no inconsistency between said article of the penal
code snd the provisions of Article VII, Section 11, paragraph 2 of the
Philippine Constitution.

On July 17, 1959 appellant Judge issued an order denying the motion to quash,
which reads thus:

“The last motion to quash filed by the defense raises fundamental question’s
which, in the opinion of the Court, cannot be decided properly intelligently and
adequately without presentation of evidence.

“The Court likewise reserves its decision as to whether the provisions of
Art. 216 of the Revised penal Code for the violation of which the herein accused
is prosecuted, are repugnant to and inconsistent with the provisions of Art.
VII, Section 11, paragraph 2 of the Constitution of the Philippines.

Wherefore, the motion to quash is hereby denied, and the arraignment of the
accused is set on July 25, 1959, at 10:00 A.M.

So ordered.”

“Appellee filed a motion for reconsideration of said order, which motion was
denied by appellant Judge in an order of August 1, 1959.

On August 12, 1959, appellee filed with the Court of Appeals, a petition for
prohibition and/or mandamus, with prayer for the issuance of a writ of
preliminary injunction. In support of tins petition for mandamus, it is alleged
that respondent Judge acted without or in excess of his jurisdiction or with
grave abuse of discretion in issuing the two orders complained of and in not
having quashed the information on the ground that the provisions of Article 216
of the Revised Penal Code do not apply and were rendered inoperative as to a
department head, such a petitioner, by virtue of Article VII, Section 11,
paragraph 2 of the Philippine Constitution. And as regard the petition for
mandamus, it is alleged that respondent Judge neglected the performance of a
duty specifically enjoined on him by his office under Section 6, Rule 113 of the
Rules of Court, in not resolving herein appellee’s motion to quash of June 15,
1959 and in deferring in effect until after trial on the merits his resolution
on the fundamental questions raised therein as per the order of July 17, 1959,
reaffirmed by him in the order of August 1, 1959.

In their answer of September 2, 1959, appellants alleged that, contrary to
the appellee’s charge, appellant Judge acted within his jurisdiction and without
grave abuse of discretion in denying the appellee’s motion to quash, for the
reason that in the mind of appellant Judge, the motion raised fundamental
questions which could not be resolved properly, intelligently, and adequately
without presentation of evidence, especially that regarding the alleged implied
repeal of Article 216 of the penal code by the Constitution insofar as
department heads, chiefs of bureaus or offices and their assistants are
concerned, the same not being indubitable considering the proposition advanced
by Hermogenes Concepcion, Jr. that no consistency exists between the penal
article and the constitutional provision and therefore the latter could not have
impliedly repealed the former. Moreover, appellee has some other adequate remedy
in law from the disputed order denying his motion to quash, and that is appeal
in due time therefrom, following the ruling of this Honorable Court in several
cases, the last of which is Eulogio Mill vs. Hon. Nicasio Yatco, 101
Phil., 599., (54 O.. Gaz, No. 10, p. 3232)

On January 23, 1960, the Court of Appeals rendered, a decision issuing the
writ of prohibition prayed for, annulling the orders complained of and directing
respondents to desist from further proceeding in Criminal Case No. 47152 of
respondent Court on the ground that Article 216 of the Revised Penal Code had
been rendered inoperative by Article VII, Section 11, paragraph 2 of the
Philippine Constitution as regard heads of departments, and chiefs of bureaus or
offices and their assistants.

Disagreeing with the above ruling of the Court of Appeals, herein petitioners
have elevated the same to this Court contending that the Court of Appeals erred—

It is the view of this Court that a resolution of the third assignment of
error should be accorded priority inasmuch as a finding that the writ should not
have been issued in the first place would render a ruling on the first two
assigned errors premature at this stage of the proceeding.

We declare the Court of Appeals in error when it issued the writ of
prohibition here complained of.

One of the more profound doctrines of procedural jurisprudence is that which
allows the issuance of prohibitive writs only upon a showing of lack or excess
of jurisdiction or of authority, or, grave abuse of discretion on the part of an
inferior tribunal, corporation, board or person. (Rule 67, Sec. 2, Rules of
Court; Aglipay vs. Ruiz, 64 Phil. 201; Reyes et al. vs. The Hon.
Guillermo Romero et al., G. R. No. L-14917, May 31, 1961; 42 Am. Jurs. Sec. 5,
pp. 140-141; Livingston vs. Wyatt, 186 N.Y. 383). The reason for the
aforestated rule is not difficult to discern. In the exercise of discretion,
inferior tribunals, corporations, boards or persons should be allowed some
latitude of independence, a freedom of movement and judgment consistent with the
trust reposed on them by law or regulation to mediate over specific disputes. If
every act or ruling of them were to be subjected to the scrutiny and
re-examination of a superior tribunal, and, in every instance must be reconciled
with the views of the reviewing body, then the administration of justice will
greatly be hampered. The discretion of lower tribunals will then bet but a work,
not a reality .

Thus, We have always adhered to the standard that for grave abuse of
discretion to prosper as a ground for prohibition, it must be first demonstrated
that there was such a capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction (Abad Santos vs. Province of Tarlac,
67 Phil. 480; Bibby de Padilla vs. Horrilleno, 60 Phil. 511; Alafriz
vs. Nable, 72 Phil. 278). Similarly, We have ruled that there is “excess
of jurisdiction” where the court has jurisdiction but has transcended the same
or acted without any statutory authority (Leung Ben vs. O’Brien, 38 Phil.
182; Salvador Campos y Cia vs. Del Rosario, 41 Phil. 45). In other words,
prohibition ought he issued only after the reviewing tribunal shall have
convinced itself that the lower court has exercised its power “in an arbitrary
or despotic manner by reason of passion or personal hostility, and it must be so
patent and gross as to amount to an evasion or to a virtual refusal to perform
the duty enjoined or to act in contemplation of law (Tavera-Luna, Inc.
vs. Nable, 67 Phil. 340).

Considering the above discussion, We cannot concur with the conclusion of the
Court of Appeals regarding the conduct of the herein respondent judge. A cursory
reading of the Order complained of shows how, on the contrary, he had cautioned
himself against acting arbitrarily, despotically or whimsically. The same Order
precisely reflects a deep sense of justice and mature exercise of discretion on
the part of the respondent Judge when it recognized that the motion to quash
filed by the defendant “raises fundamental questions which, * * * * cannot be
decided properly, intelligently and adequately without presentation of
evidence.”

Furthermore, there is no exigency in this instant proceeding which would
justify a disregard for the time-honored rule that prohibition is granted only
where no other remedy is available which is sufficient to afford redress (III
Moran, Comments on the Rules of Court, p. 174). For this particular case, We
hold the view that the observation of the City Fiscal that “the obvious and only
remedy available to the appellee is appeal in due time from the decision that
the appellant Court might render in the case” is valid and well taken. And, as
the herein respondent has another and complete remedy at law either by appeal or
otherwise. We need proceed no further to justify the lifting of the writ issued
by the Court of Appeals.

As originally intimated, a ruling on the first two assignments of error would
be premature at this stage. Wherefore, the writ of prohibition issued by the
Court of Appeals is hereby lifted and this case is remanded to the lower court
for a continuance of the suspended proceedings. Costs against appellee.

Bengzon, C. J. Padilla, Bautista Angelo, Labrador, Reyes, J.B.L.,
Barrera, and Dizon, JJ., concur.