us vs addison

7/31/2019 US vs Addison

1/6

December 3, 1914

G.R. No. L-9951

THE UNITED STATES

, plaintiff-appellee,

vs.

A. A. ADDISON

, defendant-appellant.

W. H. Booram for appellant.

Office of the Solicitor-General Corpus for appellee.

TRENT,J.:

The defendant A. A. Addison, having been condemned to pay a fine of P100, to

indemnify the injured party in the sum of P500, with subsidiary imprisonment in

case of insolvency, and to the payment of the costs of the cause, for a violation of

the provisions of section 106 of General Orders No. 58, appealed to this court.

On the 23rd of December, 1912, the appellant subscribed and swore to an affidavit

wherein he stated that on or about the 20th of that month at 8.30 a.m. he saw

various bottles containing compounds of opium in an aparadorsituated in the

upstairs sala of the house of John McStay in Lucena, Tayabas. On the same day the

Court of First Instance issued a search warrant, based upon the affidavit, directing

the sheriff to search the house of McStay and seize proceeded immediately to

search the house, but found nothing of a contraband nature, and so reported to the

court. Subsequent thereto, and on th e 3d day of January, 1913, John McStay filed a

sworn complaint (denuncia), charging the appellant with the "crime of malicious

prosecution" and alleging that the appellant did, on the 23d of December, 1912,

willfully and maliciously, with the sole intent and purpose of gratifying his personal

resentment against the complainant, procure and obtain, without any probablecause whatever, a search warrant "of the person, residence, and place of business

of the undersigned, by signing and swearing before the Honorable Herbert D. Gale,

judge of the Court of First Instance, certain malicious, false, and defamatory

statements, known to be false and defamatory by said accused." On the 11th of

April, 1913, the provincial fiscal filed a formal complaint against the appellant

charging him with the same crime and setting forth the same allegations as in the

complainant's denuncia. After trial, the judgment above stated was duly entered.

For the purpose of showing that the search warrant was procured "maliciously and

without probable cause," the prosecution presented seven witnesses, who testified

substantially as follows:

Juan Merchan, clerk of the court, and Agapito Villasenor, sheriff, testified only in

reference to the filing of the affidavit upon which the search warrant was based, the

issuing of the warrant, and the search of the complainant's premises.

John McStay, the complainant, testified that for some time prior to the 23d of

December, 1912, he was running a hotel and canteen in Lucena, Tayabas; that the

appellant lived in his hotel from the 28th of September until the 23rd of December;

that on the 23rd of December the appellant left his hotel on account of certain

disturbances which occurred therein on the previous night; that these disturbances

were caused by three of four guests, ad disturbed the appellant's sleep; that on the

following day the appellant had a quarrel with one of these guests; that at the time

he left he was angry and stated that he desired to leave the hotel and would

arrange his account on the following day; that when he (the witness) bought the

hotel he also bought the beds and the aparadores; and that he and the appellant

were friends, never having had any trouble. As to the damages suffered by the

complainant on account of the search of his premises, he stated that some persons

did not know whether he was guilty or not, and, therefore, stayed away from his

hotel during those days, resulting in damaging him in the sum of P500.

James R. Gittings testified that he was one of the persons who were making the

noise in the hotel on the night of the 22nd, while the appellant was sleeping

upstairs; that the appellant called their attention to these disturbances and asked

them to stop so that he could sleep; and that on the following day he and the

appellant had a quarrel.

Thomas Hoey, an internal-revenue agent, testified that he accompanied the sheriff

at the time the complainant's hotel was searched; and that he induced the

appellant to present the affidavit upon which the search warrant was based, after

the appellant had stated to him that opium could be found in McStay's possession.

Guy B. Shiller, principal of the Lucena High School, testified that he had a

conversation with the appellant and Hoey at the government building, and that he

heard Hoey ask the appellant if the latter would make an affidavit for the purpose of

securing the search warrant, and the appellant answered that he would.

Jose Nieva, an employee in the Bureau of Agriculture, stated that he was acquainted

with Benigna Robles, a witness for the defendant; that on the 24th of December he

returned to Lucena from Manila, and that when the train stopped at Calamba about

10 a.m., he saw Benigna Robles in the train.

The defense presented four witnesses; Joseph Rosemblatt, Charles R. Duffin,

Benigna Robles, and the appellant.

Rosemblatt testified that he lived in Lucena up until some time in the month of

August, 1912; that at the time a Mr. Salmon owned the canteen and hotel which

was searched by the sheriff; that he was in an automobile accident when one of the

passengers had his arm dislocated and, upon returning to Lucena after the accident,

they went to the drug store to get some opium liniment; the pharmacist refused to

sell them this medicine without a doctor's prescription; that the following day we

went to the canteen, which was located in the hotel, and was then informed by a

Mr. Henson that the canteen had some 25 bottles of various kinds of medicines;

that these bottles were shown him in an aparador; and that on taking hold of one of

the bottles he discovered that it contained an opium mixture.

Duffin, who was a mechanical engineer at that time, stated that he knew the

canteen owner, at the time the search warrant was issued, to be McStay; that whenhe first knew the hotel; that he saw in this hotel on various occasions opium in an

aparador; and that this aparador was upstairs.

Benigna Robles testified that she was a dancing girl in McStay's salon in December,

1912; that two days before Christmas she saw Hoey and McStay talking together in

the hotel and heard Hoey use the word "Addison;" that after Hoey and McStay

terminated their conversation, Henson entered the room up stairs and took out of

the aparador some bottles and put them in his pocket; and that the same afternoon

the search was made.

Section 106 of General Orders No. 58 reads: "Any p erson who shall procure a

warrant maliciously and without probable cause, and any officer who shall

unlawfully exceed his authority or use unnecessary severity in executing the s

shall be punished by imprisonment for more than one year or by a fine of not

exceeding one thousand pesos, or by both such fine and imprisonment."

This section requires that both malice and absence of probable cause must ex

concurrently in order to justify a conviction. If the appellant's act in making th

affidavit was malicious and unfounded, but there was probable cause for such

he must be acquitted. "In a legal sense," says Greenleaf (vol. 2, sec. 453, 16th

"Any unlawful act done willfully and purposely to injury of another, is, as again

that person, malicious." Malice cannot be inferred from the fact that no opium

found in the house of the complainant by the sheriff diae7h.

