SEGUNDA SANTIAGO AND VALERIO FLORES, PLAINTIFFS AND APPELLANTS, VS. PABLO VALENZUELA AND MOISES PARDO, PROVINCIAL SHERIFFS OF CAMARINES SUR, DEFENDANTS AND APPELLEES.

Defendants and appellees filed in the Court of First Instance of Camarines
Sur a motion to dismiss the complaint of the plaintiffs-appellants on the
ground, among others, that the plaintiffs’ cause of action is barred by a prior
judgment of the Justice of the Peace of Minalabac in another case between the
same parties and for the same cause.

The Court, considering the allegations in the complaint, wherein the said
judgment of the Justice of the Peace of Minalabac is quoted and alleged to have
been fraudulently obtained, and the answer of the defendants, dismissed the
complaint on the ground “that the allegation that the said judgment has been
fraudulently obtained is unfounded and without merits, as shown by cursory
reading of the text thereof,” and therefore the plaintiff’s cause of action is
barred by said prior judgment of the Justice of the Peace, or res
judicata.

The attorney for the plaintiffs received notice of the order dismissing the
complaint on April 2, 1946, according to the registry return card attached to
the record; and on May 3, 1946, the appellants filed a motion for new trial on
the ground that “the evidence was insufficient to justify the order dismissing
the complaint and that it is openly contrary to law.”

The lower court, in its order of May 11, denied the motion for new trial for
the reason that it did not comply with the requirements of Section 2, Rule 37,
and a copy of said order was sent on May 14 by ordinary mail to the attorney for
the appellants. On May 18 the plaintiffs-appellants filed the notice of appeal
and record on appeal, and a petition to appeal as pauper which was granted, and
the Court, in its order of May 28, approved the record on appeal saying, among
others, that “The record on appeal having been filed within the period fixed by
law, it is thereby approved.”

The defendants-appellees have not objected to the approval of the record on
appeal on May 18 by the trial court on the ground that the appeal has not been
taken and perfected on time, and have not filed with the appellate court a
motion to dismiss the appeal on said ground until after the appellants had
presented their brief. And the question for us to resolve now is that raised in
the appellees’ motion to dismiss the appellants’ appeal.

The right to appeal is not a natural right, but statutory. The appellate
jurisdiction of the courts are conferred by law, and may be exercised only in
the manner and in accordance with the provisions thereof. But although appellate
courts are vested with appellate jurisdiction to affirm, modify or reverse the
judgments of the inferior courts, they can not exercise it in a particular case
unless and until each and every one of the steps or requirements prescribed by
law for the perfection of the appeal have been complied with. If a party does
not take or perfect his appeal within the time prescribed by law, the appellate
court can not acquire appellate jurisdiction, and for that reason the compliance
with said requirements is jurisdictional, according to this Court in the cases
of Layda vs. Legazpi (39 Phil., 83) and Pampolina and Vistal vs.
Suiza and Osuna (12 Phil., 99). Unlike the original jurisdiction over a
particular case which is acquired by the filing of a complaint that alleges a
cause of action which is within the power of the court to try and decide, and by
the service of the summon upon, or voluntary appearance of, the defendant, the
appellate jurisdiction is acquired by the appellate court over the subject
matter and parties by the perfection of the appeal. By the perfection of the
appeal, the jurisdiction over the subject matter and the parties of the court
exercising original jurisdiction is transferred to the appellate court. Before
that the jurisdiction over the case remains in the trial court.

Section 13 of Rule 41, of the Rules of Court provides that “where the notice
of appeal, appeal bond, or record on appeal is filed but not within the period
of time herein provided, the appeal shall be dismissed.” This provision refers
evidently to a motion to dismiss the appeal or objection to the approval
thereof, filed in the Court of First Instance or the trial court. After the
appeal has been approved or allowed, and the record on appeal transmitted to the
appellate court, the law applicable is Section 1, Rule 52, which provides, among
others, that “an appeal may be dismissed by the Court of Appeals (or Supreme
Court under Section 1, Rule 58), on its own motion or on that of the appellee,
on the following grounds: (a) Failure to file, within the period
prescribed by these rules, the notice of appeal, appeal bond or record on
appeal. * * *”

