TAN TE, PLAINTIFF AND APPELLANT, VS. J. FRANKLIN BELL ET AL., DEFENDANTS AND APPELLEES.

The short decision heretofore rendered in this case affirmed the judgment of
the trial court.^[1] This opinion is
intended to set forth at some length our reasons for sustaining that
judgment.

“AGREED STATEMENT OF FACTS.

“It is hereby agreed by and between the parties to the above-entitled action
that:

“(1) The plaintiff, Tan Te, is of legal age and a resident of the city of
Manila, Philippine Islands; he is a dealer in second-hand merchandise in said
city; his place of business is located at 314 Calle Gandara, city of Manila, the
same not being within any military reservation; he is not a soldier or officer
of the United States.

“(2) The defendant J. Franklin Bell is the commanding general, Philippines
Division, United States Army; the defendant W. S. Wood is a deputy
quartermaster-general of the United States Army, with the rank of
lieutenant-colonel ; the defendant James F. Dean is assistant to the adjutant
general, Philippines Division, with the rank of major; the defendant Ulysses G.
McAlexander is a major in the Thirteenth Infantry; at the time of commencing
this action, all of the defendants were stationed in and residents of the city
of Manila.

“(3) On the 21st day of May, 1912, the plaintiff was in
possession of certain property of the value of P800 as follows : (Description of
property set forth.)

” (4) On the 21st day of May, 1912, the said
property was seized and taken by the defendants. It is now in possession of the
depot quartermaster of the United States Army, city of Manila.

“(5) Said property was not taken for tax, assessment, or fine pursuant to a
statute, or seized on execution or attachment against the property of the
plaintiff, or in pursuance of any process of law or any civil court or civil
authority of the Philippine Islands, but was seized and taken pursuant to the
provisions of section 3748 of the Revised Statutes of the United
States.

“(6) Of said property the following had not been furnished prior
to such seizure by the United States to its soldiers in the United States Army:
(Description of property follows.)

“Of said property the following had been furnished prior to such seizure by
the United States to certain of its soldiers in the United States Army and
thereafter, as effects of deceased soldiers, had been sold by the United States
to the plaintiff: (Property described.)

” (7) Of said property the
following, consisting of clothes and military outfits, had been furnished prior
to such seizure by the United States to certain of its soldiers: (Description of
property set forth.) Prior to such seizure, the United States had not within the
Philippine Islands, by public sale, disposed of, or transferred any right,
title, or interest in any clothing or outfits of the particular patterns, kinds,
or standards of the articles last mentioned. All of said articles last mentioned
in this paragraph were, prior to said seizure, sold by certain of the soldiers
of the United States Army or by third parties who had received said articles by
purchase, barter, exchange, pledge, or by theft from soldiers of the United
States Army, to the plaintiff.

“(8) Before the bringing of this action, the following agreement for
attorneys’ fees was made: P250 in cash was paid by the plaintiff to O’Brien
& DeWitt, with agreement that at the close of this case in the Court of
First Instance or Supreme Court of the Philippine Islands, whether they won it
or lost it, he would pay P1,000. This agreement does not take into consideration
the question of fees in the Supreme Court of the United States, should the case
ever go that far.”

The trial court, after finding that the property described in paragraph 6 of
the above agreed statement of facts was seized by the defendants in good faith
and in a mistaken belief that it was of the same character as that described in
paragraph 7, adjudged “that plaintiff have and recover from defendants the said
property described in paragraph 6 of the stipulation, together with his costs,
but that he recover none of the property described in paragraph 7 of said
stipulation.” Plaintiff appealed.

Counsel for the appellees says: “It is, however, submitted that if the
court see by the complaint, the answer, and the evidence that this is in reality
a suit against the United States without its consent, it should, of its own
motion, take notice of this fact and dismiss the case for lack of
jurisdiction.”