Probable cause may be defined as such reasons, supported by facts and

circumstances, as will warrant a cautions man in the belief that his action, and

means taken in prosecuting it, are legally just and proper. (Burton vs. St. Paul,

M. Ry. Co., 33 Minn., 189.)

Addison lived in McStay's hotel from September 28 to December 23, when he

on account of certain disturbances in the hotel on the night of the 22nd. McSt

took no part in these dis turbances. He and Addison were, according to his ow

testimony, friends. But it is said that the fact that Addison in effect charged M

with the commission of a serious crime is inconsistent with the latter's testimo

the effect that they were friends. McStay said that they were friends, and he i

person who claims internal-revenue agent to make the affidavit. In so doing h

carrying out his obligation as an "informer," and as such informer he had reaso

cause to believe that he would be rewarded therefor in accordance with certa

provisions of the Opium Law.

Rosemblatt testified that he saw opium in the aparador before McStay bough

hotel. Duffin testified to the same effect and, also, that at the time he saw the

opium McStay was negotiating for the purchase of the hotel. Benigna Robles s

that she saw opium in the hotel two days before Christmas. She also testified

effect that McStay was notified of the issuance of a search warrant and caused

opium to be removed. The prosecution attempted to show that this witness w

in Lucena on the 23rd of December, and for this purpose presented Jose Nieva

testified that on his return to Lucena on the 24th he saw Benigna in the train a

Calamba. It does not appear that Ben igna could not have come to Manila on t

afternoon or night of the 23rd, or even on the morning of the 24th. We must,

therefore, conclude that there was an absence of malice on the part if the

defendant in making the affidavit and that there existed probable cause for mthe affidavit.

For the foregoing reasons the judgment appealed from is reversed and the

defendant acquitted, with costs de officio.

Arellano, C.J., Torres, Carson, Moreland and Araullo, JJ., concur. .


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G.R. No. L-16949 March 18, 1967

ROSALINA SANTOS, ETC., ET AL.,plaintiffs-appellees,vs.

THE HONORABLE SECRETARY OF PUBLIC WORKS AND

COMMUNICATIONS,defendant-appellant.

REGALA,J.:

This is an appeal taken directly to Us by the Solicitor General in behalf of

the Secretary of Public Works and Communications from the decision of the Court ofFirst Instance of Pampanga, setting aside the defendant-appellant's order in

Administrative Cases Nos. RA-2056-90-91 as null and void and making permanentthe writ of preliminary injunction theretofore issued.

On September 19, 1958, the then Senator Rogelio de la Rosa wrote aletter to the defendant Secretary of Public Works and Communications requesting

action by the latter on the petition of some residents of Sexmoan, Pampanga, thatcertain creeks, rivers and/or streams which were allegedly converted into fishpondsby certain parties, among them the plaintiffs-appellees, be reopened pursuant to

Republic Act No. 2056.

Acting on the said communication, Undersecretary of Public Works andCommunications Marciano Bautista designated Atty. Jesus Lazaro to investigate the

alleged encroachment of public navigable rivers, streams and waterways in Sexmoan,Pampanga. The cases, docketed as "Cases Nos. RA-2056-90-9l," concerned two (2)fishponds, one called "Mandayag," registered in the name of the late Maxima Santos

Vda. de Blas, whose estate is now under administration of the plaintiff-appelleeRosalina Santos, a niece of the said decedent, and the other called "Paculayo,"registered in the name of the spouses Jose S. Chivi, Jr. and Lydia R. Chivi, the otherplaintiffs-appellees in this case.

The investigator conducted several hearings and thereafter submitted areport to the defendant-appellant on January 29, 1959. On the basis of this report, thedefendant-appellant rendered a decision dated February 3, 1959, the dispositive part

of which reads as follows:

Premises considered it is hereby ordered:

(1) That respondent Rosalina Santos de la Paz remove

whatever fishpond constructions and/or works illegally placed on the bedof Sapang Mandayag and restore the channel of said stream to its original

condition;

(2) That respondents Jose Chivi, Jr. and Lydia R. Chiviremove all fishpond constructions and/or works placed across thePaculayo River and Paculayo Creek and restore the channels and/or bedsof said streams to their original condition; and

(3) That the above fishpond constructions and/or works beremoved within thirty (30) days from the date of receipt of the decision bythe respondents; otherwise, this Office or its duly authorized

representative shall remove the same at the expense of said respondentswithin ten (10) days after the expiration of the thirty-day period giventhem, without prejudice to instituting judicial proceedings against them

under the provisions of Section 3 of Republic Act No. 2056.

Not satisfied with the decision of the defendant-appellant, plaintiffs-appellees filed in the Court of First Instance of Pampanga a complaint with the

preliminary injunction "to declare null and void and without legal effect the decision

of the Secretary of Public Works and Communications and/or to declare Republic

Act No. 2056 unconstitutional." They alleged, among other things, that the fishpondswhich were the subject matter of the administrative investigation were their private

properties registered under the Land Registration Act; that Republic Act No. 2056 is

unconstitutional, being ex post facto and having delegated a purely judicial functionto administrative officials; that the complainants in the administrative case were notreal parties in interest and that the defendant-appellant had no authority whatsoever

to inquire into the titles of plaintiffs-appellees or otherwise conduct the investigationin question.

In his answer, defendant-appellant Secretary of Public Works and

Communications claimed that the trial court had no jurisdiction over the subjectmatter because plaintiff-appellees did not exhaust all administrative remedies; that

Republic Act No. 2056 was valid and constitutional; that under the principle ofseparation of powers, the judiciary is not authorized to inquire into, or interfere with,the exercise of executive functions and defendant-appellant's duties and authorityunder Republic Act No. 2056; that factual findings in administrative investigations

are conclusive upon courts; that the construction and encroachments ordereddemolished in defendant-appellant's decision in question were made by plaintiffs onpublic, navigable rivers, streams and creeks without proper authority and to the

detriment of public interest; and that the Torrens titles of plaintiffs-appellees to thefishponds in question do not include public streams, rivers, creeks and waterwaysfound therein and, that even supposing that their titles purport to cover such rivers,

streams, creeks and waterways, the registration and adjudication thereof in plaintiffs'name are illegal and null and void insofar as they include the said rivers, streams,

creeks and waterways.

After trial, the lower court rendered judgment declaring the decision ofdefendant-appellant null and void and making permanent the writ of preliminaryinjunction theretofore issued. It, however, disallowed plaintiffs-appellees' claim fordamages on the ground that defendant-appellant had acted in his official capacity.