Section 3, Rule 41, requires the filing with the trial court of a notice of
appeal, an appeal bond, and a record on appeal within the period of thirty days
from notice of order or judgment (deducting therefrom the time during which a
motion to set aside has been pending) for the perfection of the appeal. This
Court has liberally construed this provision in the light of that of Section 2,
Rule 1, and held, in the cases of Alvero vs. De la Rosa (76 Phil., 428);
Moya vs. Barton (76 Phil., 831); Lopez vs. Lopez (77 Phil., 133),
and Peralta vs. Solon (77 Phil., 610), that the court may extend the time
or allow the perfection of the appeal beyond the prescribed period if it be
satisfactorily shown that there is a justifiable reason, such as fraud,
accident, mistake or excusable negligence, or similar supervening casualty,
without fault of the appellant, which the court may deem sufficient reason for
relieving him from the consequences of his failure to comply strictly with the
law. In such case the appeal is deemed taken and perfected on time, and
the appellate court acquires appellate jurisdiction.

The reason why Section 1, Rule 52, uses the subjunctive “may”, and not the
imperative “shall” employed in Section 13 of Rule 41, is that if the appellee
had objected to the appeal or moved far the dismissal thereof on account of the
matter of time in the lower court, the motion to dismiss the appeal filed by the
appellee with the appellate court has the effect of an appeal from the order of
the trial court denying his motion, and the appellate court may deny the motion
to dismiss ratifying thereby the order of the trial court, or grant said motion,
reversing in effect the action taken by the court below on the matter, if it
appears that the appeal has not been perfected within the prescribed time.

If no objection or motion to dismiss the appeal has been filed with the court
below, the appellate court may dismiss the appeal if the record shows that the
appeal has not been taken and perfected on time, for although parties are
obliged to watch the dockets of the courts and inform themselves of the entry of
decrees and .orders, nevertheless circumstances may arise which, if they do not
absolve the parties from that duty, operate to relieve the appellee of the
consequences of such failure; or it may deny the motion to dismiss the appeal if
it appears from the record that the approval of the appeal by the trial court
after the expiration of the prescribed time was for sufficient reason or cause,
or that had the appellee objected to it in the trial court the appellant might
have satisfactorily shown that there was justifiable reason for relieving the
appellant from the consequences of his failure to perfect the appeal on
time.

And if the motion to dismiss the appeal on the ground under consideration is
filed for the first time with the appellate court after the appellant had paid
the docketing fee and the cost of printing the record on appeal, and specially
after he had filed his brief, the appellate court should deny the motion, for
the appellee may be considered in estoppel or estopped from filing said motion,
because he would have, by his silence or failure to object in time, led the
appellant to believe that the appellee was also satisfied that the delay, if
any, was due to justifiable cause, and to incur those necessary expenses. This
is not a new theory; it has already been adopted by this Supreme Court in the
case of Luengo and Martinez vs. Herrero (17 Phil., 29), as well as in
Slade Perkins vs. Perkins (57 Phil., 223-225)^[1], in which this Court said:

“Appellant claims that appellee is estopped from any right to the motion to
dismiss, by allowing the bill of exceptions to be approved, by allowing the
appellant to go to the expense of printing the bill of exceptions and the
expense and trouble of preparing and printing his brief, which was filed on
August 31, 1931, and on account of not raising the question as to the right to
appeal until October 27, 1931, when appellee’s brief was filed.

“Appellant relies on 3 Corpus Juris, p. 689, where it is said:

” ‘Waiver of Objections to Right of Appeal.—The right to object to the
taking of an appeal or the issuance of a writ of error may be waived by appellee
or defendant in error whenever the objection is founded upon some act or
omission on the part of appellant or plaintiff in error, which may be pleaded by
his opponent as an estoppel to the right of review. This waiver may arise from
express stipulation, or it may be implied from some act on the part of appellee
or defendant in error, such as joining issue on the appeal or writ of error, or
from some other act showing acquiescence or evincing an intention to treat the
appeal or writ of error as valid.’ (Citing numerous decisions.)

“Thus, in Luengo & Martinez vs. Herrero (17 Phil., 29), wherein
the appellees made a motion in their brief, to dismiss the appeal, this court
ruled that the motion came too late, saying:

” ‘These questions were presented to this court for the first time on the
hearing of the case upon its merits. They should have been raised and determined
by motion before the case was called for hearing. Before the hearing of the case
upon its merits all preliminary questions should be disposed of, and when such
questions as these are raised for the first time upon the hearing of the case on
its merits they come too late.’

“We believe this point of appellant well taken, and will therefore consider
the appeal on its merits.”

In view of the foregoing, the appellees’ motion to dismiss the appellants’
appeal is denied, and the appellees are allowed to file their brief within the
prescribed period from notice of this resolution. So ordered.

