LEE YICK HON, PETITIONER AND APPELLEE, VS. THE INSULAR COLLECTOR OF CUSTOMS, DEFENDANT AND APPELLANT.

This is an appeal by the Insular Collector
of Customs from the action of the Court of First Instance of Manila in
imposing upon him a fine of P50 for an alleged contempt of court. The
circumstances connected with the incident which gave rise to the
proceeding are these:

It appears that on July 23, 1920, a petition for the writ of habeas corpus
was filed in the Court of First Instance of Manila by one Lee Yick Hon,
alleging he had lately arrived from China at the port of Manila with a
view to entering the Philippine Islands, but was prevented from so
doing by the Insular Collector of Customs, who was detaining him for
deportation. Upon the presentation of said petition, his Honor, Pedro
Concepcion, presiding in Sala IV of said court, cited the collector to appear and show cause in writing why the writ of habeas corpus
should not be issued as prayed. This citation was served at about 11 a.
m., at which hour arrangements had already been perfected for the
deportation of Lee Yick Hon on a boat scheduled to leave Manila for
Hongkong at noon on the same day; and either by oversight or design the
Insular Collector failed to countermand the order for his embarcation
on that boat. The result was that Lee Yick Hon was deported within two
or three hours after the Insular Collector had been served with the
citation to show cause in the habeas corpus proceeding. Thereupon contempt proceedings were instituted against the Insular Collector, with the result already stated.

We are of the opinion that the action of the lower court in
imposing fine on the appellant cannot be sustained; and the judgment
must accordingly be reversed.

The conditions under which a person can be punished for contempt
are precisely defined in sections 231 and 232 of the Code of Civil
Procedure; and unless the reprobated conduct legitimately falls under
those provisions, it cannot be punished as for contempt. The first of
these sections contemplates misbehavior in the presence of the court or
so near the court or judge as to obstruct the administration of
justice. With this situation we are not here, concerned, as the act
which constitutes the alleged contempt was committed away from the
presence of the court and if punishable at all, it falls under
subsection (1) of section 232, wherein it is declared that any person
may be punished as for contempt who is guilty of “disobedience of or
resistance to a lawful writ, process, order, judgment, or command of
the court or injunction granted by a court or judge.”

In this case before us, if it be asked what lawful writ, process,
order, judgment or command of the court or judge below was disobeyed or
resisted by the appellant, the answer must be: None whatever. The
citation that was served upon the appellant required him to appear ‘at
a stated time in the Court of First Instance of Manila and show cause
if any there might be, why the writ prayed for should not issue. That
citation was literally complied with when, on July 30, 1920, the
Attorney-General, on behalf of the Insular Collector, filed his answer,
wherein it was in effect stated that the case of Lee Yick Hon had been
regularly passed upon by the Special Hoard of Inquiry, and that it had
been found that he had entered the Philippine Islands in contravention
of the Immigration and Exclusion Acts, wherefore the Insular Collector
had ordered his deportation. That answer, so far as appears in this
case, has not been found to be false or insufficient; and the sole
ground relied upon to sustain the judgment finding the appellant guilty
of contempt is that by allowing Lee Yick Hon to be deported under the
conditions stated he has frustrated the possible issuance of the writ
of habeas corpus for which application had been made.

At this point attention should be directed to the fact that the
order to show cause, a copy of which was served on the Insular
Collector of Customs on July 23, 1920, is not the peremptory writ of habeas corpus,
unconditionally commanding the respondent to have the body of the
detained person before the court at a time and place therein specified.
The requisites of the peremptory writ of habeas corpus are
stated in section 533 of the Code of Civil Procedure; and appropriate
forms are supplied in section 534 of said Code and in section 82 of
General Orders, No. 58. The order served in the case before us was
merely a preliminary citation requiring the respondent to appear and
show cause why the peremptory writ should not be granted. The practice
of issuing a preliminary citation of this character, upon applications
for the writ of habeas corpus, has, as all legal
practitioners are aware, become common in our courts; and upon
considerations of practical convenience, the usage has much to commend
it, in cases where the necessity for the immediate issuance of the
peremptory writ is not manifest. Nevertheless in a case like that now
before us, it is necessary to take account of the difference between
the preliminary citation and the real writ of habeas corpus;
and when advertence is had to this point, and the actual terms of the
citation are considered, it is at once obvious that the appellant did
not put himself in contempt by allowing Lee Yick Hon to be deported.

