THE HONORABLE PEDRO CONCEPCION, JUDGE OF THE COURT OF FIRST INSTANCE OF THE NINTH JUDICIAL DISTRICT, PETITIONER, VS. THE HONORABLE QUINTIN PAREDES, SECRETARY OF JUSTICE, RESPOND…

Early in March, 1921, all the judges of first
instance were called to Manila by the Secretary of Justice in order
that they might participate in a “drawing of lots” for judicial
districts. Prominent members of the Philippine Bar immediately united
to halt the holding of the judicial lottery, and to challenge the
validity of Act No. 2941, “An Act to amend and repeal certain
provisions relative to the judiciary, etc.” The petitioner in the test
case was Honorable Pedro Concepcion, judge of First Instance of Manila,
and the respondent was Honorable Quintin Paredes, Secretary of Justice.
A preliminary injunction pendente lite was issued by the
writer of this opinion, restraining the said Secretary of Justice from
holding, or carrying into effect, the drawing of lots by the judges of
the Courts of First Instance. The Secretary of Justice and the
Attorney-General, assisted by learned attorneys-at-law, vigorously
resisted the attempt to nullify the law in question, or any part
thereof. Two extended public hearings have been held, and ten briefs
have been filed. The court is fully informed on the points at issue.

The argument has covered a wide range. A number of
constitutional objections of paramount importance to the validity of
the entire law and to parts of it have been advanced and have been
supported by ingenious and eloquent pleas. Without, at this time,
expressing any opinion on the correctness of these contentions, our
view of the case permits us to bring it into narrow compass and to
render a decision on a single question on which we have a well-defined
opinion.

The petitioner in this case, as stated, is a judge of first
instance of the city of Manila. According to the allegations of the
complaint, he is primarily interested in securing an order which will
prohibit the holding of the judicial lottery and in having the
provision of law on which the lottery rests declared unconstitutional.
If this court should hold the second paragraph of section 148 of the
Administrative Code, as amended by Act No. 2941, of no effect, the
petitioner will have obtained from his cause of action all that he
could reasonably expect.

The second paragraph of section 148 of the Administrative Code, as superseded by Act No. 2941, section 1, reads as follows:

“Unless otherwise provided, on March fifteenth,
nineteen hundred and twenty-one, and every five years thereafter, the
judges of first instance with the same salaries shall exchange judicial
districts, and the same shall be done by the auxiliary judges as to the
respective groups of judicial districts in which they shall serve
during the ensuing five-year period. The exchange of districts or
groups of judicial districts shall be determined by lot between the
judges affected, observing the following rule, which shall be
mandatory: no judge shall continue to serve in the district or group in
which he has been serving during the last five years.”

Is the paragraph just quoted valid?

The various Acts
of the Congress of the United States which have been formally and
expressly extended to the Philippines, especially the Act of Congress
of August 29, 1916, and the Acts of the Philippine Commission and
Legislature which United States statutes have changed to organic laws,
constitute the major portion of the so-called Constitution of the
Philippine Islands. These Acts, defining, prescribing, and limiting the
powers of the Government of the Philippine Islands, are the measure of
governmental powers in the Philippines. It is beyond the power of any
branch of the Government of the Philippine Islands to exercise its
functions in any other way than that prescribed by the organic law or
by local laws which conform to the organic law.

An Act of the Philippine Legislature which has not been expressly
disapproved by Congress is valid unless the subject-matter has been
covered by Congressional legislation, or its enactment forbidden by
some provision of the organic law. In the exact language of the Organic
Act, the Act of Congress of August 29, 1916, section 8, “General
legislative power, except as otherwise herein provided, is hereby
granted the Philippine Legislature authorized by this Act.” Our
specific inquiry, then, is, whether the field has been entered by( the
Congress of the United States to such an extent as to exclude the
Philippine Legislature therefrom, or, in other words, whether it has
been “otherwise herein provided” by the Congress of the United States.

The Organic Act vests supreme executive power in the
Governor-General of the Philippine Islands. Authority to appoint and
commission officers is conferred upon him. (Sec. 21.) The same
provision of law gives to the Philippine Senate authority to confirm or
reject appointments made by the Governor-General. The law specifically
prescribes that “* * * The judges of the Courts of First Instance shall
be appointed by the Governor-General, by and with the advice and
consent of the Philippine Senate: * * *” (Sec. 26.)

