G.R. No. 28275. January 10, 1928
BONIFACIO NICOLAS, PLAINTIFF, VS. SEVERINO ALBERTO, DEFENDANT.
MALCOLM, J.:
in this court to determine the respective rights of the plaintiff and the
defendant to the office of justice of the peace of Angat, Bulacan. The question
at issue is the legal right of the Governor-General to transfer a justice of the
peace of one municipality to another municipality, without the advice and
consent of the Philippine Senate.
The facts are stipulated. Bonifacio Nicolas, the plaintiff, on
February 9,1920, was appointed justice of the peace of Angat, Bulacan, by the
Governor-General, with the advice and consent of the Philippine Senate.
Plaintiff qualified for the office shortly thereafter. He exercised its
functions up to August 18, 1927, when he was forced to surrender possession to
defendant.
Severino Alberto, the defendant, on February 28, 1918, was
appointed justice of the peace of San Jose del Monte, Bulacan, by the
Governor-General, with the advice and consent of the Philippine Senate.
Defendant qualified for and exercised the functions of the office from the date
mentioned to August 19, 1927, when he received an order transferring him to the
office of justice of the peace of Angat, Bulacan. Since then, he has acted as
justice of the peace of the latter municipality.
It appears further that on April 1, 1927, an administrative
complaint was filed by the municipal president of Angat, Bulacan, against
plaintiff. The charges were duly investigated by the Judge of First Instance of
Bulacan. Judge Teodoro decided to dismiss the complaint with a public reprimand
so that the justice of the peace might “avoid hereafter giving cause for
suspicion regarding partisanship and favoring any stated political party in
Angat.” The municipal president of Angat and about three hundred sympathizers
appealed from this decision to the Governor-General. On receipt of the
communication, the Secretary to the Governor-General endorsed the papers to the
Secretary of Justice “with the information that the records of this office show
that the investigation was regular and in order and that the case is closed.
However, in view of the friction which exists, His Excellency, the
Governor-General believes it would be advisable to transfer this justice of the
peace to another municipality when opportunity arises.” Then on July 2,1927, the
Acting Governor-General, without the advice and consent of the Philippine
Senate, and purporting to act “Pursuant to the provisions of section 206 of the
Administrative Code, as amended by Act No. 2768, and upon recommendation of the
Honorable, the Secretary of Justice,” ordered the transfer of Bonifacio Nicolas
“from the position of justice of the peace of the municipality of Angat,
Province of Bulacan, to the same position in the municipality of San Jose del
Monte, same province.” As of equal date, the Acting Governor-General, likewise
without the confirmation of the Philippine Senate, transferred Severino Alberto,
justice of the peace of San Jose del Monte, to Angat.
Plaintiff protested against the transfer. He petitioned the
Governor-General twice to reconsider it. He has persistently refused to accept
designation to San Jose del Monte. On the other hand, the defendant signified
his willingness to accept the transfer to Angat and to assume the office of
justice of the peace there. Plaintiff only gave up possession of the position of
justice of the peace of Angat when peremptorily ordered to do so by the Judge of
First Instance of Bulacan. Even then, plaintiff protested against delivering his
office to the defendant. The Governor-General has denied the plaintiff’s
petitions for reconsideration.
The court is not concerned with the merits of the complaints
against Bonifacio Nicolas as justice of the peace of Angat, Bulacan. It is
sufficient for our purposes to know that the investigation of Bonifacio Nicolas
was regular; that the decision dismissed the charges with a reprimand; that the
case was considered closed; and that he was not removed from office. Likewise,
matters of expediency are out of place. The court should be mindful of no
consideration other than an earnest desire to give just application of the law
to the admitted facts.