Moran, C.J.,
Pablo, Briones, Padilla, and Tuason, JJ., concur.

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^[1] The Court of Appeals has also applied
it in the case of Apilado vs. Apilado in which that court held that “The
presentation of a motion to dismiss the appeal for the first time in the brief
of the appellee, after the bill of exceptions and the brief for appellants have
been printed, based on the alleged presentation of the exception and notice of
intention to appeal one or two days after the prescribed period, is too late and
party will be deemed to have abandoned the same and to be estopped from raising
that question.” (Apilado vs. Apilado, Appellate Court Reports, Vol. I, p.
76.)

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PERFECTO, J.:

Our decision is to support the majority resolution in this case.

We cannot but recognize the force behind the vigorous dissenting opinion of
Mr. Justice Bengzon, but we feel that the conclusions arrived at by the majority
of this Court appears to better serve the interests of substantial justice.

The present controversy in this case seems to hinge on a conflict of legal
ideologies. While there are strong technical grounds in support of the minority
position, the majority’s stand is based on the idea that in conflicts between
legal technicalities and substantial justice, the latter should always have the
upper hand.

The latter proposition conforms with our legal philosophy which, although
slowly, is gaining ground everyday in the actuations of this Supreme
Court.

In the case of Tacayanga vs. Jacob (G. R. No. L-1197), there
were reasons to dismiss the appeal as strong, if not stronger, than those in the
present case. Adopting a liberal attitude, invoking strong reasons of equity,
this Court, by unanimous resolution decided on March 12, 1947, not only to set
aside the resolution dismissing the appeal, but to grant the appellant further
opportunity to proceed with his appeal in this Court. Many more resolutions
could be cited to show that this Court has been adopting a more liberal attitude
in the construction and application of the time provisions of the rules,
although the majority of the attorneys cannot avail themselves of the
opportunity to invoke said resolutions, because they remain unpublished in the
Official Gazette.

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PARAS, J.:

I dissent because, as stated by Mr. Justice
Bengzon, the order of the Court of First Instance dismissing the complaint has
become final. Besides, said order is without prejudice. The Court expressly
reserved the right of the plaintiffs to raise the question of ownership in a
land registration case which said party contemplates to file or has already
filed in same Court.

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BENGZON, J.:

I have smothered more than once a prankish itch to dissent even from minor
rulings or incidental issues, or “to bring coal to Newcastle” with concurring
opinions, that, contributing nothing substantial to the court’s deliverance will
only serve to increase the bulk of the already bulky volumes of reported
decisions. Vanity (I suspect) urged me to have my say, if only to assert
individuality and independence of criterion. But those times I yielded to the
sober second thought that, generally, the more the eyes, the clearer the
view.

There are occasions though, when keeping one’s peace may border on
dereliction of duty. This is one of them. With all due respect for the majority
opinion, I must register a dissenting vote.

It is admitted that the appeal was perfected out of time. It should therefore
be dismissed. (Lim vs. Singian and Soler, 37 Phil., 817; Layda vs.
Legazpi, 39 Phil., 83; Pampolina and Vistal vs. Suiza and Osuna, 42
Phil., 99.) Adherence to precedent, or stare decisis is not new in this
jurisdiction. (Zarate vs. Director of Lands, 39 Phil., 747; Lichauco
vs. Tan Pho, 51 Phil., 862.)

Besides overruling three previous decisions of this Court squarely on the
point, the majority opinion involves three assumptions which, sorry to say, I
can not share: (a) appellate jurisdiction may be conferred by the consent
of the parties; (b) a person may be estopped by facts not proven to be
within his knowledge; and (c) the appellee has the obligation to see to
it that appellant does not waste his substance in prosecuting a tardy
appeal.

In the Layda, Pampolina and Lim cases, after both parties had filed their
briefs, we dismissed the appeal, because it had been submitted out of time. In
the Layda litigation the appellee did not even raise the question; but we
said:

“Upon an examination of the record, it was discovered that the decision of
the lower court had become final before the appeal had been perfected. That
being true, this court acquired no jurisdiction by virtue of the appeal;
and not having jurisdiction to consider the case upon its merits, it must be
dismissed.

“Appellate courts have a right to examine the record for the purpose of
determining whether they have jurisdiction or not, even though that question
has not been raised. Jurisdiction of appellate courts is not conferred by
consent of the parties. The right to appeal is statutory.