Of course if the judge issuing the citation had had his attention
directed to the fact that the deportation of Lee Yick Hon was imminent,
and there had been any reason to fear that the Collector of Customs
might proceed with his deportation notwithstanding the service of the
bare citation, his Honor could have penned a few additional words,
adding to the citation an admonition to the effect that the petitioner
should not be deported until his application for the writ of habeas corpus should be heard. If a temporary restraining order of that kind had been issued, it would no doubt have been respected.

In proceedings against a person alleged to be guilty of contempt of
court, it is not to be forgotten that such proceedings are commonly
treated as criminal in their nature even when the acts complained of
are incidents of civil actions. For this reason the mode of procedure
and rules of evidence in contempt proceedings are assimilated as far as
practicable to those adapted to criminal prosecutions. (6 R. C. L., p.
530.) Moreover, it is well settled that a person cannot be held liable
for contempt in the violation of an injunction or in fact of any
judicial order unless the act which is forbidden or required to be done
is clearly and exactly defined, so as to leave no reasonable doubt or
uncertainty as to what specific act or thing is forbidden or required.
(U. S. vs. Atchison, etc., R. Co., 146 Fed., 176, 183.) A
party cannot be punished for contempt in failing to do something not
specified in the order. (13 C. J., 15.) In the case before us, the
deportation of the petitioner was not forbidden by any order of the
court, and hence that act cannot be considered as disobedience to the
court.

Upon principle the point is clear; and although no case exactly
identical with the present one has been called to our attention from
the decisions of American courts, something very similar is found in Ex parte
Lake (37 Tex. Orim. Rep., 656; 66 Am. St. Rep., 848). The facts
involved in that case were these: One Edwards had been charged with the
commission of a criminal offense in Oklahoma, but he fled to the State
of Texas; and upon requisition from the Governor of Oklahoma, a warrant
was issued by the Governor of Texas for his arrest in that State. Upon
his being arrested, application was made in his behalf before one of
the Texas courts for the writ of habeas corpus to secure his
release. During the period when the propriety of granting the writ was
under consideration in said court, one Lake, the legally appointed
extradition agent, acting under the authority of a proper warrant
issued by the Governor of Texas, obtained the custody of Edwards from
the sheriff who had him in charge and hurriedly departed with the
prisoner for Oklahoma. The result was that the proceedings upon the
application for the writ of habeas corpus were frustrated and
the writ was in fact never issued—as occurred in the case now before
us. The judge before whom the application for the writ of habeas corpus
was pending thereupon caused Lake to be arrested and fined him 50
dollars for the supposed contempt. It was held by the Texas Court of
Criminal Appeals that this action could not be sustained and the
judgment was reversed.

Among the reasons stated for this decision was the fact that the
alleged contemner had disobeyed no order issued by the judge, for there
was none of any character made in the case, “and there was no order,
decree, writ, or any other process in existence, forbidding him from
doing just what he did.” Speaking further of this aspect of the case,
the court said: “We have found no case authorizing punishment by
contempt for such conduct as is attributed to Lake, and we believe none
can be found. The authorities have been closely and exhaustively
examined, and the rule deducible therefrom is, that unless the court
has jurisdiction of the supposed contemner, or some order, decree, or
process has been resisted or disobeyed, the court has no jurisdiction
to punish for contempt. Jurisdiction over the party will not confer
power to punish for contempt unless some order, decree, or process has
been disobeyed or the party is guilty of some act of the nature of
malpractice in the case, or has disobeyed the reasonable rules of the
court.” {Ex parte Lake, supra.)

The considerations found in that decision are applicable to the
case now before us and corroborate the conclusion to be inevitably
drawn from our own provisions relative to contempt, namely, that the
deportation of Lee Yick Hon by the Insular Collector under the
circumstances stated was not a contempt of court.

Judgment is reversed and the defendant absolved, with costs de oficio. So ordered.

Mapa, C. J., and Villamor, J., concur.

MALCOLM, J., with whom concurs ARAULLO, J., dissenting:

I am in complete accord with the decision of Judge of First
Instance Concepcion finding Vicente Aldanese, Insular Collector of
Customs, guilty of contempt of court and sentencing him to pay a
nominal fine of F50. This action of the trial court was justified,
considering that the Collector of Customs deported a Chinese alien
claiming to be a member of the household of the Consul-General for
China, during the pendency of the habeas corpus proceedings,
in disregard of a judicial order, and to the great prejudice of the
rights of the alien. A brief narration of the facts of record will
serve to demonstrate the correctness of the foregoing statements.