The law provides that “One justice of the peace and one
auxiliary justice of the peace shall be appointed by the Governor-General, with
the advice and consent of the Philippine Senate for * * * each municipality, * *
* in the Philippine Islands * * *” (Administrative Code, sec. 203; Act No. 3107,
sec. 1). When a vacancy occurs in the office of any justice of the peace, except
in provincial capitals and first-class municipalities, the Judge of the Court of
First Instance of the district forwards to the Governor-General a list of names
of persons qualified to fill the vacancy. Thereupon the “Governor-General, with
the advice and consent of the Philippine Senate, shall make the respective
appointments from said list.” (Adm. Code, sec. 210; Act No. 3107, sec. 1.) A
justice of the peace may, following an investigation by the Judge of First
Instance, be reprimanded, or the Judge of First Instance may recommend to the
Governor-General his removal from office, or his removal and disqualification
from holding office and may suspend him from office pending action by the
Governor-General. “The Governor-General may, upon such recommendation or on his
own motion, remove from office any justice of the peace or auxiliary justice of
the peace.” (Adm. Code, sec. 229.)
It is thus incontestible that an appointment of a justice of
the peace is made by the Governor-General, with the advice and consent of the
Philippine Senate. A removal of the justice of the peace, on the other hand, is
made by the Governor-General, without the advice and consent of the Philippine
Senate. Interlocked by these two principles stands section 206 of the
Administrative Code which, before amendment, provided: “A justice of the peace
having the requisite legal qualifications shall hold office during good behavior
unless his office be lawfully abolished or merged in the jurisdiction of some
other justice.” Act No. 2768 amended said section 206 of the Administrative Code
by adding the proviso “That in case the public interest requires it, a justice
of the peace of one municipality may be transferred to another.” The proviso was
inserted in the law, so it has been said, not to give power to appoint justices
of the peace to other municipalities without further confirmation from the
Senate, but to assert the right of the Government to transfer justices of the
peace from one jurisdiction to another even without their consent. (See
I Araneta’s Administrative Code, p. 350.)
Let us notice again the wording of the amended section 206 of
the Administrative Code. The body of the section sanctions the holding of office
by justices of the peace during good behavior. The proviso qualifies this by
providing “That in case the public interest requires it, a justice of the peace
of one municipality may be transferred to another.” At once it is noted that the
law is silent as to the office or entity which may make the transfer. The law
does not say may be transferred “by the Governor-General.” The insertion of the
words “by the Philippine Senate” would be as justifiable. The more reasonable
inference, indeed the only possible legal inference permissible without
violating the constitution, is that the justice of the peace may be transferred
by the exercise of the appointing power, and the appointing power consists of
the Governor-General acting in conjunction with the Philippine Senate.
That is all there is to the case. Just some conceded facts
calling for the application of the law. Logically we should stop here. But we
proceed to ascertain the meaning of the proviso to codal section 206 by fitting
the proviso into the general scheme of the law.
The justice of the peace is appointed to a specific
municipality. The only legal method by which the appointment can be made is by
the Governor-General, with the advice and consent of the Philippine Senate. Any
other attempted method intended to provide for an appointment through subterfuge
or evasion would be in clear violation of organic law. The Organic Act, the Act
of Congress of August 29, 1916, in section 21 provides that the Governor-General
“shall, unless otherwise herein provided, appoint, by and with the consent of
the Philippine Senate, such officers as may now be appointed by the
Governor-General, or such as he is authorized by this Act to appoint, or whom he
may hereafter be authorized by law to appoint.” When the Organic Act was
approved, section 206 of the Administrative Code, unamended, was on the statute
books. It was thus beyond the power of the Philippine Legislature by the
enactment of Act No. 2768 or any other Act or of the Governor-General by
enforcement or wrong construction to detract from the provisions of law which
had been confirmed by the Organic Act.
A justice of the peace is placed in a certain municipality by
the Governor-General, with the advice and consent of the Philippine Senate. The
justice of the peace in any other municipality receives his office from the same
source. They serve during good behavior. The only method by which either of them
can be gotten out of their positions is by removal. When a vacancy in the
position of justice of the peace of any given municipality occurs, the vacant
office can only be filled by appointment that is, by the Governor-General, with
the advice and consent of the Philippine Senate.
The justice of the peace gets in by appointment. He gets out by
removal. There is no halfway in or out method. A transfer of a justice of the
peace outside of the municipality to which he was appointed is, in legal effect,
a combined removal and appointment. A forced transfer creates a permanent
vacancy. One phase in the transfer is tantamount to appointment. The removal
does not need the consent of the Senate. The appointment does need that consent.
