Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-26979
April 1, 1927
THE GOVERNMENT OF THE PHILIPPINE ISLANS, plaintiffs, vs. MILTON MILTON E. SPINGER, ALAMACIO COSTAS, COSTAS, !"# ANSELMO HILARIO, defendants.
Attorney-General Attorney-General Jaranilla, F. C. Fisher, Fisher, and Hugh C. Smith for plaintiff. Jose Abad Santos; Ross, a!ren"e a!ren"e and Selph; #aredes, #aredes, $uen"amino and %ulo; %ulo; Araneta and &arago'a; &arago'a; Charles (. (. )enney; )enney; Camus, *elgado *elgado and Re"to and +ariano +ariano H. de Joya Joya for defendants. MALCOLM, J.:
This is an original action of uo !arranto brought !arranto brought in the name of the overnment of the Philippine !slands against three directors of the National Coal Compan" #ho #ere elected to their positions b" the legislative members of the committee created b" Acts. Nos. $%&' and $($$. The purpose of the proceeding is to test the validit" of the part of section ) of Act No. $%&', as amended b" section $ of Act No. $($$, #hich provides that *The voting po#er of all such stoc+ in the National Coal Compan"- o#ned b" the overnment of the Philippine !slands shall be vested eclusivel" in a committee consisting of the overnor/eneral, the President of the 0enate, and the 0pea+er of the 1ouse of Representatives.* Representatives.* The material facts are averred in the complaint of the plaintiff and admitted in the demurrer of the defendants. The National Coal Compan" is a corporation organi2ed and eisting b" virtue of Act No. $%&' of the Philippine 3egislature as amended b" Act No. $($$, and of the Corporation la#. B" the terms of the charter of the corporation, the overnor/eneral #as directed to subscribe on behalf of the overnment of the Philippine !slands for at least fift"/one per cent of the capital of the corporation. The government eventuall" became the o#ner of more than ninet"/nine per cent of the thirt" thousand outstanding shares of stoc+s of the National Coal Compan". 4nl" nineteen shares stand in the names of private individuals. 4n November 5, 65$7, the overnment/eneral overnment/eneral promulgated Eecutive 4rder No. 8%. Reference #as made therein to opinions of the 9udge Advocate eneral of the :nited 0tates Arm" and of the Acting Attorne"/eneral of the :nited 0tates #herein it #as held that the provisions of the statutes passed b" the Philippine 3egislature creating a voting committee or board of control, and enumerating the duties and po#ers thereof #ith respect to certain corporations in #hich the Philippine overnment is the o#ner of stoc+, are nullities. Announcement Announcement #as made that on account of the invalidit" of the portions of the Acts creating the voting committee or board of control, the overnor/eneral #ould, thereafter, eercise eclusivel"the duties and po#ers theretofore assumed b" the voting committee or board of control. Notice of the contents of this eecutive order #as given to the President of the 0enate and the 0pea+er of the 1ouse of Representatives. $) 4ff. a2., $)65.A special meeting of the stoc+holders of the National Coal Compan" #as called for ;ecember 7, 65$7, at 8 o8& p. m., on ;ecember 7, 65$7, to decide upon the manner in #hich the stoc+ held b" the overnment in the National Coal Compan" should be voted. Theovernor/eneral ac+no#ledged receipt of this
communication but declined to participate in the proposed meeting. The president of the 0enate and the 0pea+er of the 1ouse of Representatives did in fact meet at the time and place specified in their letter to the overnor/eneral. !t #as then and there resolved b" them that at the special meeting of the stoc+holders, the votes represented b" the stoc+ of the overnment in the National Coal Compan", should be cast in favor of five specified persons for directors of the compan". 4n ;ecember 7, 65$7, at 8 o