Upon this point we think it sufficient to say that it is alleged in the
complaint that the “defendants illegally, wrongfully, and by force, and without
any due process of law whatsoever, took from the plaintiff” the property in
question, and “that said property is wrongfully detained by the defendants.” In
Tindal vs. Wesley (167 U. S., 204), the court, after reviewing many of
its decisions, said: “But the eleventh amendment gives no immunity to officers
or agents of a State in withholding the property of a citizen without authority
of law. And when such officers or agents assert that they are in rightful
possession, they must make good that assertion when it is made to appear in a
suit against them as individuals that the legal title and right of possession is
in the plaintiff.”

The present case is so clearly within the principles affirmed and the cases
reviewed in that opinion that we deem it unnecessary to discuss this point
further.

Counsel for the appellant insist that the trial court erred (a) in
holding that the provisions of section 3748 of the Revised Statutes of the
United States are in force in this jurisdiction and (b) in failing to
render judgment in favor of the plaintiff for the return of the property
described in paragraph 7 of the above stipulation; and for the sum of P1,250,
being the amount of counsel fees and compensatory damages.

Sections 3748 and 1891 of the Revised Statutes of the United States and the
pertinent part of section 1 of the Organic Act of the Philippine Islands (Act of
July 1, 1902) read:

“The clothes, arms, military outfits, and accouterments furnished by the
United States to any soldier shall not be sold, bartered, exchanged, pledged,
loaned, or given away; and no person not a soldier, or duly authorized officer
of the United States, who has possession of any such clothes, arms, military
outfits, or accouterments, so furnished, and which have been the subject of any
such sale, barter, exchange, pledge, loan, or gift, shall have any right, title,
or interest therein; but the same may be seized and taken by any officer of the
United States, civil or military, and shall thereupon be delivered to any
quartermaster, or other officer authorized to receive the same. The possession
of any such clothes, arms, military outfits, or accouterments, by any person not
a soldier or officer of the United States shall be presumptive evidence of such
a sale, barter, exchange, pledge, loan, or gift.” (Sec. 3748.)

“The Constitution and all laws of the United States, which are not locally
inapplicable, shall have the same force and effect within all the organized
territories, and in every territory hereafter organized, as elsewhere within the
United States.” (Sec. 1891.)

“The provisions of section 1891 of the Revised Statutes of 1878 shall not
apply to the Philippine Islands.” (Sec. 1.)

As to the appellant’s rights in this case, counsel also rely upon the
following provisions of section 5 of the Act of Congress of July 1, 1902:

“That no law shall be enacted in said Islands which shall deprive any person
of life, liberty, or property without due process of law, or deny to any person
therein the equal protection of the laws.”

“That the right to be secure against unreasonable searches and seizures shall
not be violated.”

“That no warrant shall issue but upon probable cause, supported by oath or
affirmation and particularly describing the place to be searched and the person
or things to be seized.”

Section 334 of the Code of Civil Procedure reads:

“The following presumptions are satisfactory, if uncontradicted, but they are
disputable, and may be contradicted by other evidence:”

” (7) That a thing delivered by one to another belonged to the latter;”

” (10) That things which a person possesses are owned by him;

” (11) That a person is the owner of property from exercising acts of
ownership over it, or from common reputation of his ownership.”

CIVIL CODE.

“Art. 348. Ownership is the right to enjoy and dispose of a thing, without
further limitations than those established by law.

“The owner has a right of action against the holder and the possessor of a
thing to recover the same.

“Art. 349. No one shall be deprived of his property, except by competent
authority and with sufficient cause of public utility, always after the proper
indemnity.

“If this requisite has not been fulfilled the judges shall protect, and in a
proper case, replace the party so deprived in possession.”

“Art. 434. Good faith is always presumed, and any person alleging bad faith
on the part of the possessor is obliged to prove it.”

“Art. 441. In no case can possession be forcibly acquired while there is a
possessor opposing it. A person believing that he has an action or right to
deprive another of the holding of a thing must request the assistance of the
competent authority whenever the holder refuses the delivery.”