Appointment to office is intrinsically an executive act involving the exercise of discretion. (Keim vs.
U. S. [1900], 177 U. S., 290.) Likewise, the action of the Philippine
Senate, in its consideration of the nominations of the
Governor-General, requires the exercise of its best judgment.

When, in pursuance of the power vested in the Governor-General and
the Philippine Senate, judges of first instance are selected for
positions on the bench, the appointments so made are for specific
offices. Judges of first instance are not appointed judges of first
instance of the Philippine Islands but are appointed judges of the
Courts of First Instance of the respective Judicial Districts of the
Philippine Islands. They hold these positions of judges of first
instance of definite districts until they either resign, reach the age
of retirement, or are removed through impeachment proceedings. The
intention of the law is to recognize separate and distinct judicial
offices. (Borromeo vs. Mariano [1921], 41 Phil., 343; Act No.
2347 in force when Organic Act enacted; Administrative Code of 1917,
sees. 128, 146, 153, 154, etc.; Act No. 2941.)

It will at once be noticed that we have just announced basic
propositions so firmly intrenched in law, precedents, and common sense,
as to be unquestioned. Merely to state these axiomatic principles would
suffice to demonstrate the invalidity of the law. But, possibly,
further explanation is required so that no misapprehension as to the
reasons for our position may exist.

In the exercise. of the discretionary power which the Congress of
the United States saw fit to confer upon them, the Governor-General,
with the assent of the Philippine Senate, appointed Pedro Concepcion
judge of first instance of a definite judicial district. In his
official oath of office, Judge Concepcion swore to “faithfully and
impartially discharge and perform all the duties incumbent upon me as
Judge, Ninth Judicial District, Manila, according to the best of my
ability and understanding, agreeably to the laws of the Philippine
Islands.” Pedro Concepcion, as such judge of First Instance for the
city of Manila, had jurisdiction only in the judicial district
comprehending the metropolis. But, if the judicial lottery had been
held, as planned, on March 15, 1921, Pedro Concepcion would have been
removed from Manila and would have had to proceed to another district.
Having determined by lot to which district he would be assigned, either
one of two contingencies must happen: either Pedro Concepcion, judge of
First Instance of the city of Manila by valid appointment of the
Governor-General, by and with the advice and consent of the Philippine
Senate, would go to another district than that to which he was
appointed, pursuant to the certification of the Secretary of Justice,
or he would go to the new district pursuant to a new appointment by the
Governor-General, by and with the advice and consent of the Philippine
Senate. Following the first horn of the dilemma would result in a
violation of the law, for there can be no valid appointment to an
office so long as the appointing power, in this instance the
Governor-General and the Philippine Senate, and not the Secretary of
Justice, is not exercised. And the second horn of the dilemma would
reach the same result, for instead of an exercise of judgment by the
Governor-General and the Philippine Senate, they would be required to
perform merely a ministerial act and to register approval of an
appointment determined by chance.

That the latter hypothesis is the more reasonable one, and that it
was in the legislative mind to require a complete cessation of duties
in the various judicial districts of the Philippine Islands every five
years and to have new appointments made, is shown by the phraseology of
Act No. 2941 and by a provision in its title. The law just mentioned
speaks of the “new office” and of the districts “for which he (the
judge) is commissioned.” One clause of the title reads: “Providing that
the judges or auxiliary judges of first instance who have served five
years in their district or group, as the case may be, may not be reappointed
to the same district or group.” “New office,” “commissioned,” and
“reappointed” are certainly unfortunate expressions if mere temporary
assignments, or transfers, or interchange of positions were intended.
On the contrary, there seems to have been contemplated acts in the
nature of indirect removals which would conceivably be in derogation of
the powers conferred by the fundamental law on the Supreme Court and
the Governor-General, and selection by chance for new districts to
which the judges have never been appointed.

The law before us would require a drawing of lots for judicial
positions, while the organic law would require selection for judicial
positions by the Governor-General with the assent of the Philippine
Senate. Chance has been substituted for executive judgment. Appointment
by lot is not appointment by the Governor-General. Appointment by lot
is not appointment with the advice and consent of the Philippine
Senate. To leave the selection of a person for a given judicial office
to lot is not to appoint, but is to gamble with the office. To such a
method we cannot give the seal of our approval.