The Chinaman Lee Yick Hon arrived at the port of Manila and asked
for admission into the Philippine Islands on the ground that he was the
cook of the Chinese Consul-General. He was refused admission by a Board
of Special Inquiry. The Insular Collector of Customs, in a decision
filed on July 22, 1920, affirmed the findings of the Board of Special
Inquiry and ordered that the alien be deported from the Philippine
Islands to China. Immediately on receipt of this order, counsel for the
alien filed in the Court of First Instance of Manila a petition for a
writ of habeas corpus in which, among other things, it was
alleged that the respondent Collector of Customs held the petitioner
for the purpose of deportation. Early on the morning of July 23, 1920,
the Honorable Pedro Concepcion, Judge of First Instance, issued an
order directed to the Collector of toms requiring his appearance before
the Judge of First Instance one week later to show cause why the writ
of habeas corpus prayed for should not issue. This order of
the court was served on the Insular Collector of Customs by Antonio de
la Cruz, deputy sheriff of the city of Manila, in company with a
representative of the counsel for the petitioner, at approximately
10.30 on the morning of “July 23. Mr. Aldanese was told “Que ese chino
se va a deportar y por eso la orden es esta.” (That that Chinaman will
be deported and therefore this is the order.) Nevertheless, on the same
afternoon at about 4 o’clock, the Chinese petitioner was placed on a
boat and deported to Hongkong.

It appears that when the Insular Collector of Customs received the
order of Judge Concepcion, he merely passed it on to Mr. Obieta of the
same office, with this notation: “Forward these papers with the case to
the Attorney-General.—V. A.” Mr. Obieta found the papers on his desk at
about 3 o’clock in the afternoon, and forwarded them to Mr. Sotelo, the
chief of the immigration division. Mr. Sotelo received the order on the
following morning, that is, subsequent to the deportation of the alien.
Apparently, the Insular Collector of Customs had no exact knowledge of
what had actually occurred, for on July 24, he signed a letter
requesting the Attorney-General to represent the interests of the
Government in the case. This the Attorney-General did by filing an
answer on July 30, 1920, or exactly one week after the Chinaman had
been sent out of the country.

These facts constitute, in my opinion, constructive contempt.
Paraphrasing the definitions of contempt, there has been a disregard
of, or disobedience to, the orders of a judicial body. An act has been
done not in the presence of the court but at a distance, which tends to
belittle, to obstruct, to interrupt, and to embarrass the
administration of justice. It matters not that Mr. Aldanese had no
malicious intention of refusing obedience to an order of the court, for
it is the action done which determines whether a contempt has been
committed. In the words of Chief Justice Taney, “As regards the
question whether a contempt has or has not been committed, it does not
depend on the intention of the party, but upon the act he has done. It
is a conclusion of law from the act; disobedience to the legitimate
authority of the court is, by law, a contempt, unless the party can
show sufficient cause to excuse it.” (Wartman vs. Wartman
[1853], 29 Fed. Cas. No. 17210.) Whether intentionally or
unintentionally, whether maliciously or negligently, the result is as
disastrous to the rights of the person who might possibly have been
granted admission to the Philippine Islands. Fines for contempt of
court at least have the merit of making customs officials more careful
in the performance of their duties. Faulty governmental routine should
not be permitted to defeat a writ as fundamental in nature as is habeas corpus.

It is said, however, by the majority, that for there to have been a
contempt of court, the order issued by the judge should not only have
been one requiring attendance to show cause why the writ should not
issue, but should further have contained a clause in the nature of a
preliminary injunction. There is no gainsaying that a negative always
makes an affirmative stronger. At the same time it is not usually
considered necessary for courts to explain their meaning by restating
it in an opposite manner. The order issued by Judge Concepcion was a
judicial one, a replica of hundreds of others, which should have been
respected by the respondent. Instead, the action of the respondent made
compliance impossible and served to defeat the petition for habeas corpus.
From the moment the order was received by the respondent, the person of
the petitioner was technically in the custody of the law, and when the
respondent interfered with such custody a contempt of court was
committed.

It is not desired by this opinion to criticize unduly the conduct
of the Insular Collector of Customs. It is only desired to uphold the
hands of the lower court in the legitimate performance of its
functions, and to make known that such orders must be respected.