“Art. 446. Every person has a right to be respected in his possession; and
should he be disturbed therein, he must be protected or possession must be
restored to him by the means established in the laws of
procedure.”

Before entering upon a discussion of the main question (i. e., whether
section 3748, supra, is in force and effect in the Philippine Islands),
it might be well to inquire into the purpose of the seizure and the title to the
property now in question.

One of the greatest difficulties with which officers of the Army have to
contend in times of peace is the unlawful disposal by enlisted men of the Army
of their uniform clothing. This is especially true where troops are stationed in
the vicinity of large cities. As indicating the views of the military
authorities with reference to this pernicious practice, so hurtful to
discipline, it may be remarked that the President of the United States, at their
suggestion, in his Executive Order of November 25, 1908, fixing the limits of
punishment of enlisted men in certain cases, issued in pursuance of the Act of
Congress of September 27, 1890, increased the limit of punishment for selling
clothing from three months’ confinement at hard labor and forfeiture of $10 per
month for the same period, to dishonorable discharge, forfeiture of all pay and
allowances, and confinement at hard labor for one year. Even with this severe
penalty, there has been no appreciable reduction in the number of these offenses
in the Philippine Islands. The Commanding General of the Philippine Division in
his report, dated August 12, 1912, remarked that “a certain percentage—15 per
cent—of the cases tried by the general court-martial in this division during the
year involved the selling or other unlawful disposition of clothing.”

The real purpose of the procedure followed in this seizure was to break up
this practice of purchasing clothing from soldiers, which had been issued to
them by the United States for military purposes. It was believed that civil
actions in the courts pursuant to search warrants and regular procedure had
failed to remedy the situation. The military authorities claim in this case that
they proceeded in accordance with the express provisions of section 3748,
supra, which they insist not only grants authority, but goes further
and makes mere possession of such military outfits by any person not a soldier
or officer of the United States Army evidence of an unlawful sale, etc.

The laws governing the United States Army being either Federal Statutes or
regulations promulgated pursuant to Federal Statutes, the decisions of the
Federal courts can properly be followed. These courts have held that the title
to clothing issued by the United States to soldiers remains in the United
States. In the case of the United States vs. Hart (146 Fed., 202), the
court said: “These sections of the Revised Statutes indicate that the title to
clothing issued to soldiers remains in the United States; therefore, I hold that
in this case the articles of clothing which were issued to the soldiers at Fort
Sheridan while they were employed in the military service of the United States
were public property, under section 5438. Motion to take from the jury
overruled.”

Lacombe, circuit judge, in the late case of Lobosco vs. United
States (183 Fed., 742), following the Hart case, in part said: “It seems
entirely clear from these sections that in supplying the recruit with an
equipment suitable and necessary for the discharge of his military duties the
Government has been very careful to retain title to the same. It would seem to
be public property, whether it remains in depot or is put in the possession of
the individual soldier. The circumstance that, when his term expires, he is
allowed to retain such articles of clothing as he has then in use, does not
change the character of his holding while he is in the service of the
Government. Three points are presented in appellant’s brief. * * * It is
assigned as error that the court did not dismiss the indictment on the ground
that the goods purchased were not a part of the equipment of the marines,
because they were furnished to them under their clothing allowance. There are
two conflicting decisions, both in district courts, as to the status of articles
issued to the soldier or sailor under his clothing allowance, viz, U. S.
vs. Michael (153 Fed., 609), and U. S. vs. Hart (146 Fed.,
202). We concur in the conclusion in the Hart, case, for reasons which are
sufficiently set forth in the earlier part of this opinion.”