!t is be"ond the po#er of an" branch of the overnment of the Philippine !slands to eercise its functions in an" other #a" than that prescribed b" the 4rganic 3a# or b" local la#s #hich conform to the 4rganic 3a#. The overnor/eneral must find his po#ers and duties in the fundamental la#. An act of the Philippine 3egislature must compl" #ith the grant from Congress. The ?urisdiction of this court and other courts is derived from the constitutional provisions. These canons of political science have more than ordinar" significance in the Philippines. To the overnment of the Philippine !slands has been delegated a large degree of autonom", and the chief eponent of that autonom" in domestic affairs is the Philippine 3egislature. Theovernor/eneral on the other hand of the overnment and s"mboli2es American sovereignt". That under such a political s"stem, lines of demarcation bet#een the legislative and the eecutive departments are difficult to fi, and that attempted encroachments of one on the other ma" occur, should not dissuade the 0upreme Court, as the guardian of the constitution, from enforcing fundamental principles. The 4rganic Act vests *the supreme eecutive po#er* in the overnor/ eneral of the Philippine !slands. !n addition to specified functions,he is given *general supervision and control of all the departments and bureaus of the government of the Philippine !slands as far as is not inconsistent #ith the provisions of this act. *1e is also made *responsible for the faithful eecution of the la#s of the Philippine !slands and of the :nited 0tates operative #ithin Philippine !slands.*The authorit" of the overnor/eneral is made secure b" the important proviso *that all eecutive functionsof overnment must be directl" under the overnor/eneral or #ithin one of the eecutive departments under thesupervision and control of the overnor/eneral. *4rganic Act, secs. $6, $$.- B" the Administrative Code, *the overnor/eneral, as chief Eecutive of the !slands, is charged #ith the eecutive control of the Philippine overnment, to be eercised in person or through the 0ecretaries of ;epartments, or other proper agenc", according to la#.* 0e.'(The 4rganic Act grants general legislative po#er ecept as other#ise provided therein to the Philippine 3egislature. 4rganic Act, secs. (, 6$.- Even before the approval of the eisting 4rganic Act, it #as held that the Philippine 3egislature has practicall" the same po#ersin the Philippine !slands #ithin the sphere in #hich it ma" operate as the Congress of the :nited 0tates. Chanco s. !mperial 6567, 8) Phil., 8$5.- The rule ?udiciall" stated is no# that an Act of the Philippine 3egislature #hich has not been epressl" disapproved b" Congress is valid, unless the sub?ect/ matter has been covered b" Congressional legislation, or its enactment forbidden b" some provision of the 4rganic 3a#. The legislative po#er of the Philippine overnment is granted in general terms sub?ect to specific limitations. aspar s. Molina 65&', ' Phil., 65% :. 0. s. Bull, supra n re uarina 6568, $) Phil., 8% :. 0. s. 3imsiongco 65$&,)6 Phil., 5) Concepcion s. Paredes, supra.An independent ?udiciar" completes the governmental s"stem. The?udicial po#er is conferred on the 0upreme Couts, Courts of @irst!nstance, and inferior courts. 4rganic Act, se. $7!t is aiomatic that the Philippine 3egislature #as provided to ma+e the la#, the office of the overnor/eneral to eecute the la#, and the ?udiciar" to construe the la#. Dhat is legislative, an eecutive, or a ?udicial act, as distinguished one from the other, is not al#a"seas" to ascertain. A precise classification is difficult. Negativel" spea+ing, it has been #ell said that *The legislature has no authorit" to eecute or construe the la#, the eecutive has no authorit" to ma+e or construe the la#, and the ?udiciar" has no po#er to ma+e or eecute the la#.* :. 0. s. And Tang 1o, supra.!t is legislative po#er #hich has been vested in the Philippine 3egislature. Dhat is legislative po#erF 9udge Coole" sa"s he understands it *to be the authorit", under the constitution, to ma+e la#s, and to alter and repeal them.* Those matters #hich the constitution specificall" confides to the eecutive *the legislature cannot directl" or indirectl" ta+e from his control.* Coole"