Defendant-appellant brought this appeal on the following assignment oferrors:

1. The lower court erred in holding that although plaintiffs

have not appealed the defendant-appellant's decision to the President ofthe Philippines they are not precluded from bringing the action to the

court under the theory "that the Secretary of a Department is an alter ego

of the President," and that "the action of the defendant bears the impliedsanction of the President unless the same is disapproved by the latter.

2. The lower court erred in holding that defendant-appellant

committed "gross abuse of discretion" in investigating and rendering thedecision in the administrative case on the ground that he cannot review

and reverse the lawful actuations and final decisions of a court of justice

which granted the registration of the properties in question to plaintiffs.

3. The lower court erred in holding that Republic Act No. 2056which became effective on June 18, 1958 could not affect the plaintiffs'

fishponds constructed about a century ago; and that the prosecution ofplaintiffs-appellees renders it ex post facto.

The first assignment of error is without merit. It is now settled that

Department Secretaries are the alter ego of the President so that the decision ofSecretary of Public Works and Communications is presumed to be that of thePresident, unless disapproved (See, e.g., Villena vs. Sec. of the Interior, 67 Phil. 451;

Lovina vs. Moreno, G.R. No. No. L-17821, November 29, 1963).

But the second assignment is well taken. The trial court held tha

was "gross abuse of discretion" on the part of the defendant-appellant whordered the removal of fishpond constructions on the beds of Sapang Man

Paculayo River and Paculayo Creek because in so doing defendant-ap

reviewed and reversed the decision of a court of justice which ordereregistration of the properties under the Torrens system. In the case ofLov

Moreno, supra, this Court has held already that Republic Act No. 2056 do

constitute an unlawful delegation of judicial power to the Secretary of Public Wand that the silence of the Torrens title with regard to the existence of a navstream within a property does not preclude a subsequent investigatio

determination of its existence.

Indeed, the investigator found evidence of the existence of a Pa

River and Sapang Paculayo. His report states:

PACULAYO

The documentary evidence gathered prove to the existenonly of the Paculayo Creeks but also of a certain Paculayung Mara

River. The Blueprint Plan of a private land as surveyed for Lydia Ron July 18, 1956 and February 13, 1957 by Quintin A. Paredes whicapproved by the Director of Lands on April 29, 1957, marked a

158623 (See Annex S) and Blueprint Plan of private land as surveySimeon Bias on December 9, 1928, by M.G. Espinosa and approvAugust 20, 1930 by the Director of Lands for Psu 71475 (See Anne

conclusively proved that Paculayo River was 100 meters wide and SPaculayung Maragul was 30 meters wide and now enclosed fishpond now owned by the respondent Lydia R. Chivi.

As to the navigability of the said Paculayo River and SPaculayo, the same has been proven by the testimonies of Mr.Bengco and Pablo Lucas. ...

x x x

However, at the Sexmoan Cadastre CM 14'52'N-12(hereto attached as Annex T) made by the Bureau of Lands as a resu

survey conducted sometime in 1956, the Paculayo River anPaculayung Malati does not exist anymore for it is enclosed

fishponds of respondent Lydia R. Chivi and Rosalina Santos. In An1, it also clearly appears that a portion of the Paculayo River and S

Paculayo, formerly exist and is navigable at the time it was ilappropriated by the respondent.

These findings are supported by evidence in the record and, in the a

of any illegality, error of law, fraud, or imposition, which have not been shothis case, should be respected. (Lovina vs. Moreno, supra). Consequently, thbelow erred in declaring null and void the entire decision of the Secretary of

Works and Communications.

With respect to Sapang Mandayag, however, the investigator fa

determine its exact location, width and length. Thus, in his report, he states: .

MANDAYAG

In the ocular inspection ... it was found out by the Investithat the alleged Sapang Mandayag is between the fishponds of GrMangalindan and the fishpond of respondent Maxima Vda. de

where Rosalina Santos is now the respondent being the executrixtestate estate. The source of the water of the Sapang Mandayag Pampanga River, the direction is leading to Don Tomas Creek


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Sapang Mandayag has a width from bank to bank of about 10 to 20

meters; and the water flows without obstruction and is passable by banca.From the mouth of the Sapang Mandayag up to a length of at least a

kilometer, another dike of the respondent is constructed directly across the

Sapang Mandayag.

Even the evidence submitted by the respondent which is acopy of the Original Certificate of Title No. 432, it appears that Lot No. 2

is bounded on the north by Sapang Maliit which is 6 meters wide; on thenortheast, by Sapang Don Tomas, which is 25-30 meters wide; on thesoutheast, by Sapang Don Tomas and property of Simeon Carlos, now

owned by Maxima Santos Vda. de Blas, the Sapang Batasan, 10 meterswide and the Sapang Maliit, 6 meters wide.

In the trace copy of a plan of private land as surveyed for

Maxima Santos Vda. de Blas, as surveyed on April 5, 6, and 7, 1950 byTimoteo Certeza for Psu 126222, which is sheet No. 2 (see Annex R,roughly traced by the undersigned) of the 7 sheets now on file on the

Record Section of the Bureau of Lands, the Sapang Batasan, and SapangMaliit clearly appears. However, in the attached Sexmoan Cadastre MapCM 1454'N-120 36'E, CM 14o54 N-120 37'E, CM 14o 55'N-120 36'E

and CM 1455'N- 12037'E, which was made as a result of a surveyconducted by the Bureau of Lands sometime in 1956, the Sapang Batasanwhich is 10 meters wide and the Sapang Maliit, 6 meters wide, does not

exist anymore. However, the complaint is about the enclosure and/or

encroachment of a certain Sapang Mandayag, the portion of which is stillexisting as appearing in the attached Sexmoan Cadastre and there is no

evidence gathered or presented to prove the exact location of the missingchannel or bed of the Sapang Mandayag. As to the navigability of theSapang Mandayag, in the ocular inspection conducted by theinvestigators, it was found out that the Mandayag River is still navigable.

As a conclusion, therefore, based on the evidence gathered orpresented, the undersigned believe that there was once a SapangMandayag which is navigable, only the exact location, width and length

of the said Sapang Mandayag cannot at present, be determined for lack ofevidence.