In the still later case of Ontai vs. United States (188 Fed., 310),
decided on July 3, 1911, Gilbert, circuit judge, said:

“Error is assigned to the refusal of the court to instruct the jury to acquit
the plaintiff in error on the ground that the property which he purchased of the
soldier had been allowed to the latter under a clothing allowance, whereby it
became his individual property, held by him subject only to his contract with
the United States not to dispose of the same, but with a tenure which permitted
another to purchase the same without incurring any penalty for violation of the
statute, and it is consented that the indictment having charged the purchase of
public property of the United States, and the proof having shown that the
purchase was an article of clothing which had been allowed to a soldier, the
variance between the indictment and proof was fatal. * * * It is true that one
of the promises held out to the soldier about to enlist is the payment to him of
a certain sum of money, and the allowance to him of certain specified clothing.
But the clothing which he receives is held by a different tenure from the money.
The latter is the soldier’s to spend at his will. The clothing is part of his
equipment for services which he is to render to the United States. He gets no
property right in it other than the right to wear it. It is as much a portion of
his equipment as is his gun or his ammunition. It remains public property of the
United States.”

The Judge-Advocate-General on May 12, 1910, reviewing previous opinions on
this subject, reached an identical conclusion. The Attorney-General of the
Philippine Islands on June 30, 1910, in an opinion to the Governor-General held
definitely that “clothing issued to soldiers is the property of the United
States.”

The above quoted provision of section 1 of the Act of July 1, 1902, makes
inapplicable to these Islands section 1891, supra. Section 1891 was
embodied ipsissimis verbis in practically all the organic acts of
territories organized prior to its enactment. Its effect was to extend to such
territories those constitutional restrictions upon the territorial governments
and those strictly personal rights and privileges enjoyed by the citizens of the
several States. It furthermore extended to those territories the laws of the
United States relating to public lands, customs, internal revenue, mining, and
the laws relating to interstate commerce and navigation. To enumerate all the
constitutional provisions and laws of the United States that were thus extended
and made applicable to the territories affected by this section would be of but
little further assistance in the disposition of this case. It is sufficient for
our purposes to show its general and more important effects. Notwithstanding the
fact that, as stated in Clinton vs. Englebrecht (13 Wall., 434) “In all
the territories full power was given to the legislature over all ordinary
subjects of legislation,” the constitutional provisions and laws of the United
States, recognized as having uniform operation throughout the several States,
were extended to these territories. Situated as these territories were in the
western part of the North American continent, physically united to the union of
the States, their civilized population coming for the most part from that union
and bringing with them those notions of government and social customs which made
that union possible, and destined ultimately to form component units therein,
nothing was more practicable, equal in statesmanship, or less disturbing to the
existing condition of affairs than to confer upon these territories from the
inception of their existence as such the Constitution and general laws of the
United States. At the time (1874) section 1891 was enacted, there remained as
unorganized territory of the United States what are now known as Oklahoma, the
Indian Territory, and the territory of Alaska. By the terms of the treaty with
Russia the civilized inhabitants of Alaska, who did not desire to retain their
Russian citizenship by returning to that country, were admitted “to the
enjoyment of the rights, advantages and immunities of the citizens of the United
States” (15 Stat at L., 542). And a year later the laws of the United States
relating to customs, commerce, and navigation were extended to that territory.
Laws passed prior to 1874 had practically committed Congress to the same policy
with regard to those unorganized territories as it had adopted toward the
territories therefore organized west of the Mississippi. At that time (1874) the
events of a quarter of a century later which brought Hawaii, Porto Rico, and the
Philippines under the sovereignty of the United States were not even within the
realm of conjecture. In enacting that blanket provision (section 1891), what was
more natural than that the clause extending the Constitution and laws of the
United States, locally applicable, to territories to be organized in the future,
should have been inserted in section Under existing facts at that time such a
clause was as appropriate as the one stating that the Constitution and laws of
the United States applied to territories already organized.

With the acquirement of the Philippine Islands a most important change in the
territorial policy became necessary. The United States found here a monarchical
form of government. The municipal law was, for the most part, that of Latin
Europe. The “habits, traditions, and modes of life” of the people were entirely
dissimilar to those of continental America.