demonstration. The 3egislature essentiall" eecutive or ?udicial. The 3egislature cannot ma+e a la# and them ta+e part in its eecution or construction. 0o the Philippine 3egislature is not a parta+er in either eecutive or ?udicial po#er, ecept as thePhilippine 0enate participates in the eecutive po#er through the overnor/eneral, and ecept as the Philippine 0enate participates in the eecutive po#er through having the right to confirm or re?ect nominations made b" the overnor/eneral, and ecept as the 3egislature participates in the ?udicial po#er through being made the sole ?udge of the elections, returns, and =ualifications of its elective members and through having the right to tr" its o#n members for disorderl" behavior. The Philippine, 3egislature ma" nevertheless eercise such auiliar" po#ers as are necessar" and appropriate to its indenpdence and to ma+e its epress po#ers effective. Mcrain s. ;aughert" 65$%, $%8 :. 0., 68' %6 3a#. ed., '(&.Dhen one enters on a stud" of the abstract =uestion, Dhere does the po#er to appoint to public office resideF, one is nearl" buried in a mass of conflicting authorit". Get #e have been at pains to revie# all of the cases cited b" counsel and others #hich have not been cited. 0ha+ing ourselves loose from the encumbering details of the decisions, #e discern through them a fe# elemental truths #hich distiguish certain cases from others and #hich point the #a" for us in the Philippines. The first principle #hich is noticed is that the particular #ording of the constitution involved, and its correct interpretation predetermines the result. ;oes the constitutions den" the legislative bod" the right of eercising the appointing po#er. The legislature ma" not do so. 0tate s. Hennon 6('%, % 4. 0t., ')% Clar+ s. 0tanle"6(%$, 77 N. C., $(.- ;oes the constitution confer upon the government the po#er to prescribe the manner of appointment. The authorities are in conflict as to #hether the legislature the po#er to prescribe the manner of appointment. The authourities are in conflict as to #hether the legislature ma" itself ma+e the appointment. ;oes the constitution merel" contain the usual clause distributing the po#ers of government and no clause regulating appointments. The #eight of ?udicial opinion seems to be that the po#er of appointing to office is not eclusivel" an eecutive function and that the legislature ma" not onl" create offices but ma" also fill them itself, but #ith a vigorous opposition in most respectable =uarters. Contrast Pratt s. Brec+inridge 65&6, 66$ H"., 6, and 0tate s.Dashburn 65&6, 67% Mo., 7(&, #ith People s. @reeman 6((5, (& Cal., $88, and Richardson s. Goung 65&5, 6$$ Tenn., )%6.The second thought running through the decisions is that in the state governments, the selection of persons to perform the functions of government is primaril" a prerogative of the people. The general po#erto appoint officers is not inherent in an" branch of the government. The people ma" eercise their political rights directl" or b" delegation. 0hould the people grant the eclusive right of appointment to the governor, he possesses that right but if the" should other#ise dispose of it, it must be performed as the sovereign has indicated. !nasmuch, ho#ever, as the legislative bod" is the repositor" of plenar" po#er, ecept as other#ise restricted, and the chief eecutive of the 0tate is not, legislative bodies usuall" possess #ide latitude in the premises. But this situation does not obtain in the Philippines #here the people are not sovereign, and #here constitutional rights do not flo# from them but are granted b" delegation from Congress. !t ma" finall" be inferred from the boo+s that the appointment of public officials is generall" loo+ed upon as properl" an eecutive function. The po#er of appointment can hardl" be considered a legislative po#er. Appointments ma" be made b" the 3egislature of the courts, but #hen so made be ta+en as an incident to the discharge of functions properl" #ithin their respective spheres. 0tate s. Brill 65&%, 6&& Minn., )55 0toc+man s. 3edd" 656$, '' Colo., $) 0partanburg Count" s. Miller 65$), 68$ 0. E., 7%8 Mechem on Public 4fficers, secs. 6&8/6&( Mechem, The po#er of Appoint to 4ffice !ts 3ocation and 3imits, 6 Mich. 3a# Rev. 65&8, '86.@rom the vie#point of one outside loo+ing in, it #ould seem that the 0tate legislatures have all too often been permitted to emasculate the po#ers properl" belonging to the eecutive deparment, and that the governor of the 0tate has been placed #ith the responsibilit" of administering the government #ithout the means of doing so. The operations of the eecutive department have been fundamentall" variedb" the legislative department. The legislature has absorbed strength, the eecutive has lost it. This tendenc" has rather been tolerated than ac=uiesced in. The eecutive should be clothed #ith sufficient po#er to administer efficientl" the affairs of state. 1e should have