What may not be done directly may not be permitted to be done indirectly.
The previous decisions of this court intended to safe-guard the
independence of the judiciary should not be departed from without good reason.
In the well known cases of Borromeo vs. Mariano ([1921], 41 Phil., 322), and
Concepcion vs. Paredes ([1921], 42 Phil., 599), it was announced, as to Judges
of First Instance, that they 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, it was said, until
they either resign, reach the age of retirement, or are removed through
impeachment proceedings. That was the doctrine of the majority decisions. But
even under the thesis of the learned dissenting opinion in Borromeo vs. Mariano,
supra, it was still sustained that a new appointment by the
Governor-General, with the advice and consent of the Philippine Senate, would be
necessary to make a valid transfer. Mr. Justice Villamor said: “* * * the
executive power to effect transfers of judges is subject to the approval of a
restraining body, * * * the Senate * * *. According to law, the Governor-General
has the discretion to make transfers of judges * * * with the consent of the
Senate.” In Concepcion vs. Paredes, supra, where the attempt to secure
a transfer of judges by drawing of lots was thwarted, it was further said that
“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. * * * 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.”
The same doctrine has been used to keep the legislative branch
from trespassing on the executive domain. Recent examples come readily to mind.
For instance, the Philippine Senate, with power to punish an appointive Senator
for disorderly behavior but without power to remove him, sought to get around
the law by decreeing a suspension for one year, but this court in both majority
and minority opinions held that the suspension was equivalent to expulsion and
could not be sanctioned. (Alejandrino vs. Quezon [1924], 46 Phil., 83.)
What we now have to do is to carry forward the same principle
and, applying it just as serenely, protect a branch of the Legislature from an
absorption of its power by the Chief Executive. Facts change but principles
remain immutable. The Attorney-General endeavors to demonstrate the purpose of
the Legislature by citing the legislative history of the bill which later became
Act No. 2768. The Attorney-General shows that when the house bill was submitted
to the Senate an amendment was approved by inserting the following: “Siempre que
su nombramiento, en virtud del traslado, sea confirmado por el Senado.” Later
the amendment was eliminated and the bill approved in its present form. It may,
therefore, be that the Legislature had in view, by refusing to accept the
amendment, precisely what is now contended for, which is to place the power of
transfer in the hands of the Governor-General without legislative restriction.
An equally permissible supposition is that the Legislature thought the amendment
unnecessary and superfluous because of the plain meaning of the bill without it.
The subject is so confused that no help can be derived from this source.
The representatives of the Attorney-General also offer an
argument which, we are sure, the law officer of the Government, on further
reflection, would not desire to sanction. It is said that “It is not pertinent
to claim for the justices of the peace that judicial independence which is often
invoked for judges of first instance. It is within the judicial knowledge of
this Honorable Court that justices of the peace in the Philippine Islands are
not equipped with the same mental and moral qualifications as judges of first
instance and that their conduct in office in many instances leaves much to be
desired.” But the mental or moral equipment of the incumbents of the office and
their conduct while in office, are entirely beside the question. A justice of
the peace is a member of the judiciary. Of that office, this court has said that
it “is one both ancient and honorable, * * * the justice of the peace has become
an important judicial officer.” (Narcida vs. Bowen [1912], 22 Phil., 365.) The
humble occupant of the office of justice of the peace in the most remote and
insignificant municipality is entitled to the same measure of respect as any
member of this tribunal. A marshalling of justices of the peace to march at the
command of the Chief Executive would constitute just as effective interference
with judicial independence as would a similar attempt to transfer a member of
the Supreme Court to some other jurisdiction.
We decide the question by holding that in case the public
interest requires it, a justice of the peace of one municipality may be
transferred to another only by the Governor-General, with the advice and consent
of the Philippine Senate. Hence, it results in a decision to the effect that the
plaintiff is lawfully entitled to the office of justice of the peace of Angat,
Bulacan. Judgment shall issue ousting the defendant from the office of justice
of the peace of Angat, Bulacan, and placing the plaintiff in possession of the
same. Without any finding as to costs, it is so ordered.