In the judgment of Congress it was thought necessary to establish a
representative form of government in the Philippines. Those provisions of the
Constitution deemed “indispensable requisites” to the maintenance of such a
government were incorporated in the Organic Act. But others, notably the jury
system, were neither indispensable to the establishment of such a government
(The Insular Cases, 182 U. S., 1, and Dorr vs. United States, 195 U.
S., 138, 49 L. ed., 128), nor were they considered appropriate to the existing
conditions, and were consequently not included. A general and unqualified
extension of the Constitution and laws of the United States to these Islands was
considered impracticable and tending unnecessarily to disturb the existing order
of things.

For reasons which it is unnecessary to set forth in this opinion, Congress
did not desire that the Philippine Islands should be admitted into the customs
union; that the inhabitants of the Philippine Islands should be given the status
of citizens of the United States; or that the public land laws, the laws
relating to mining, customs, navigation, and other similar laws, should be
extended to these Islands in their entirety and without modification. The
inevitable result of an extension of the Constitution and laws of the United
States to the Philippine Islands would have been to give them and their
inhabitants the same status as the mainland territories. Such a scheme was
objectionable, not only for political reasons, but because of the existing
social and economic conditions. Therefore, section 1891 of the Revised Statutes
was declared inapplicable to this country

But because that section is inapplicable, does it necessarily follow that no
provision of the Constitution nor any law of Congress has force and effect in
the Philippines unless expressly extended and made applicable to them by
Congress? Upon the answer to this question depends in a great measure the
correct disposition of this case. Does the withholding of a blanket extension of
the Constitution and laws of the United States, coupled with a specific
extension of certain portions of the Constitution and the laws of the United
States, call for the application of the maxim, expressio unius est exclusio
alterius, to this case?

This case does not bring into question the extension to the Philippines of
any provision of the Constitution. In this particular it deals entirely with
two, or possibly three, laws enacted by the same legislature and having,
therefore, equal intrinsic dignity and effect. If any one of them supersedes any
of the others, it does so not by reason of the higher source from which it
emanates, but simply because it is a later expression of the legislative will.
While, as to the. Legislature of the Philippine Islands, the Act of July 1,
1902, and other Acts of Congress applicable to these Islands have the qualities
and characteristics of a constitution, these laws, considered in relation to
other laws enacted by Congress, are exactly on the same level. In determining
whether any one of them impliedly repeals another, the intention of Congress
must be kept constantly in view.

It is true that only those laws of the United States specifically extended to
these Islands by Congress have force and effect here? That the Articles of War,
which are embodied in an Act of Congress, have force and effect in this country
even in times of peace, was settled by the Supreme Court of the United States in
the case of Grafton vs. United States (206 U. S., 333). Yet these
Articles of War have never been specifically extended to the Philippines by Act
of Congress.

There are in these Islands a considerable number of persons
employed in the Federal civil service. Must their duties be performed and their
conduct be such as is prescribed in Act No. 1698 of the Philippine Commission,
and the rules and regulations promulgated thereunder by the Director of Civil
Service of the Insular Government? Or must these persons look to the Federal
civil-service law and the regulations prescribed therein by the Federal
authorities for an enumeration of their rights and obligations?

But the question becomes easier of solution if we look upon the Government of
the Philippine Islands in its true light as “owing its existence wholly to the
United States,” whose authority may be extended, modified, or revoked by
Congress. Suppose that Congress appoints an agent to do certain specific things,
as, for example, a commission to obtain certain information or data of national
importance, and that Congress endows this commission with certain powers. Will
it be asserted that any of the powers of such a commission, which Congress has
the constitutional authority to delegate to it, could be subordinated to the
regulations of the several legislatures created by Congress in the various
territories, or to the laws of any of the State legislatures through whose
jurisdictions the commission journeys in the performance of its duties? Must it,
for instance, observe the laws of any particular State in summoning witnesses to
testify before it while operating in that State and so on through the various
States and Territories, notwithstanding the fact that Congress has prescribed a
procedure for that purpose in the law creating it? The mere statement of the
proposition is its own refutation.