complete control of the instrumentalities through #hom his responsibilit" is discharged. !t is still true, as said b" 1amilton, that *A feeble eecutive implies a geeble eecution of the government. A feeble eecution is but another phrase for a bad eecution and a government ill eecuted, #hatever it ma" be intheor", must be in practice a bad government.* The mista+es of 0tate governments need not be repeated here.. The histor" of the po#er of appointment and the stand ta+en b" the ?udiciar" on the =uestion in the 0tate of Hentuc+" is of more than ordinar" interest. Hentuc+" #as permitted to become an independent 0tate b" Iirginia. The clause in the Hentuc+" constitution separating and guarding the po#ers of government came from the pen of the author of the ;eclaration of !ndependence, Thomas 9efferson. 1e it #as #ho, in a letter to 0amuel Hercheval, dated 9ul" 67, 6(67, said> *Nomination to office iss an eecutive function. To give it to thelegislature, as #e do is Iirginia, is a violation of the principle of the separation of po#ers. !t s#erves the members from correctness b" the temptation to intrigue for office for themselves, and to a corrupt barter for votes, and destro"s responsibilit" b" dividing it among a multitude.* Possibl" inspired to such action b" the authorship of the portion of the 0tate constitution #hich #as under consideration, in the earl" da"s of the 0upreme Court of Hentuc+", Mr. Chief 9ustice Robertson in the case of )aylor s. Common!ealth 6(8&, 8 9. 9.Marshall, )&6&- announced that *Appointmets to office are intrinsicall" eecutive,* but that it might be performed b" a ?udicial officer #hen the duties of the office pertains strictl" to the court. This opinion #as sha+en in the case of Sin/ing Fund Commissioners s. George 6(5(, 6&) H"., $7&- onl" to be after#ards reaffirmed in #ratt s. $re"/inridge 65&6, 66$ H"., 6-, and in Sibert s. Garrett 65$$, $)7 0. D., )''-. in the decision in the latter case, one of the most recent on the sub?ect, the 0upreme Court of Hentuc+" after revie#ing the authorities refused to be frightened b" the bugaboo that numericall" a greater number of courts ta+e a contrar" vie#. !t said> *De are convinced that the" b" doing so are inviting destruction of the constitutional barriers separating the departments of government, and that our interpretation is much the sounder one and is essential to the future preservation of our constitutional form of government as originall" intended b" the forefathers #ho conceived it. . . . 0uch po#er of appointment- on the part of the 3egislature, if a full eercise of it should be persisted in, #ould, enable it to graduall" absorb to itself the patronage and control of the greater part of the functioning agencies of the state and count" governments, and, thus endo#ed, it #ould be little short of a legislative oligarh".* !t is of importance, therefore, not to be confused b" 0tatedecisions, and invariabl" to return to the eact provisions of the Philippine 4rganic 3a# #hich should be searched out and effectuated. The right to appoint to office has been confided, #ith certain #ell defined eceptions, b" the overnment of the :nited 0tates to the eecutive branch of the government #hich it has set up in the Philippines. 