Investigator's recommendation:

As no conclusive evidence has been gathered or presented toprove the exact location, width and length of the channel of the SapangMatua and Sapang Mandayag, and that the Ilog Calise is still existing

without any encroachment and/or closure, it is hereby recommended thata decision be rendered dismissing the complaint against the respondent

Rosalina Santos, as executrix of the Testate Estate of the late Maxima

Vda. de Blas without prejudice.

We, therefore, agree that the complaint against Rosalina Santos, asexecutrix of the Testate Estate of the late Maxima Vda. de Blas, with regard to

fishpond "Mandayag," be dismissed without prejudice to a further reinvestigation. Indoing so, We merely accord to plaintiff-appellee what in Ang Tibay v . Court of

Industrial Relations, 69 Phil. 635, was described as her "cardinal primary right" in an

administrative proceeding to have a decision rendered on the evidence presented atthe hearing, or at least contained in the record and disclosed to the parties affected.

We also find merit in the third assignment of error. The trial court held

that the prosecution of the plaintiffs-appellees under section 3 of Republic Act No.2056 which took effect on June 13, 1958, for acts done half a century earlier, makes

the Act ex post facto. We do not agree with the trial court on this point. A

constitutional provision that no ex post facto law shall be enacted is applicable only

to criminal cases. (Roman Catholic Bishop of Lipa v. Municipality of Taal, 38 Phil.367; Prov. of Camarines Sur v. Director of Lands, 64 Phil. 600; Philippine NationalBank v. Ruperto, G.R. No. L-13777, June 30, 1960) Plaintiffs-appellees are not being

criminally prosecuted for constructing dikes; they are merely being ordered by theSecretary of Public Works and Communications to demolish the illegal constructionson the channels of public navigable rivers and/or streams. As to the constructions in

the past, Republic Act No. 2056 merely authorizes their summary demolition aspublic nuisances by orders of the Secretary of Public Works and Communicationsafter complying with due process. Here is no exercise by the State of the coercive

power of its criminal law. Here is merely the invocation of an authority which, as

noted in Lovina, was already granted the public works official as early as Act No.3208 of the Philippine Legislature.

Wherefore, the decision appealed from is reversed as far as fishpond"Paculayo" is concerned and the writ of injunction issued therein is annulled and setaside, but it is affirmed with respect to fishpond "Mandayag", as to the location,

length and width of which no substantial evidence has been found by the Department

of Public Works and Communications. Costs against the appellees, Jose S. Chivi, Jr.and Lydia R. Chivi.

A.M. No. 486-MJ September 13, 1977

JOSE MARIA ANTONIO FERNANDEZ, complainant,

vs.JUDGE JULIO PRESBITERO, Municipal Judge of Pulupandan, Negros

Occidental, respondent.

CONCEPCION JR.,J.:

Administrative case against a municipal judge for grave misconduct,

partiality, and oppression, for having conducted the preliminary examination of acriminal case at night, and at the private residence of a relative of the political

opponent of the herein complainant's father, about three (3) to four (4) kilometers

from the town hall; thereafter issuing the warrant for the arrest of the complainant,knowing that the next and succeeding clays are religious and public holidays whengovernment and other offices are closed, thus precluding the seasonal filing of a bail

bond; and recommending the criminal prosecution of complainant's father who is nota party to the criminal case and had no opportunity to reexamine the witnesses.

The case was referred to the Executive Judge of the Court of First

Instance of the province, for investigation, report and recommendation, 1 who, after aproper hearing, found the respondent judge guilty of partiality and recommended thesuspension of the respondent judge from office for a period of two (2) months,

without pay. 2

The Judicial Consultant, however, recommends the imposition of a lesserpenalty of reprimand, for the reason that respondent judge acted in good faith. 3

The facts of the case are not disputed. It appears that a stabbing incident,involving herein complainant, Jose Maria Antonio Fernandez, son of the incumbentMunicipal Mayor Joaquin O. Fernandez, and one Francisco Bescaser, took place at

Veraguth St., Pulupandan, Negros Occidental, at about 9:00 o'clock in the evening of

April 16, 1973. The next day, April 17, 1973, agents of the PC Criminal Investigation

Service (CIS) investigated herein complainant Fernandez, after which complainant

was sent home. Complainant, however, was directed not to leave his house.

On the following day, April 18, 1973, Holy Wednesday, the CIS a

together with Francisco Bescaser and the latter's witnesses, went to the Mu

Court of Pulupandan to file a complaint for attempted murder against the

complainant Fernandez. The respondent, Judge Julio V. Presbitero of the Mu

Court of Pulupandan Negros Occidental, was not in his office as, according to in the office of the Municipal Court, the respondent judge was then hearing a cthe Municipal Court of Murcia, Negros Occidental. At the suggestion of on

Yap, the group proceeded to the house of one Mario Pea, a relative of the po

opponent of complainant's father, at Barrio Ubay, Pulupandan about three (3)

(4) kilometers from the town hall of Pulupandan. At about 5:45 o'cloc

afternoon, the CIS team sent a man to fetch the respondent judge from his ho

Barrio Palaka, Valladolid, Negros Occidental, and take him to the house of Pea at Barrio Ubay because they were riling a case with the Municipal C

Pulupandan.

The respondent judge arrived at the house of Mario Pea at abouo'clock that evening, together with his clerk, Miss Elsie P. Java, bringing wit

the Criminal Docket and Seal of the Municipal Court of Pulupandan. 4Upon the respondent judge was presented with a copy of the criminal complaint aaffidavits of witnesses. Despite the fact that these affidavits 5 have been pre

subscribed and sworn to before Asst. Provincial Fiscal Othello Amunategrespondent judge, with the help of his clerk, personally took anew the statements of Francisco Bescaser and his witnesses. 6 The complaint was the

entered in the Docket as Crim. Case No. 1046, following which the respondenissued a warrant for the arrest of the complainant and fixing the bail bond f

temporary release at P15,000.00. By virtue of the warrant, the herein comp

was arrested by CIS agents on April 19, Maundy Thursday of the Holy Weedetained at the PC Stockade at Bacolod City.

After the preliminary investigation of the case, a motion to dismcase was filed, which motion was duly opposed by the prosecution. In his

dated July 9, 1973,7

denying the said motion to dismiss the case, the resp

judge, relying upon the testimony of Francisco Bescaser implicating Mayor JFernandez in the killing of one Yanson, strongly recommended the investigat

said killing by investigative agencies of the government, finishing the Chief Jthe Secretary of National Defense, the Secretary of Justice, and the ExeSecretary with a copy of said order.