The various States of the Union have surrendered certain attributes of
sovereignty to the United States. As to those matters the Government of the
United States is supreme. No State can pass any law or take any action in such
matters contravening any law of Congress. Laws of Congress which keep within
constitutional limits are supreme in every State of the Union. At the same time
it is well settled that each of the States has retained for itself other
important functions of government which the Federal Government cannot usurp. The
territorial governments, however, are mere creatures of Congress. They are
subject in every particular to the will of Congress. Congress has recently
asserted its right to legislate for the Territories unhampered by many important
restrictions upon its powers as affecting the sovereign States of the Union. Its
authority so to do has been confirmed by the Supreme Court of the United States
in unequivocal language in the Insular Cases and in Dorr vs. U. S.,
supra. If the various States of the Union may not oppose by
legislation, or otherwise, the duly constituted agents of the United States in
the performance of their duties, much less may the territorial governments do
so.

“It can act only through its officers and agents, and they must act within
the States. If, when thus acting, and within the scope of their authority, those
officers can be arrested and brought to trial in a State court, for an alleged
offense against the law of the State, yet warranted by the Federal authority
they possess, and if the general Government is powerless to interfere at once
for their protection, their protection must be left, to the action of the State
court, the operations of the general Government may at any time be arrested at
the will of one of its members. The legislation of a State may be unfriendly. It
may affix penalties to acts done under the immediate direction of the national
Government, and in obedience to its laws. It may deny the authority conferred by
those laws. The State court may administer not only the laws of the State, but
equally Federal law, in such a manner as to paralyze the operations of the
Government. And even if, after trial and final judgment in the State court, the
case can be brought into the United States court for review, the officer is
withdrawn from the discharge of his duty during the pendency of the prosecution,
and the exercise of acknowledged Federal power arrested. We do not think such an
element of weakness is to be found in the Constitution. The United States is a
government with authority extending over the whole territory of the Union,
acting upon the States and the people of the States. While it is limited in the
number of its powers, so far as its sovereignty extends it is supreme. No State
government can exclude it from the exercise of any authority conferred upon it
by the Constitution, obstruct its authorized officers against its will, or
withhold from it, for a moment, the cognizance of any subject which that
instrument has committed to it.” (Cunningham vs. Neagle, 135 U. S., 1;
34 L. ed., 55.)

And in In re Thomas (82 Fed., 304, 309), Judge Taft said:

“It is entirely immaterial in what place, within the jurisdiction of the
Government of the United States, the duty is discharged. State lines cannot
affect or modify the complete control which the Federal Government and its
agents and officers duly authorized have over the manner of discharging it. The
jurisdiction of the State government in such a case is excluded not because of
the place where the act is done, but because that which is being done is the
business of the United States, and such business is as completely beyond the
influence and control of the State government as if it were not done within the
territory of the State.”

By the Constitution of the United States, Congress is given power by taxation
to provide for the common defense and general welfare of the United States. It
is given power to declare war, to raise and support armies, to provide and
maintain a navy, to make rules for the government and regulation of the land and
naval forces, to suppress insurrections and repel invasions, and to make all
laws which shall be necessary and proper for carrying into execution these
powers. The army, established in pursuance of such power, is not representative
of any particular State or section of the country. It is an agency of the
Federal Government. No State or Territory may interfere in its internal
management nor take from it any of its authority. Admitting, which we all must,
that the right to act under section 3748, supra, is available to an
officer of the United States stationed in one of the sovereign States, by what
process of reasoning is he to be shorn of such power in the Philippine Islands?
Is it because such a seizure as the one under consideration is not in accordance
with the provisions of the above-quoted sections of the local laws ? Such is the
contention of counsel for the plaintiff. Is it because section 3748 does not
apply to the Philippines? If this be true, then its corollary is that the Army
of the United States comes to this country shorn of some of its power by the
will of Congress. We may even go further, and question the operation in
these Islands of any and every Federal law relating to the Army not specifically
extended to this country.