Avanceña, C. J., Ostrand, Johns, Romualdez, and
Villa-Real, JJ., concur.
Street, J., dissents.
JOHNSON, J.:
The majority opinion is the boldest piece of judicial
legislation to be found in the annals of jurisprudence.
The only question presented to this court for solution is: May
the Governor-General transfer a justice of the peace from one municipality to
another?
Section 206 of the Administrative Code of 1917 provides that “a
justice of the peace having the requisite legal qualifications shall hold office
during good behavior unless his office be lawfully abolished or merged in the
jurisdiction of some other justice (of the peace): Provided, That in
case the public interest requires it, a justice of the peace of one municipality
may be transferred to another.”
Said section 206 now reads, by virtue of the judicial
legislation, as follows: “A justice of the peace having the requisite legal
qualifications shall hold office during good behavior unless his office be
lawfully abolished or merged in the jurisdiction of some other justice (of the
peace): Provided, That in case the public interest requires it a
justice of the peace of one municipality may be transferred to another;” and
provided, further, that in case the public interest requires it a justice of the
peace of one municipality may be transferred to another, by the advice and
consent of the Philippine Senate.
The majority opinion has done, by judicial legislation, exactly
what the Legislature itself refused to do when that question was squarely
presented to it. Recently an effort was made by the Philippine Senate to amend
said section 206, by adding a proviso thereto, “that in case the public interest
requires it a justice of the peace of one municipality may be transferred to
another by the advice and consent of the Senate” But such amendment was
rejected. The court, in the majority opinion, has now done exactly what the
Philippine Senate refused to do. The reason for the amendment to said section
206 made by the court can only be found in an effort to handicap the Executive
Department of the Government in the due enforcement of the laws of the
Philippine Islands and the administration of justice. There is just as much
reason for holding that the suspension or removal of a justice of the peace must
receive the confirmation of the Senate as there is for holding that his transfer
from one municipality to another must receive the approval of the Senate. The
removal or suspension of a justice of the peace is a more severe penalty imposed
upon him for incapacity, immorality or dishonesty than his transfer from one
municipality to another when the public interest requires it.
The result of this decision, if the Executive Department of the
Government is to maintain its self-respect, will be that hereafter justices of
the peace will be removed and not transferred when public interest requires it.
Politics and corrupt political leaders have ruined many good men who might be of
great value to the public in other localities and under different surroundings.
It is stated that said section 206 does not provide that the
transfer of a justice of the peace from one municipality to another may be made
by the Governor-General. If that statement has any merit at all as an argument,
it must mean that the Governor-General cannot transfer a justice of the peace
and it must lead to the conclusion that the order of transfer in question is
illegal for lack of authority. If lack of authority is the reason for its
illegality, then the argument that the order must be confirmed by the Senate is
hardly necessary.
I am not one of those who believe that the office of a justice
of the peace or that of any other judicial officer is so high or sacred that it
cannot be touched when by practices of immorality, political intrigue,
dishonesty, disregard for the law, lewdness, and deviation from probity and
integrity, renders a continuance of his services repugnant to public interest
and the highest interests of the state.
The courts have no legislative powers. In the interpretation
and construction of statutes their sole function is to determine, and, within
the constitutional limits of the legislative power, to give effect to the
intention of the legislature. The courts cannot read into a statute something
which is not within the manifest intention of the legislature as gathered from
the statute itself. To depart from the meaning expressed by the words of a
statute, is to alter the statute, to legislate and not to interpret. The
responsibility for the justice or wisdom of legislation rests with the
legislature, and it is the province of the courts to construe, not to make the
laws.
Every statute is understood to contain, by implication, if not
by express terms, all such provisions as may be necessary to effectuate the
rights, powers, privileges or jurisdiction which it grants, and also such
collateral and subsidiary consequences as may be fairly and logically inferred
from its terms.