Copious citations of authorities have been made by counsel. None on
examination is found to be directly in point. Thus, the attorneys for
the respondent have found consolation in two decisions of this court;
namely, Conchada vs. Director of Prisons ([1915], 31 Phil., 94), and Chanco vs.
Imperial ([1916], 34 Phil., 329). The first case cited did no more than
to approve a law establishing a new division of judicial territory,
without altering the organization of the courts and without depriving
them of their jurisdiction.—And this, it may be remarked
parenthetically, is the view of the writer of the decision, now the
honored Chief Justice of this Court. The second case cited held valid a
provision of law which provided that every judge of the Court of First
Instance shall cease to be such on the completion of the sixty-fifth
year of his age. In the course of the opinion is found the following:
“* * * Prescribing the method of appointment does not involve
necessarily or even remotely the qualifications of the judge. It is
true that the power of appointment is closely connected with the
qualifications of the person to be appointed; but they are not so
closely connected that it may be said that when Congress enters one
field” (that is, of appointment), “it thereby excludes the Philippine
Legislature from the other ;” (that is, of prescribing or fixing the
qualifications of officers). “We believe that the two questions are so
separate, both by nature and by form, that the fact that Congress has
legislated with regard to the one does not thereby prohibit the
Philippine Legislature from legislating as to the other.”

An exhaustive search of the authorities reveals only one case which is even of persuasive authority, Commonwealth vs.
County Commissioners ([1813], 5 Binney’s Reports, 534). Here, the facts
were that the commissioners of Philadelphia County, being unable to
agree on the selection of a treasurer, it was agreed to draw cuts to
determine which of two candidates should be appointed, with the result
that one Liberty Browne was the winner. On the next day, two of the
commissioners, being ashamed of what had occurred, proceeded to a new
appointment, with the result that Daniel Groves was selected to be
treasurer. Mandamus was asked to require the commissioners to grant to
Liberty Browne a certificate of appointment to the office of treasurer,
and this was refused, the court being of the opinion that “this is an
extremely clear case. It is at the same time a very important one.” It
was further said: “We should be sorry if the public supposed we could
have any doubt upon the subject. The law intended that the appointment
of county treasurer should be made by the judgment of the
commissioners, and it has been made by chance; * * * We therefore
approve of the commissioners who reflected, and repented, and proceeded
to a new appointment.” So is it our opinion that this is an extremely
clear case. So, also, would we be sorry if any one supposed that we
could have any doubt upon the subject.

It is not within the power of the Philippine Legislature to enact
laws which either expressly or impliedly diminish the authority
conferred by an Act of Congress on the Chief Executive and a branch of
the Legislature. Deliberately considered solely as a question of
constitutional law, and putting to one side all irrelevant questions of
expediency and of motive, we conclude that the power of appointment and
confirmation vested by the Organic Act in the Governor-General and the
Philippine Senate is usurped by a lottery of judicial offices every
five years. An independent and self-respecting judiciary must continue
to exist in the Philippines. The orderly course of constitutional
government must be maintained.

It is our holding that the second paragraph of section 148 of the
Administrative Code, as superseded by Act No. 2941, is in violation of
the provisions of the Organic Act and, consequently, invalid.

The preliminary injunction heretofore issued shall be made permanent. No costs shall be assessed. So ordered.

Araullo, C. J., Johnson, Ostrand, Johns, and Romualdez, JJ., concur.

Street, and Villamor, JJ., reserve their votes.

---

CONCURRING

AVANCENA, J.,

I concur in the result. My vote is limited to that part of the
decision whereby Act No. 2941, paragraph 2, as applied to the case of
Honorable Pedro Concepcion, formerly appointed judge of the Court of
First Instance for the Ninth Judicial District, is held invalid in so
far as its application would make Honorable Pedro Concepcion a judge of
another district, without having been appointed by the
Governor-General, by and with the advice and consent of the Senate, or
without this appointing power having any discretion to act on the
appointment should they appoint him and consent to his appointment in
accordance with the result of the drawing of lots.