To us the question seems to resolve itself into one of intent. What was the
intention of Congress in enacting section 1891 of the Revised Statutes? in
withholding its application to the Philippine Islands? and in enacting section
3748? We have endeavored to show that the effect of extending section 1891 to
the Philippines would have been to give them the status of the mainland
Territories which, for political, social, and economic reasons was not desired.
This was all that was intended or desired by Congress in inserting’ that proviso
in section 1 of the Act of 1902. Congress did not intend that the Army, liable
to the call of duty in this country on the same business it performed in other
parts of United States territory, should, by the provisions of section 1 of the
Act of 1902, be deprived of any of its general powers, or hampered or restricted
in the due performance of its duties, by the local laws.

It was under its constitutional power “to dispose of and make all needful
rules and regulations respecting the territory and other property belonging to
the United States” that Congress enacted section 3748. As said by Mr. Justice
Field in Wisconsin Central R. Co. vs. Price County (133 U.S., 496, 514;
33 L. ed., 687): “This implies an exclusion of all other authority over the
property which could interfere with this right or disturb its exercise.” The
importance of the question under consideration to the Army is manifest.

While this suit is for the purpose of recovering certain uniform clothing now
in the possession of the military authorities as the result of seizure under
section 3748, it must be borne in mind that precisely the same situation may
arise at any time in relation to arms unlawfully withheld from the Federal
Government. The obvious intent of the framers of section 3748 was to provide a
swift, sure, and summary method of action, for without that the very purpose of
the law would be defeated. This statute was enacted during1 the Civil War to
meet a great pressing emergency, and the fact that it remains to-day unrepealed
indicates that the necessity for its existence in time of peace, as well as in
time of war, is thoroughly recognized. It is, in our opinion, going too far to
hold that a law so essential to the discipline, well-being, and protection of
the Army is of no effect in this great outlying territory of the United States.
To so hold would imperil the very existence of the Army. The Army, especially,
is an agent of the United States Government whose field of duty is nationwide.
The need for its services may arise in any section of the country. It is
inconceivable that Congress in enacting laws for its proper regulation and
maintenance, and in conferring powers upon its officers not specifically limited
to some certain territory, intended to curtail its effectiveness or weaken its
authority by subsequent legislation conferring a government upon a territory
having the status of the Philippine Islands.

Again, an army is a necessity under every system of government, and no
civilized state in modern times has been able to dispense with one. The
Government of the Philippine Islands has never been empowered to raise an army.
The United States Government sent its own army to this country and, surely, it
cannot be said that that sovereign’s army comes to this country shorn of some of
the power which the laws of the sovereign confer upon it as a part of the
executive branch of the national Government.

From the argument on the scope of the first paragraph of section 5 of the Act
of July 1, 1902, above quoted, it appears that counsel for the appellant are of
the opinion that “due process of law” is necessarily judicial
proceedings. We do not think so.

” ‘Due process of law,’ or ‘the law of the land’ (which means the same
thing), is not necessarily judicial proceedings: Private rights and the
enjoyment of property may be interfered with by the legislative or executive, as
well as the judicial, department of the Government. When it is declared that a
person shall not be deprived of his property without ‘due process of law,’ it
means such an exercise of the powers of government as [the settled maxims of law
permit and sanction, under such safeguards as] these maxims prescribe for the
class of cases to which the one in question belongs. (Cooley, Const. Lim., 356.)
This constitutional guaranty, which is as old as Magna Charta, as it is found in
this or an equivalent form in every American constitution, is intended to secure
the citizen from the arbitrary exercise of the powers of government,
unrestrained by the established principles of right and distributive justice.”
(State of Minnesota, ex rel Edward D. Chapman vs. State Board
of Medical Examiners, 34 Minn., 387, and cases cited.)

