FELIPE BELARMINO, PLAINTIFF AND APPELLANT, VS. C. C. HAMMOND, INSULAR AUDITOR OF THE PHILIPPINES, AND THE DIRECTOR OF PUBLIC WORKS, DEFENDANTS AND APPELLEES.

Felipe Belarmino, the plaintiff, had been operating a motor truck since May,
1929, and in June, 1930, defendant Insular Auditor recommended to the Director
of Public Works, the other defendant, the suspension of the operation of his
truck, and the latter ordered the.suspension.

The plaintiff alleges that he has paid the registration fee for this truck,
and asks the court to enjoin the defendants from acting upon the suspension. The
defendants contend that he has not paid the fee, and in a counterclaim ask that
he be ordered to pay the Government P95.84, the amount of such fee.

After reviewing the evidence, we find that the plaintiff has paid the 1929
registration fee for the truck in question. The plaintiff’s son, Amador,
testified that in obedience to his father, he went to the Bureau of Public Works
to pay the fee, and delivered the money to an employee in charge of one of the
windows, who gave him a receipt. He took it to another window, where he was
given the number plate by another employee. Some months later, the plaintiff
received the registration certificate by mail. The plaintiff, however, says that
he has lost the receipt and therefore was unable to produce it at the trial.

Salustiano Reyes, superintendent of the automobile division of the Bureau of
Public Works, who testified for the defendants, says that according to the Motor
Vehicle Register, the 1929 fee for this truck was paid, the official receipt for
it being No. 6291289. Such an entry in the book, he says, is not made until the
fee is paid and the plate is not delivered unless the receipt is presented.

The defense has shown that the duplicate copy of receipt No. 6291289, in the
Bureau of Public Works, is made out in another person’s name for the amount of
only Pl; this is not what the plaintiff had to pay for the registration of his
truck.

The testimony of the plaintiff’s son, who paid the registration fee for the
truck, proves that such fee was paid. He is borne out by the entry in the
official book of the Bureau of Public Works, and by the fact that the plaintiff
received the proper number plate; for even according to the evidence furnished
by the defendants, that entry could not have been made in the book if such fees
had not been paid, and the plate would not have been delivered if the official
receipt of this payment had not been exhibited at the proper window; and these
circumstances take on added weight from the additional fact that in these
transactions, several employees took part.

The fact that the plaintiff has lost the official, receipt, which is not at
all unlikely, does not justify a contrary conclusion. Nor does the fact that the
duplicate receipt was made out in somebody else’s name do so, for this may be
due to misconduct on the part of some Public Works employees, independent of the
plaintiff. Salustiano Reyes testified that cases had come to light in his office
of duplicate receipts made out for different amounts from those collected. We
are convinced that this is one of those cases, for the plaintiff has proved that
he paid the proper fee.

Not only does the entry in the official book, and the delivery of the number
plate corroborate the plaintiff’s son; but they are incompatible with the
contention that the payment was not made. There is nothing to show that the
entry was a mistake, and even if it were, the plaintiff has not been shown to
have been aware of the mistake so that he could take advantage of it by
pretending to have paid, without having done so. Nothing short of an unlawful
connivance between the plaintiff and the employee who made the entry would
justify our finding that the payment was not made, although the books show it
was. The record contains no proof of such connivance, and it cannot be justly
presumed.

Holding, as we do, that the plaintiff paid the fee for the operation of his
motor truck, the fact that the employee who received the money did not turn it
in as he should have done, is no reason for requiring the plaintiff to pay a
second time. The money was received by an employee in the performance of his
official duties, and this was all the plaintiff was bound to see to. He was by
no means under obligation to watch and see what the man did with the money, nor
would he have been justified, to protect himself, in interfering with the
business of the bureau in order to make sure that the employee deposited the
money in the safe.

The judgment appealed from is affirmed so far as it confirms and declares
permanent the preliminary injunction issued against the defendants, and reversed
so far as it order the plaintiff to pay the defendants the sum of P95.84, for
the plaintiff is hereby absolved from the counterclaim; without special
pronouncement as to costs. So ordered.

Street, Villamor, Romualdez, and Villa-Real, JJ.,
concur.

JOHNSON, J.:

I vote to confirm.

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DISSENTING

OSTRAND, J.

I regret that I cannot agree with the majority of the court in this case. The
difficulty is that it seems to have overlooked the fact that the registration
fees for motor vehicles go to the Insular Treasury and belong to the Government.
In order to operate a motor vehicle, the owner is bound to pay the registration
fees to the Government; the fee is usually delivered to the employees in the
Bureau of Public Works and from there is covered into the Insular Treasury for
the Government’s use.

In the present case the plaintiff’s son may possibly and honestly have paid
the fees to public agents or servants in the Bureau of Public Works, but it is
clear that the money never reached the Government, and the consequence was that
the plaintiff operated his auto-truck illegally during the year 1929 by reason
of the failure to give the Government its due.

Exhibit D of the record of the case gives a fair idea of what employees have
sometimes done in the automobile division of the Bureau of Public Works. In the
months of May and June, 1929, two employees in the division, Nicanor Mananes and
Alberto Limqueco, obtained possession of a blank official receipt book
containing Nos. 6293201 to 6293300, inclusive, and in combination with an
employee of the Pacific Commercial Company, filled out and issued eight of the
receipts by forging the signature of one Andres Gutierrez, another employee of
the automobile division, and by deceiving the Pacific Commercial Company,
received several hundred pesos for their own personal use, but to the “damage
and prejudice of the said Pacific Commercial Company” (quoted from the
complaint). Nicanor Mananes pleaded guilty, and in October, 1929, he was
sentenced to eight years and one day of prision mayor and to a fine of 250
pesetas.