“Judgments in ordinary civil actions become final and may be executed the
moment the time for perfecting an appeal has elapsed. If the appellant
allows that time to elapse, his right to an appeal is lost. A failure to perfect
the appeal within the time prescribed is jurisdictional and the
certification of a bill of exceptions thereafter cannot restore the jurisdiction
which is lost.” (Italics ours.)

We reiterated the same doctrine in Pampolina and Vistal vs. Suiza and
Osuna, supra. In Lim vs. Singian and Soler, supra, through
Mr. Justice Fisher, we explained at length why the appellate court acquires
no jurisdiction when the appeal is untimely; i. e., because
the judgment of the lower court had become executory before the
interposition of the appeal. Those three decisions, so far as I know, have not
been directly overruled. None, necessarily incompatible with the same, can be
cited.

Moreover,—and this ought to be conclusive—this Court with its post-war
composition, repeated without a single dissent (March, 1946) the same
jurisdictional nature of the period for perfecting the appeal—which was the
ratio decidendi of the Layda and kindred decisions.

“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., 744.)” (Alvero vs. De la
Rosa, 76 Phil., 428, 433.)

Luengo & Martinez vs. Herrero (17 Phil., 29) (invoked by the
majority) was not a case wherein the appeal had been perfected out of
time. Slade Perkins vs. Perkins (57 Phil., 223), (also cited by the
majority) did not involve the question whether the appeal had been
seasonable. The issue therein, which the Court refused to entertain, because of
estoppel, was whether the disputed order was not appealable because
interlocutory—a point entirely different from the timeliness of
the appeal. True, this Supreme Court cited therein with approval a passage from
Corpus Juris relating to “Waiver of objections to right of appeal”. But that
statement obviously referred to objections that were not based on jurisdictional
grounds, because the same volume of Corpus Juris in another part admits the
unwaivable nature of jurisdiction:

“As we have seen, where the appellate court has no jurisdiction under the
law, consent of parties cannot confer jurisdiction, and therefore the want of
jurisdiction cannot be waived by the parties by appearance or otherwise, but
may be taken advantage of at any time.” (3 C. J., 371.)

“Since appellate tribunals derive their jurisdiction over any cause from the
law, no mere consent, agreement, or stipulation of the parties or waiver of
objection, can confer jurisdiction upon an appellate court where it has none
by law over the subject matter of the cause or appeal; and this rule applies * *
* where the time limited by law within which the appeal must be taken and
perfected has expired.” (3 C. J., 369, 370.) (Italics
ours.)

(a) The majority decision implies that the appellees by their consent
or inaction, may confer appellate jurisdiction upon this Court. When it
holds that appellees are estopped to question our jurisdiction to entertain the
appeal, it virtually says that the appellees, by their consent, may
confer upon this Court appellate jurisdiction. I must say that this flies in
the teeth of our previous pronouncements, (and American precedents), that
“jurisdiction of appellate courts is not conferred by consent of the parties”.
(Layda vs. Legazpi, supra; Pampolina and Vistal vs. Suiza
and Osuna, supra.) (See also Corpus Juris, supra.)

(b) The majority holds appellees in estoppel, because they failed to
raise the point before appellants had submitted their brief; yet it is not
demonstrated that appellees knew, before that time, that the appeal was
late. It is quite probable that, upon examining the records here to
prepare their brief, appellees came to know the dates through the
post-office return cards, and by simple computation reached their conclusion. It
may be conceded, that had they perused the records in the lower court,
the appellees could have ascertained the untimeliness of the appeal.
Nevertheless, let me ask, are they duty bound to make that investigation, and to
enlighten their opponents? Did not the latter know the facts? Are not the
appellees justified in assuming that appellants would be careful of their own
affairs, would try to appeal in due time, and would not waste money pursuing a
will-o’the-wisp? Could not the appellees rely upon the three previous
commitments of this Court—which appellants knew or ought to have known—holding
that if it is discovered here that the appeal was tardy it would be
dismissed? Furthermore, having received a copy of the trial court’s order of May
28, stating that “the record on appeal was filed within the period fixed by
law,” are appellees responsible for acting upon such finding—until the moment
they discovered it was wrong?

Let us not forget further that estoppel does not lie “where the party
invoking it had knowledge equal or superior to that possessed by his adversary.”
(31 C. J. S., 375.)

