CALTEX (PHILIPPINES), INC. PLAINTIFF-APPELLANT, VS. CUSTOMS ARRASTRE SERVICE, ET AL., DEFENDANTS-APPELLEES.

Had plaintiff-appellant Caltex (Philippines) Inc. been aware that
four days prior to the filing of its brief seeking a reversal of an order of
the lower court of March 9, 1966 dismissing its complaint against the Customs
Arrastre Service, the Bureau of Customs, and the Republic of the Philippines
for lost or undelivered cargo in the amount of P9,859.49 intended for it as consignee, more specifically on
December 19, 1966, this Court in Mobil Philippines Exploration, Inc. v. Customs
Arrastre Service^[1]
held that the doctrine of non-suability
of the government without its consent bars such an action, it would likely have
desisted from pursuing its appeal.  For
since then, a similar fate was visited on other litigants, the latest decision,
the forty-first, having been promulgated only the other month.^[2] The efforts of appellant to reverse
the order of dismissal are thus in vain. 
We affirm.  All that the lower
court did in sustaining the motion to dismiss of January 18, 1966 was to submit
to the binding force of a fundamental postulate in constitutional law.

The Mobil Philippines doctrine cannot be indicted for
unorthodoxy.  It represents a continuing
manifestation of our commitment, in this respect at least, to the Austinian or
positivist concept of law.  Under this
view, it can be created only by the state. 
It can flow from no other source. 
Since without law, there can be no legal right, the state itself is
immune from suit unless there be a manifestation of its will through the
appropriate mode conferring such a right to sue.  To so view the matter, according to Holmes,
is both “logical and practical.”^[3]

That there are practical, as distinguished from merely logical,
reasons in support of such a view should be apparent from the recognition of
the likelihood that the government would ever so often be haled into court
considering that engaged as if has
lately been in varied activities appropriate to a welfare state the probability
of private parties being adversely affected by action taken by it is not
remote.  A loss of property rights could
always be plausibly alleged.  A claim for
money could as easily be conjured.  Thus
the demands on the government’s time and energy could reach limits well-nigh
intolerable.  After all, it is an
admitted fact that our people display no hesitancy in going to court whenever
they feel aggrieved, even if the injury is more fancied than real.  Thus the functional or sociological approach
to law would seem to call for a similar conclusion.

It might be argued however that precisely because the government
is now committed to so many undertakings, it would be an injustice to those who
feel adversely the pinch of its actuations if they cannot vindicate whatever
legal rights they may have in court. 
Providence Washington Insurance Co. v. Republic^[4]
supplies the answer:  “At any rate,
in case of a money claim arising from contract, express or implied, which could
serve as a basis for civil action between private parties, such a consent has
been given by a statute enacted by the Philippine legislature, even before the
Constitution took effect and still applicable at present.  The procedure provided for in such a statute
was made more expeditious by a Commonwealth Act, enabling the party or entity,
who feels aggrieved by the final decision of the Auditor General required to decide
the claim within sixty days, having the right to go to this Court for final
adjudication.  It is worthy of note
likewise that in the pursuit of its activities affecting business, the
government has increasingly relied on private corporations possessing the power
to sue and
be sued.”

It could be correctly concluded then, to quote anew from the same
case:  “Thus the doctrine of
non-suability of the government without its consent, as it has operated in
practice, hardly lends itself to the charge that it could be the fruitful
parent of injustice, considering the vast and ever-widening scope of state
activities at present being undertaken. 
Whatever difficulties for private claimants may still exist, is, from an
objective appraisal of all factors, minimal. 
In the balancing of interests, so un­avoidable in the determination of
what principles must prevail if government is to satisfy the public weal, the
verdict must be, as it has been these so many years, for its continuing
recognition as a fundamental postulate of constitutional law.”

WHEREFORE, the order of dismissal of March 9, 1966 is
affirmed, with costs against plaintiff-appellant.

Concepcion, C.J., Reyes, Dizon, Makalintal, Zaldivar, Castro,
Teehankee, and Villamor, JJ., concur.

Barredo, J., no part.

^[1]
G.R. No. L-23129, Dec. 17, 1966, 18 SCRA 1120.

^[2]
Switzerland General Insurance Co. v. Republic of the Philippines, G.R.
No. L-27389, March 30, 1970.

^[3]
In the felicitous language of Holmes: 
“A sovereign is exempt from suit, not because of any formal
conception or obsolete theory, but on the logical and practical ground that
there can be no legal right as against the authority that makes the law on
which the right depends.” Kawananakoa v. Polyblank, 205 US 349
(1907).

^[4]
G.R. No. L-26386, Sept. 30, 1969, 29 SCRA
598.