The irregularity in this case has much in common with the operations of
Nicanor Mananes et al. in the Pacific Commercial Company. The plaintiff
maintains that he lost the original official receipt, but it is not disputed
that the duplicate of the same original official receipt has the same printed
number as the original; it is clear that its signature is a forgery of Andres
Gutierrez’ handwriting and is probably the work of Mananes.

It may be noted that the alleged registration of the autotruck in question
was made on May 4, 1929, very shortly before the Pacific Commercial Company was
swindled by Mananes and his assistants. The forgery in the present case was
discovered a few months afterwards by the auditor who examined the accounts of
the automobile division of the Bureau of Public Works. It was found in the Motor
Vehicle Register that among many entries relating to the plaintiff’s auto-truck,
the original official receipt had the number of A-6291289 and that the
registration fee amounted to P64.56.

The Motor Vehicle Registration Book contains the important features of the
automobiles and remains in the automobile division. Up to the year 1929 the book
was probably not often consulted by the auditors.

The official receipts for the registration fees are bound in books of 100
original receipts. In the same book a duplicate and a triplicate are attached to
each original official receipt. When an official receipt is written and issued,
the rule is that the corresponding duplicate and triplicate must be copied by
carbon paper laid under the original. The official receipt is written on yellow
paper and is delivered to the owner of the motor vehicle. The duplicate goes to
the office of the Insular Auditor for accounting, but the triplicate is kept in
the automobile division.

In the present case the person who issued the official receipt No. 6291289
for the registration fee in question evidently did not copy the duplicate and
triplicate until the original official receipt was delivered to the son of the
plaintiff, and it was then a simple matter to take the duplicate and triplicate
and convert them into an “expired temporary permit” for a motor cycle at a sum
of only P1. As the duplicate carried exactly the same printed numbers as the
original, it was turned over to the Auditor for the audit of the lone peso, and
the person who issued the original receipt took the P64.56 for his own use or,
perhaps, in part, for his companions.

In sections 2, 3, and 4 of Act No. 3045 it is prescribed that private owners
operating their motor vehicles on the public highways must pay registration fees
to the Government at the rates provided in said sections. As we have seen, the
registration fees due from the plaintiff were not paid to the Government in
1929, notwithstanding the fact that the motor vehicle had operated on the public
highways. Can we then say that the Government may not be permitted to collect
the fee? As far as I can see, this court is exceeding its jurisdiction in
peremptorily depriving the Government of its legal dues.

It may, perhaps, be said that the Government is responsible for the
misfeasance of its employees, but such cannot be the case in our jurisdiction.
The United States Government is not liable for the torts of its employees, and
the Philippine Government, being a branch of the former, has the same
privilege.

There is no lack of authorities upon the point in question.

In the case of Gibbons vs. United States (8 Wall., 269), Justice Miller
said:

“No government has ever held itself liable to individuals for the
misfeasance, laches or unauthorized exercise of power by its officers and
agents.

“In the language of Judge Story, ‘It does not undertake to guarantee to any
person the fidelity of any of the officers or agents whom it employs, since that
would involve it in all its operations in endless embarrassments, and
difficulties, and losses, which would be subversive of the public interests.’
“

In the case of Lee vs. Munroe and Thornton (7 Cranch, 366), Justice
Livingston said: “It is better that an individual should now and then suffer by
such mistakes than to introduce a rule, against an abuse of which, by improper
collusions, it should be very difficult for the public to protect itself.”

The action against the Insular Auditor and the Director of Public Works is
apparently against the two public officers but is in reality a suit against the
Government or the State itself. As to such cases, Justice Pitney in the decision
of the United States Supreme Court in Ex Parte State of New York (256 U. S.,
490), said:

“That a State may not.be sued without its consent is a fundamental rule of
jurisprudence having so important a bearing upon the construction of the
Constitution of the United States that it has become established by repeated
decisions of this court that the entire judicial power granted by the
Constitution does not embrace authority to entertain a suit brought by private
parties against a State without consent given: not”one brought by citizens of
another State, or by citizens or subjects of a foreign State, because of the
Eleventh Amendment; and not even one brought by its own citizens, because of the
fundamental rule of which the Amendment is but an exemplification. Beers
vs. Arkansas, 20 How., 527, 529; Railroad Co. vs. Tennessee,
101 U. S., 337, 339; Hans vs. Louisiana, 134 U. S., 1, 10-17; North
Carolina vs. Temple, 134 U. S., 22, 30; Fitts vs. McGhee, 172
U. S., 516, 524; Palmer vs. Ohio, 248 U. S., 32, 34; Duhne vs.
New Jersey, 251 U. S., 311, 313.”

The Government has not given its consent in the present case, and the court
is going beyond its jurisdiction. In my opinion the case should be
dismissed.

MALCOLM, J.:

I concur in the dissenting opinion of Justice Ostrand except that I vote to
affirm the judgment of the trial court.

IMPERIAL, J.:

I concur with Justice Ostrand.