(c) The majority ruling would actually compel the victorious litigant,
for the benefit of the loser, to check up on the latter, scrutinize the return
cards to ascertain the dates of receipt of the court orders in relation to the
days of actual submission of papers to the court,—even make trips and spend
money—hurried trips, perhaps, to object on time to the approval of the record on
appeal, etc. The winning attorney may easily imagine the inconvenience and
expenditure, if not injustice, this ruling would entail. And yet, why should he
be charged with such obligations? Why should he watch so that his opponent will
make no mistake in the presentation of his appeal? Of course, a diligent
attorney, residing in the same place where the court sits, will find it
convenient and advantageous to scrutinize his adversary’s steps, block the
appeal and get execution at the earliest moment. But it often happens that the
lawyer in a Manila case resides outside of the city, for example in Iloilo. Are
we going to require this lawyer to come to Manila, when the adverse party moves
for new trial, to examine the post-office card in the expediente, and
note the day of receipt of the decision, for the purpose of counting the
thirty-day period? And if he comes, and discovers it was within that period—a
useless trip—do we again expect him to make another trip—maybe useless again—for
verification purposes, when the notice of appeal is filed, after denial of the
motion for new trial?

I might agree to the application of estoppel in a similar case if the
record on appeal, of which copy is furnished the adverse party, had shown by
concrete dates that the appeal was beyond the deadline. Estoppel in that
instance would not be premised on an obligation unfairly imposed on appellee, no
expense being required of him for the benefit of his adversary. Yet that is not
the situation here.

Withal, even if the appellees are estopped to raise the question, we are
not estopped, and according to the three decisions hereinbefore cited (Layda
et al.) we should dismiss the appeal.

Expounding their theory, the majority make these observations:

“* * * it may deny the motion to dismiss the appeal if it appears from the
record that the approval of the appeal by the trial court after expiration of
the prescribed time was for sufficient reason or cause, or that had the appellee
objected to it in the trial court the appellant might have satisfactorily shown
that there was justifiable reason for relieving the appellant from the
consequences of his failure to perfect the appeal on time.

“And if the motion to dismiss the appeal on the ground under consideration is
filed for the first time with the appellate court after the appellant had paid
the docketing fee and the cost of printing the record on appeal, and specially
after he had filed his brief, the appellate court should deny the motion, for
the appellee may be considered in estoppel or estopped from filing said motion,
because he would have, by his silence or failure to object in time, lead the
appellant to believe that the appellee was also satisfied that the delay, if
any, was due to justifiable cause, and to incur those necessary expenses. * *
*”

My remark is that the appellants themselves never submitted nor invoked “any
justifiable reason” for relieving them from the consequences of their failure to
perfect the appeal on time. Equitable estoppel, in my opinion, must be based on
actual facts, not on generalities nor suppositions.

I do not forget that under Rule 52, section 1, the appeal in this case “may”
be dismissed. But I remember that according to rules of interpretation “may”
often means “shall”,^[1] and in view of the
doctrine we have previously announced, sustaining the jurisdictional nature of
the time to appeal, there is no alternative but to say that “may” signifies
“shall”. To interpret the Rules as conferring appellate “jurisdiction” upon us
even if the appeal was untimely and the lower court’s decision has
become final, would be to ascribe to that body of procedural regulations a
scope that neither its framers nor the Constitution intended. The Rules of
procedure we are authorized to promulgate (under section 13, Article VIII of the
Constitution) should not embrace provisions apportioning jurisdiction to the
courts, because these are considered to be of substantive—not
procedural—nature.

Furthermore, if one who has answered the complaint and has gone to trial
without raising the question of jurisdiction of the subject-matter is not
estopped to raise it later, (Section 10, Rule 9), no reason exists why the same
estoppel will operate against herein appellees, who have not heretofore filed in
this forum any pleading renouncing that all-important issue.

Lastly conceding arguendo that the Court is now persuaded that the
rulings in the Layda and allied cases should be abandoned, and that the
principle of estoppel should henceforth govern through equity’s demands, I
respectfully submit that equity itself requires that the application of the new
theory should be deferred to other future litigations—not to herein
appellees whose act or omission occurred at a time when Layda vs. Legazpi
and others were controlling. My concrete proposition is: when a ruling of this
Court is overruled and a different view adopted, the new doctrine should not be
immediately applicable, should not be applied to parties who had relied on the
old doctrine and acted according to it, specially if it concerns procedure, as
in this instance. The revised principle should affect future litigants only.
Although not new to American jurisprudence, this aspect has not, so far as I
know, been explored in this jurisdiction.

The system of precedents or case law is here for good. Based on the maxim
stare decisis et non quieta movere (stand by the decisions and disturb
not what is settled), it is universally endorsed by American courts, specially
the Federal Supreme Court.