The procedure followed by the defendants constituted under the provisions of
section 3748 “due process of law” and, therefore, the search and seizure were
not “unreasonable” and a “warrant” was not necessary to justify their action. In
considering the foregoing provisions of the Code of Civil Procedure and the
Civil Code it must be borne in mind that section 3748 of the Revised Statutes of
the United States is the “supreme law of the land” on this subject, and that the
plaintiff had no “right, title, or interest” in the property now in
question.

Having held that the seizure of those articles which had been issued
originally by the United States Army to its soldiers, acquired by the plaintiff
through other parties than the United States Government, was unlawful, it is at
once apparent that the plaintiff can claim no damages for such seizure unless
there was a wanton abuse or excess of authority in making the seizure. None such
is claimed. As to those articles, the plaintiff was holding them unlawfully and
cannot be heard to complain if his business was disturbed, in so far as there
may have been a reasonable necessity therefor during the process of seizure.
From the evidence of record there is no substantial ground for concluding that
the search for and seizure of those articles was not conducted in the manner
least calculated to disturb the plaintiff’s business, consistent with the object
to be attained.

As to those articles seized which were admitted by the defendants not to
belong to the United States Government, even though we were disposed to award
damages for such wrongful seizure, there appears to be no trustworthy basis upon
which they could be allowed. In two recent cases we discussed the question of
the allowance of damages to an established business, and there stated that
satisfactory evidence of the amount of business transacted before and after the
injury complained of must be submitted, as a general rule, in all such cases,
before damages can be awarded. (Tan Ti vs. Alvear, 26 Phil. Rep., 566;
Algarra vs. Sandejas, p. 284, ante.) No such evidence was
submitted in the case at bar. Furthermore, were such evidence before us, it
would be necessary to determine what portion thereof was occasioned by the
seizure which was lawful, as distinguished from the damages caused by the
seizure which subsequently proved to be unlawful. In some jurisdictions this
might be a case for the award of at least nominal damages for the articles
wrongfully seized. But merely nominal damages are never considered in this
jurisdiction. (Algarra vs. Sandejas, supra.) Under all the
circumstances of this case and after a careful examination of the evidence
before us, we are of the opinion that no adequate and reliable basis for the
assessment of damages is available. Fees of plaintiff’s attorney in recovering
his property cannot be considered as an element of damages in this jurisdiction.
(Tan Ti vs. Alvear, supra.)

Arellano, C. J., and Araullo, J., concur.

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^[1] March 28, 1914.

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CARSON, J.

I concurred in the disposition of this case in the “short opinion” and did so
on grounds substantially similar to those set forth in the foregoing extended
opinion prepared by Justice Trent. I reserve my opinion, however, as to some of
the propositions advanced in that opinion which I do not deem essential to the
argument in support of the judgment heretofore entered in pursuance of the
disposing part of the “short opinion.”

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MORELAND, J.

I dissent.

It is a fact undisputed by the parties that a file of soldiers under the
orders of the defendants forcibly entered plaintiff’s store, without process of
any court authorizing them to do so, substantially took possession thereof and
its contents, and, by force and against the will and in spite of the protests of
the plaintiff, removed therefrom the articles which are the subject matter of
this litigation. The only defense is that such a procedure is authorized by
section 3748 of the Revised Statutes of the United States.

I do not believe that that section is in force in the Philippine Islands.
There has been no Act of Congress making it effective here. It is in derogation
of the natural and legal rights of citizens, is, in effect, a bit of martial law
injected into a government of civil law, and its sphere of operation should not
be extended by implication. The laws of the Philippine Islands are sufficient to
protect the United States in its property and property rights, and laws of the
character of the section referred to should not be made applicable in this
jurisdiction without clear direction of the legislative will.