The respondent judge testifies his actions, saying that he wan

conduct the preliminary examination of the criminal case against Fernandezcourtroom during regular office hours and had told the CIS agents of his desi

relented when he recalled that there were no lights in the courtroom, and soundness in the argument of the CIS agents of the urgency of the need fwarrant of arrest to be issued that night in order to discontinue the harassment

witnesses by the Mayor of Pulupandan.

This contention may be valid if the criminal case was filed againMayor of Pulupandan for then the harassment of witnesses may cease upon his

The criminal case, however, is against the son of the mayor, whose arrest mprevent the mayor from harassing the witnesses.

The respondent's act of vehemently recommending the investiga

the circumstances surrounding the death of one Yanson, contained in the orJuly 9, 1973, may also be considered an indication of respondent's partialittestimony before the Investigator in this regard, is most revealing. He decla

follows:

BY THE COURT


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Q. Judge Presbitero, why is it in your order denying the motion

to dismiss by accused Jose Maria Antonio Fernandez in Crim. Case No.1046 issued on July 9, 1973, you have alluded to the municipal mayor of

Pulupandan who was not the accused in that Crim. Case No. 1046?

A. Because in the motion, Your Honor, the integrity of thetrying judge, Your Honor, was mentioned. So I have to answer thosepoints, Your Honor, in the motion filed by Atty. Benito.

Q. Why did you include, that?

A. But, Your Honor, I have to.

Q. That shows that you have an axe to gripe against at the

mayor?

A. But, Your Honor, precisely in that motion there was anallusion to the presiding judge as being antagonistic. I have to defend

myself.

Q. But not in the kind of complaint?

A. I was attacked, Your Honor, by the lawyer in his motion todismiss. Naturally, I have to defend myself.

Q. Yes, you could have cited that lawyer but not in your order?

A. Because these points were raised. 8

At any rate, it "has always been stressed that judges should not only beimpartial but should also appear impartial. For 'impartiality is not a technical

conception. It is a state of mind' and, consequently, the `appearance of impartiality isan essential manifestation of its reality.' It must be obvious, therefore, that while

judges should possess proficiency in law in order that they can competently construe

and enforce the law, it is more important that they should act and behave in such amanner that the parties before them should have confidence in their impartially." 9

Here, the actuations of the respondent judge, in holding the preliminary

examination of the criminal case in the residence of a relative of a political opponentof the father of the accused, about three (3) to four (4) kilometers from thecourthouse, at night, cannot but lead to a suspicion of partiality. The respondent

judge should have exercised due prudence in the discharge of his officials duties.

WHEREFORE, judgment is hereby rendered ordering the respondent,Judge Julio V. Presbitero of the Municipal Court of Pulupandan Negros Occidental,

to pay a fine equivalent to his salary for two (2) months.

SO ORDERED.

165 U.S. 275 (1897)

ROBERTSON et al.

v.

BALDWIN.No. 334.

January 25, 1897

This was an appeal from a judgment of the district court for the Northern

district of California, rendered August 5, 1895, dismissing a writ of habeas corpus

issued upon the petition of Robert Robertson, P. H. Olsen, John Bradley, and Morris

Hanson.

The petition set forth, in substance, that the petitioners were unlawfully

restrained of their liberty by Barry Baldwin, marshal for the Northern district of

California, in the county jail of Alameda county, by virtue of an order of

commitment, made by a United State commissioner, committing them for trial upon

a charge of disobedience of the lawful orders of the master of the American

barkentine Arago; that such com- [165 U.S. 275, 276] mitment was made without

reasonable or probable cause, in this: that at the time of the commission of the

alleged offense, petitioners were held on board the Arago against their will and by

force, having been theretofore placed on board said vessel by the marshal for thedistrict of Oregon, under the provisions of Rev. St 4596, subd. 1, and Id. 4598, 4599,

the master claiming the right to hold petitioners by virtue of these acts; that sections

4598 and 4599 are unconstitutional, and in violation of section 1 of article 3, and of

the fifth amendment to the constitution; that section 4598 was also repealed by

congress on June 7, 1872 (17 Stat. 262); and that the first subdivision of section 4596

is in violation of the thirteenth amendment, in that it compels involuntary servitude.

The record was somewhat meager, but it sufficiently appeared that the

petitioners had shipped on board the Arago at San Francisco for a voyage to

Knappton, in the state of Washington, thence to Valparaiso, and thence to such other

foreign ports as the master might direct, and return to a port of discharge in the

United States; that they had each signed shipping articles to perform the duties of

seamen during the course of the voyage, but, becoming dissatisfied with their

employment, they left the vessel at Astoria, in the state of Oregon, and were

subsequently arrested, under the provisions of Rev. St. 4596-4599, taken before a

justice of the peace, and by him committed to jail until the Arago was ready for sea(some 16 days), when they were taken from the jail by the marshal, and placed on

board the Arago against their will; that they refused to 'turn to,' in obedience to the

orders of the master, were arrested at San Francisco, charged with refusing to work,

in violation of Rev. St. 4596, were subsequently examined before a commissioner of

the circuit court, and by him held to answer such charge before the district court for

the Northern district of California.

Shortly thereafter they sued out this writ of habeas corpus, which, upon a

hearing before the district court, was dismissed, and an order made remanding the

prisoners to the custody of the marshal. [165 U.S. 275, 277] Whereupon petitioners

appealed to this court.

J. H. Ralston, for appellants.

Sol. Gen. Conrad, for appellee.

Mr. Justice BROWN, after stating the facts in the foregoing language,

delivered the opinion of the court.

Upon what ground the court below dismissed the writ and remanded the

petitioners does not appear, but the record raises two questions of some importance:

First, as to the constitutionality of Rev. St. 4598, 4599, in so far as they confer

jurisdiction upon justices of the peace to apprehend deserting seamen, and return

them to their vessel; second, as to the conflict of the same sections, and also section

4596, with the thirteenth amendment to the constitution, abolishing slaver

involuntary servitude.