The theory implies no more than the courts’ duty to apply their previous
rulings to subsequent controversies involving the same issues. It should be the
foundation rock of the administration of justice, for if a ratio
decidendi was good in a litigation between A and B it should likewise be
good in another identical litigation between C and D, in the absence of
intervening statutory modifications.

But the principle has its limitations; for instance, it should not serve to
perpetuate error (15 C. J., 960; 21 C. J. S., 326), courts of last resort having
exercised, at times, the inherent power to overrule their decisions. (Douglass
vs. Pike County, 101 U. S., 677; Hertz vs. Woodman, 218 U. S.,
205.) Recent opinions bespeak a conservative attitude. As Mr. Justice Douglas
wrote for the Supreme Court of the United States:

“But beyond that is the problem of stare decisis. The construction
given Section 20 (of the Criminal Code) in the Classic Case (supra note
128, No. 11) formulated a rule of law which has become the basis of federal
enforcement in this important field. The rule adopted in that case was
formulated after mature consideration. It should be good for more than one day
only. We do not have a situation here comparable to Mahnich vs. Southern
S.S. Co., 321 U.S., 96; 88 Law. ed., 561; 64 Sup. Ct., 455 (1944)
(supra note 128, No. 19) where we overruled a decision demonstrated to be
a sport in the law and inconsistent with what preceded and what followed. The
Classic case was not the product of hasty action or inadvertence * * *. We add
only to the instability and uncertainty of the law if we revise the meaning of
Section 20 to meet the exigencies of each case coming before us.” (Screws
vs. United States, 325 U. S., 112.)

Nevertheless the reserved right to upset previous decisions is likewise
qualified by the proposition that such upsetting shall have prospective—not
retroactive—effect.

In Douglass vs. Pike County (101 U. S., 677) at p. 687, it was
declared: “The true rule (of stare decisis) is, to give a change of
judicial construction * * * the same effect in its operation on contracts” as to
“a legislative amendment, i. e., make it prospective, but not
retroactive.”

And in Great Northern R. Co. vs. Sunburst Oil & Ref. Co., 287 U.S., 358, the Supreme Court, through Mr. Justice Cardozo, said:

“A state in defining the limits of adherence to precedent may make a choice
for itself between the principle of forward operation and that of relation
backward. It may say that decisions of its highest court, though later
overruled, are law none the less for intermediate transactions. Indeed there are
cases intimating, too broadly (cf. Tidal Oil Co. vs. Flanagan, 263 U. S.,
444; 68 Law. ed., 382; 44 Sup. Ct., 197, supra), that it must give them
that effect; but never has doubt been expressed that it may so treat them if it
pleases, whenever injustice or hardship will thereby be averted. Gelpcke
vs. Dubuque, 1 Wall., 175; 17 Law. ed., 250; Douglass vs. Pike
County, 101 U. S., 677, 687; 25 Law. ed., 968, 971; Loeb vs. Columbia
Twp., 179 U. S., 472, 492; 45 Law. ed., 280, 290; 21 Sup. Ct., 174,
etc.”

This view is not unanimous, I know. However, inasmuch as one of the principal
arguments of the opposing school of thought is that it makes the overruling
decision a mere “declaratory judgment,” and since that objection is untenable in
this jurisdiction where declaratory relief is permitted (Rule 66), the view
herein advocated—future operation only—should all the more be acceptable to our
system of jurisprudence. More about this in the future, if I should happen to
agree to an overruling of previous decisions and the question should hinge on
its backward or forward application. For the present, enough to note some of the
abundant literature on the point.^[2]

HILADO, J.:

I concur in this dissent of Mr. Justice
Bengzon.

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^[1] Greb vs. Hansen (243 N. W.,
278); Van Dyke vs. School Dist. (86 Pac., 402); James vs. Dexter
(112 Ill., 489); and many other cases.

^[2] Moschzisker, Stare Decisis in
Courts of Last Resort, 39 Harvard Law Review, 409; Freeman, Retroactive
Operation of Decisions, 18, Col. Law Review, 230; Kocourek Retrospective
Decisions and Stare Decisis, 17 A. B. A. Journal, 180; Effect of
Overruled and Overruling Decisions on Intervening Decisions, 47 Harvard Law
Review, 1403; Retroactive Effect of an Overruling Decision, 42 Yale L. J., 779;
Retrospective Operation of Overruling Decisions, 35 Ill. Law Review, 121;
Precedent in Legal System, Mich. Law Review, Vol. 44, p. 955, et.
seq.