When a statute confers certain powers upon the executive
department of the government, the courts will give weight to the contemporaneous
construction placed upon such a statute by the executive department, whose duty
it is to enforce it. Courts will and should respect the contemporaneous
construction placed upon a statute by the executive department of the
government, whose duty it is to enforce it.
In a government of separate and independent
departments—executive, legislative and judicial—with separate and distinct
functions, one department will not attempt to interfere with the performance of
the executive duties of another. To permit such an interference would destroy
the independence of the separate departments and would make one subject to the
control of the others. For the judiciary to interfere with the executive
department in the enforcement of a plain provision of the statute, would in
effect destroy the independence of that department and would make it subject to
the ultimate control of the judicial department. Such a conclusion or condition
was never contemplated by the organizers of the government.
The courts should proceed with the greatest caution in the
interpretation of statutes conferring express, clear and unambiguous authority
upon the executive department of the government. The courts should never declare
a statute void unless its invalidity is beyond reasonable doubt. In the present
case the legislative department of the government has refused to give to the
statute in question the meaning which the majority opinion seeks to give it.
In my opinion the petition should be denied and the Executive
Department of the Government should be permitted to enforce the plain letter and
spirit of the law without let or hindrance by the judiciary. The petitioner has
shown himself unworthy to occupy his former position.
DISSENTING
VILLAMOR, J.:
From the facts set out in the majority decision, the question
to be determined is whether or not the consent of the Senate is necessary for
the validity of the transfer of a justice of the peace from one municipality to
another, made by the Governor-General by virtue of the discretional power
conferred on him by the law to order such transfer in the interest of the
public.
The law applicable to the case is section 206 of the
Administratvie Code as amended by section 1 of Act No. 2768, which is as
follows:
“SEC. 206. Tenure of office—transfer from one
municipality to another.—A justice of the peace having the requisite legal
qualifications shall hold office during good behavior unless his office be
lawfully abolished or merged in the jurisdiction of some other justice:
Provided, That in case the public interest requires it, a justice of
the peace of one municipality may be transferred to another.”
In connection with the amendment of section 206 of the
Administrative Code by Act No. 2763, it is in point to consider that said
amendment was at first drafted by the Senate in the following form:
“SEC. 206. A justice of the peace having the requisite legal
qualifications shall hold office during good behavior unless his office be
lawfully abolished or merged in the jurisdiction of some other justice:
Provided, That whenever the Government deems it wise, the justice of the
peace of one municipality may be transferred to another.” (Vol. 2, Journal of
the sessions of the Philippine Senate, pp. 592-593.)
When the bill came up in the Senate for discussion and
approval, Senator Rodriguez proposed an amendment to it, adding immediately
after the word “another” the following: “provided that his appointment, by
virtue of the transfer, be confirmed by the Senate.” This amendment was approved
by the Senate, but when the amended bill was referred to the House of
Representatives, Senator Rodriguez’s amendment was rejected, so that the bill
was approved in the following form:
“SEC. 206. A justice of the peace having the requisite legal
qualifications shall hold office during good behavior unless his office be
lawfully abolished or merged in the jurisdiction of some other justice:
Provided, That in case the public interest requires it, a justice of
the peace of one municipality may be transferred to another.” (Vol. 13, Journal
of the sessions of the House of Representatives, p. 554.)
With this substitution, the bill was returned to the Philippine
Senate, where it was unanimously approved as amended by the House of
Representatives.
Such is the bill that became a law, and it is thus that section
206 of the Administrative Code was amended in the 1926 edition.
As may be seen, the majority decision adds to the law the
requisite of a confirmation by the Senate, a requisite that the Legislature
deliberately omitted. I deem it unnecessary to adduce arguments to show that the
courts should not exercise legislative functions. This is a self-evident
propositon and for this reason I am constrained to dissent from the majority
decision. Both parties in their briefs speak of the difference between transfer
and appointment, and of the consent of the transferred judge, citing the
decision in the case of Borromeo vs. Mariano (41 Phil., 322). Having expressed
at length my humble opinion on these points in the case, I desire to reproduce
here, in order to avoid repetition, the reasoning I there adduced.
Writ granted.