Section 4598, which was taken from section 7 of the act of July 20

reads as follows:

'Sec. 4598. If any seaman who shall have signed a contract to perf

voyage shall, at any port or place desert, or shall absent himself from such

without leave of the master, or officer commanding in the absence of the ma

shall be lawful for any justice of the peace within the United States, up

complaint of the master, to issue his warrant to apprehend such deserter, and

him before such justice; and if it then appears that he has signed a contract wit

intent and meaning of this title, and that the voyage agreed for is not finish

altered, or the contract otherwise dissolved, and that such seaman has desert

vessel, or absented himself without leave, the justice shall commit him to the

of correction or common jail of the city, town or place, to remain there un

vessel shall be ready to proceed on her voyage, or till the master shall requ

discharge, and then to be delivered to the master, he paying all the cost o

commitment, and deducting the same out of the wages due to such seaman

U.S. 275, 278] Section 4599, which was taken for section 53 of the sh

commissioners' act of June 7, 1872, authorizes the apprehension of deserting se

with or without the assistance of the local public officers or constables, and wit

warrant, and their conveyance before any court of justice or magistrate of the s

be dealt with according to law.

Section 4596, which is also taken from the same act, provides punis

by imprisonment for desertion, refusal to join the vessel, or absence without lea

1. The first proposition, that congress has no authority undconstitution to vest judicial power in the courts or judicial officers of the s

states, originated in an observation of Mr. Justice Story, in Martin v. H

Lessees, 1 Wheat. 304, 330 to the effect that 'congress cannot vest any portion

judicial power of the United States, except in courts ordained and establis

itself.' This was repeated in Houston v. Moore, 5 Wheat. 1, 27; and the same g

doctrine has received the approval of the courts of several of the states. U

Lathrop, 17 Johns. 4; Ely v. Peck, 7 Conn. 239; U. S. v. Campbell (Ohio Com

Hall, Law J. 113. These were all actions for penalties, however, wherein the

held to the familiar doctrine that the courts of one sovereignty will not enfor

penal laws of another. Huntington v. Attrill, 146 U.S. 657, 672 , 13 S. Sup. C

In Com. v. Feely, 1 Va. Cas. 325, it was held by the general court of Virg

1813, that the state courts could not take jurisdiction of an indictment for a

committed against an act of congress.

In Ex parte Knowles, 5 Cal. 300, it was also held that congress h

power to confer jurisdiction upon the courts of a state to naturalize aliens, althif such power be recognized by the legislature of a state, it may be exercised

courts of such state of competent jurisdiction.

In State v. Rutter, 12 Niles, Reg. 115, 231, it was held, in 1817, by

Bland and Hanson, of Maryland, that congress had no power to authorize justi

the peace to issue warrants for the apprehension of offenders against the laws o
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U.S. 275, 279] the United States. A directly contrary view, however, was taken by

Judge Cheves, of South Caro lina, in Ex parte Rhodes, 12 Niles, Reg. 264.

The general principle announced by these cases is derived from the third

article of the constitution, the first section of which declares that 'the judicial power

of the United States shall be vested in one supreme court, and in such inferior courts

as the congress may from time to time ordain and establish,' the judges of which

courts 'shall hold their offices during good behavior,' etc.; and, by the second section,

'the judicial power shall extend to all cases, in law and equity, arising under this

constitution, the laws of the United States, and treaties made, or which shall be made,

under their authority; to all cases affecting ambassadors, other public ministers and

consuls; to all cases of admiralty and maritime jurisdiction; to controversies to whichthe United States shall be a party; to controversies between two or more states;

between a state and citizens of another state; between citizens of different states;

between citizens of the same state claiming lands under grants of different states, and

between a state or the citizens thereof, and foreign states, citizens or subjects.'

The better opinion is that the second section was intended as a

constitutional definition of the judicial power (Chisholm v. Georgia, 2 Dall. 419,

475), which the constitution intended to confine to courts created by congress; in

other words, that such power extends only to the trial and determination of 'cases' in

courts of record, and that congress is still at liberty to authorize the judicial officers

of the several states to exercise such power as is ordinarily given to officers of courts

not of record,-such, for instance, as the power to take affidavits, to arrest and commit

for trial offenders against the laws of the United States, to naturalize aliens, and to

perform such other duties as may be regarded as incidental to the judicial power

rather than a part of the judicial power itself. This was the view taken by the supreme

court of Alabama in Ex parte Gist, 26 Ala. 156, wherein the authority of justices ofthe peace and other such officers to arrest and commit for a violation of the criminal

law of the United States [165 U.S. 275, 280] was held to be no part of the judicial

power within the third article of the constitution. And in the case of Prigg v.

Pennsylvania, 16 Pet. 539, it was said that, as to the authority conferred on state

magistrates to arrest fugitive slaves and deliver them to their owners, under the act of

February 12, 1793, while a difference of opinion existed and might still exist upon

this point in different states, whether state magistrates were bound to act under it, no

doubt was entertained by this court that state magistrates might, if they chose,

exercise the authority, unless prohibited by state legislation. See, also, Moore v.

Illinois, 14 How. 13; In re Kaine, Id. 103.

We think the power of justices of the peace to arrest deserting seamen and

deliver them on board their vessel is not within the definition of the 'judicial power'

as defined by the constitution, and may be lawfully conferred upon state officers.

That the authority is a most convenient one to intrust to such officers cannot be

denied, as seamen frequently leave their vessels in small places, where there are nofederal judicial officers, and where a justice of the peace may usually be found, with

authority to issue warrants under the state laws.

2. The question whether sections 4598 and 4599 conflict with the

thirteenth amendment, forbidding slavery and involuntary servitude, depends upon

the construction to be given to the term 'involuntary servitude.' Does the epithet

'involuntary' attach to the word 'servitude' continuously, and make illegal any service

which becomes involuntary at any time during its existence? or does it attach only at

the inception of the servitude, and characterize it as unlawful because unlawfully

entered into? If the former be the true construction, then no one, not even a soldier,

sailor, or apprentice, can surrender his liberty, even for a day; and the soldier may

desert his regiment upon the eve of battle, or the sailor abandon his ship at any

intermediate port or landing, or even in a storm at sea, provided, only, he can find

means of escaping to another vessel. If the latter, then an individual may, for a

valuable consideration, contract for the surrender of his personal liberty for a definite

time and for a recognized purpose, and subordinate his going and coming to the will

of [165 U.S. 275, 281] another during the continuance of the contract; not that all

such contracts would be lawful, but that a servitude which was knowingly and

willingly entered into could not be termed 'involuntary.' Thus, if one should agree,

for a yearly wage, to serve another in a particular capacity during his life, and neverto leave his estate without his consent, the contract might not be enforceable for the

want of a legal remedy, or might be void upon grounds of public policy; but the

servitude could not be properly termed 'involuntary.' Such agreement for a limited

personal servitude at one time were very common in England, and by statute of June

17, 1823 (4 Geo. IV. c. 34, 3), it was enacted that if any servant in husbandry, or any

artificer, calico printer, handcraftsman, miner, collier, keelman, pitman, glassman,

potter, laborer or other person, should contract to serve another for a definite time,

and should desert such service during the term of the contract, he was made liable to

a criminal punishment. The breach of a contract for personal service has not,

however, been recognized in this country as involving a liability to criminal

punishment, except in the cases of soldiers, sailors, and possibly some others; nor

would public opinion tolerate a statute to that effect.

But we are also of opinion that, even if the contract of a seaman could be

considered within the letter of the thirteenth amendment, it is not, within its spirit, a

case of involuntary servitude. The law is perfectly well settled that the first 10amendments to the constitution, commonly known as the 'Bill of Rights,' were not

intended to lay down any novel principles of government, but simply to embody

certain guaranties and immunities which we had inherited from our English

ancestors, and which had, from time immemorial, been subject to certain well-

recognized exceptions, arising from the necessities of the case. In incorporating these

principles into the fundamental law, there was no intention of disregarding the

exceptions, which continued to be recognized as if they had been formally expressed.

Thus, the freedom of speech and of the press ( article 1) does not permit the

publication of libels, blasphemous or indecent articles, or other publications injurious

to public morals or private reputation; the right of the people [165 U.S. 275, 282] to

keep and bear arms (article 2) is not infringed by laws prohibiting the carrying of

concealed weapons; the provision that no person shall be twice put in jeopardy

(article 5) does not prevent a second trial, if upon the first trial the jury failed to

agree, or if the verdict was set aside upon the defendant's motion (U. S. v. Ball, 163

U.S. 662, 627 , 16 S. Sup. Ct. 1192); nor does the provision of the same article that

no one shall be a witness against himself impair his obligation to testify, if a

prosecution against him be barred by the lapse of time, a pardon, or by statutory

enactment (Brown v. Walker, 161 U.S. 591 , 16 Sup. Ct. 644, and cases cited). Nor

does the provision that an accused person shall be confronted with the witnesses

against him prevent the admission of dying declarations, or the depositions of

witnesses who have died since the former trial.

The prohibition of slavery, in the thirteenth amendment, is well kno

have been adopted with reference to a state of affairs which had existed in

states of the Union since the foundation of the government, while the addition

words 'involuntary servitude' were said, in the Slaughterhouse Cases, 16 Wall.

have been intended to cover the system of Mexican peonage and the Chinese

trade, the practical operation of which might have been a revival of the institu

slavery under a different and less offensive name. It is clear, however, th

amendment was not intended to introduce any novel doctrine with respect to

descriptions of service which have always been treated as exceptional, su

military and naval enlistments, or to disturb the right of parents and guardians

custody of their minor children or wards. The amendment, however, mak

distinction between a public and a private service To say that persons engagepublic service are not within the amendment is to admit that there are except

its general language, and the further question is at once presented, where sh

line be drawn? We know of no better answer to make than to say that services

have from time immemorial been treated as exceptional shall not be regar

within its purview.

From the earliest historical period the contract of the sailor [165 U.S

283] has been treated as an exceptional one, and involving, to a certain exte

surrender of his personal liberty during the life of the contract. Indeed, the b

of navigation could scarcely be carried on without some guaranty, beyo

ordinary civil remedies upon contract, that the sailor will not desert the shi

critical moment, or leave her at some place where seamen are impossible

obtained,-as Molloy forcibly expresses it, 'to rot in her neglected brine.

desertion might involve a long delay of the vessel while the master is seeking a

crew, an abandonment of the voyage, and, in some cases, the safety of the ship

Hence, the laws of nearly all maritime nations have made provision for securpersonal attendance of the crew on board, and for their criminal punishme

desertion, or absence without leave, during the life of the shipping articles.

Even by the maritime law of the ancient Rhodians, which is suppo

antedate the birth of Christ by about 900 years, according to Pardessus ( Loi

vol. 1, p. 250), if the master or the sailors absented themselves by night, an

vessel were lost or damaged, they were bound to respond in the amount of the l

In the compilation of maritime laws, known as the 'Consulate of th

it was also provided that a sailor should not go ashore without permission, up

penalty of being obliged to pay any damage occasioned by his absence, a

default of his being able to respond, of being thrust in prison until he had p

such damage. Chapters 121, 124; 2 Pard. Lois Mar. 146, 147, 148.

A like provision is found in the Rules of Oleron, promulgated in the

of Henry III., by which (article 5) the seamen were forbidden to leave th

without the master's consent. 'If they do, and by that means she happens to be

damnified, they shall be answerable for the damage.' 1 Pet. Adm. Append.

similar prohibition is found in article 17 of the Laws of Wisbuy. 1 Pet.

Append. lxxiii.

The laws of the towns belonging to the Hanseatic League, first e

and promulgated in 1597, were still more explicit and severe. No seaman mi

ashore without the consent [165 U.S. 275, 284] of the master or other officer
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he remained longer than the time allowed was condemned to pay a fine or suffer an

imprisonment (articles 22 and 23); and, by article 40, if a seaman went ashore

without leave, and the ship happened to receive any damage, 'he shall be kept in

prison upon bread and water for one year,' and, if any seaman died or perished for the

want of the assistance of the absent seaman, the latter was subject to corporal

punishment; and, by article 43, 'if an officer or seaman quits a ship and conceals

himself; if afterwards he is apprehended, he shall be delivered up to justice to be

punished; he shall be stigmatized in the face with the first letter of the name of the

town to which he belongs.' 1 Pet. Adm. Append. cvi.

By the Marine Ordinance of Louis XIV., which was in existence at the

time the constitution was adopted (title 3, art. 3), 'if a seaman leaves a master without

a discharge in writing before the voyage is begun, he may be taken up and

imprisoned wherever he can be found, and compelled to restore what he has received,

and serve out the time for which he had engaged himself for nothing; and if he leaves

the ship after the voyage is begun, he may be punished corporally.' Article 5: 'After

the ship is laded, the seamen shall not go ashore without leave from the master, under

pain of five livres for the first fault; and may be punished corporally if they commit a

second.'

The present Commercial Code of France, however, makes no express

provision upon the subject; but by the general mercantile law of Germany ( article

532), 'the master can cause any seaman, who, after having been engaged, neglects to

enter upon or continue to do his duties, to be forcibly compelled to perform the

same.'

By the Dutch Code (article 402) 'the master, or his representative, can call

in the public force against those who refuse to come on board, who absent

themselves from the ship without leave, and refuse to perform to the end of the

service for which they were engaged.'

Nearly all of the ancient commercial codes either make provision for

payment of damages by seamen who absent [165 U.S. 275, 285] themselves from

their ships without leave, or for their imprisonment, or forcible conveyance on board.

Some of the modern commercial codes of Europe and South America make similar

provisions. Argentine Code, art. 1154. Others, including the French and Spanish

Codes, are silent upon the subject.

Turning, now, to the country from which we have inherited most

immediately our maritime laws and customs, we find that Malynes, the earliest

English writer upon the law merchant, who wrote in 1622, says in his Lex Mercatoria

(volume 1, c. 23), that 'mariners in a strange port should not leave the ship without

the master's license, or fastening her with four ropes, or else the loss falls upon them.

... In a strange country, the one-half of the company, at least, ought to remain on

shipboard, and the rest who go on land should keep sobriety and abstain fromsuspected places, or else should be punished in body and purse; like as he who

absents himself when the ship is ready to sail. Yea, if he give out himself worthier

than he is in his calling, he shall lose his hire,- half to the admiral, and the other half

to the master.' Molloy, one of the most satisfactory of early English writers upon the

subject, states that, if seamen depart from a ship without leave or license of the

master, and any disaster happens, they must answer, quoting article 5 of the Rules of

Oleron in support of his proposition.

There appears to have been no legislation directly upon the subject until

1729, when the act of 2 Geo. II. c. 36, was enacted 'for the better regulation and

government of seamen in the merchants' service.' This act not only provided for the

forfeiture of wages in case of desertion, but for the apprehension of seamen deserting

or absenting themselves, upon warrants to be issued by justices of the peace, and, in

case of their refusal to proceed upon the voyage, for their committal to the house of

correction at hard labor. Indeed, this seems to have furnished a model upon which the

act of congress of July 20, 1790 (1 Stat. 131), for the government and regulation of

seamen in the merchants' service, was constructed. The provisions of this act were

substantia lly repeated by the [165 U.S. 275, 286] act of 1791 (31 Geo. III. c. 39),

and were subsequently added to and amended by the acts of 5 & 6 Wm. IV. c. 19,

and 7 & 8 Vict. c. 112.

The modern law of England is full and explicit upon the duties and

responsibilities of seamen. By Merchants' Shipping Act 1854 (17 & 18 Vict. c. 104)

243, a seaman guilty of desertion might be summarily punished by imprisonment, by

forfeiture of his clothes and effects, and all or any part of his wages. Similar

punishment was meted out to him for neglecting or refusing to join his ship, or to

proceed to sea, or for absence without leave at any time. By section 246, 'whenever,

at the commencement or during the progress of any voyage, any seaman or

apprentice neglects, or refuses to join, or deserts serts from or refuses to proceed to

sea in any ship in which he is duly engaged to serve,' the master was authorized to

call upon the police officers or constables to apprehend him without warrant and take

him before a magistrate who, by article 247, was authorized to order him to be

conveyed on board for the purpose of proceeding on the voyage.

The provision for imprisonment for desertion seems to have been repealed

by the merchants' seamen (payment of wages and rating) act of 1880; but the tenthsection of that act retained the provision authorizing the master to call upon the

police officers or constables to convey deserting seamen on board their vessels.

This act, however, appears to have been found too lenient, since, in 1894,

the whole subject was reconsidered and covered in the new merchants' shipping act

(57 & 58 Vict. c. 60), of 748 sections, section 221 of which provides, not only for the

forfeiture of wages in case of desertion, but for imprisonment with or without hard

labor, except in cases arising in the United Kingdom. The provision for the arrest of

the deserting seaman, and his conveyance on board the ship, is, however, retained

both within and without the kingdom. Sections 222, 223. This is believed to be the

latest legislation on the subject in England.

The earliest American legislation which we have been able [165 U.S. 275,

287] to find is an act of the colonial general court of Massachuset ts, passed about

1668, wherein it was enacted that any mariner who departs and leaves a voyage upon

which he has entered shall forfeit all his wages, and shall be further punished by

imprisonment or otherwise, as the case may be circumstanced; and if he shall have

received any considerable part of his wages, and shall run away, he shall be pursued

as a disobedient runaway servant. Col. Laws Mass. (Ed. 1889) 251, 256.

The provision of Rev. St. 4598, under which these proceedings were

taken, was first enacted by congress in 1790. 1 Stat. 131, 7. This act provided for the

apprehension of deserters and their delivery on board the vessel, but apparently made

no provision for imprisonment as a punishment for desertion; but by the shipping

commissioners' act of 1872 (17 Stat. 243, 51), now incorporated into the R

Statutes as section 4596, the court is authorized to add to forfeiture of wag

desertion imprisonment for a period of not more than three months, and for a

without leave imprisonment for not more than one month. In this act an

amendments thereto very careful provisions are made for the protection of s

against the frauds and cruelty of masters, the devices of boarding-house keeper

as far as possible, against the consequences of their own ignoranc

improvidence. At the same time discipline is more stringently enforced by add

punishments for desertion, absence without leave, disobedience, insubordinatio

barratry. Indeed, seamen are treated by congress, as well as by the parliam

Great Britain, as deficient in that full and intelligent responsibility for the

which is accredited to ordinary adults, and as needing the protection of the lawsame sense in which minors and wards are entitled to the protection of their p

and guardians. 'Quemadmodum pater in filios, magister in discipulos, domi

servos vel familiares.' The ancient characterization of seamen as 'wards of adm

is even more accurate now than it was formerly.

In the face of this legislation upon the subject of desertion and a

without leave, which was in force in this country [165 U.S. 275, 288] for mo

60 years before the thirteenth amendment was adopted, and similar legislation

from time immemorial, it cannot be open to doubt that the provision

involuntary servitude was never intended to apply to their contracts.

The judgment of the court below is, therefore, affirmed.

us vs addison

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