3et the 4rganic 3a# spea+ upon this proposition. The original government inaugurated in the Philippines after American occupation #as militar" in nature, and eercised all the po#ers of government, including, of course, the right to select officers. The original civil authorit" #ith administrative functions establishedhere #as the second Philippine Commission. President Mc+inle", in his !nstructions to the Commisions of April %, 65&&, ever since considered as the initial step ta+en to introduce a constitutional government, provided that until further action should be ta+en b" congress or other#ise, *The Commission #ill also have po#er . . . . to appoint to office such officers under the ?udicial, educational, and civil/ service s"stems, and in the municipal and departmental goernments, as shall be provided for.* Dhen the first Civil overnor #as appointed on 9une $6, 65&6, the President again too+ account of the po#er of appointment in the follo#ing language> The po#er to appoint civil officers, hererofore overnor, #ill be eercised b" the Civil overnor #ith the advice and consent of the commission.* The Congress #hen it came to ma+e legislative provision for the administration of the affairs of civil government in the Philippine !slands, in the Act of Congress of 9ul" 6, 65&$, the Philippine Bill, *approved, ratified and confirmed,* the action of the President, and in creating the office of Civil overnor and authori2ing said Civil overnor to eercise po#ers of government to the etent and in the manner set forth in the eectutive order date 9une $6, 65&6. Philippine Bill, sec. 6.- Congress in the same la# provided that the !slands *shall continue to be governed as thereb" and herein provided.* See opinion of Attorne"/ eneral Araneta on the po#er of the overnor/eneral to appoint and remove civil officers, 8 4p. Att"./en., '78.-
Thus stood the right to appoint to office for fourteen "ears. The 4rganic Act of August $5, 6567, included #hat follo#s on the sub?ect of appointments. The governor/eneral *shall, unless other#ise herein provided, appoint, b" and #ith the consent of the Philippine 0enate, such officers as ma" no# be appointed b" the overnor/eneral,or such as he is authori2ed b" la# to appoint.* 4rganic Act, sec. $6.- The eception to the general grant is that the Philippine 3egislature *shall provide for the appointment and removal of the heads of the eecutive departments b" the overnor/eneral.* 4rganic Act, sec. $$.- Each 1ouse of the Philippine 3egislature ma" also elect a presiding officer, a cler+, a sergeant at arms, and such other officers and assistants as ma" be re=uired. 4rganic Act, sec. 6(.- The Philippine 3egislature is authori2ed to choose t#o Residentcommissioners to the :nited 0tates. 4rganic Act, sec. $&.- The prohibition on the local 3egislature, #hich has been thought of as referring to the Resident Commissioners, is that *No 0enator or Representative shall, during the time for #hich he ma" have been elected, be eligible to an" office the election to #hich is vested in the 3egislature, nor shall be appointed to an" office of trust or profit #hich shall have been created or the emoluments of #hich shall have been increased during such term.* 4rganic Act, sec. 6(.The Administrative Code provides the follo#ing> *!n addition to his general supervisor" authorit", the overnor/ eneral shall have such specific po#ers and duties as are epressl" conferred or imposed onhim b" la# and also, in particular, the po#ers and duties set forth,* including th special po#ers and duties *a- To nominate and appointofficials, conformabl" to la#, to positions in the service of the overnment of the Philippine !slands. b- To remove officials from office conformabl" to la# and to declare vacant the offices held b" such removed officials. @or dislo"alt" to the overnment of the:nited 0tates, the overnor/eneral ma" at an" time remove a personfrom an" position of trust or authorit" under the overnment of the Philippine !slands.* 0ec. 7) a, b.- The Administrative Code lists the officers appointable b" the overnor/eneral. 0ec. 77.!t #ill be noticed that the overnor/eneral, in addition to being empo#ered to appoint the officers authori2ed b" the 4rganic Act and officers #ho thereafter he might be authori2ed to appoint, #as to continue to possess the po#er to appoint such officers as could be appointed him #hen the 4rganic Act #a approved. The careful phraseolog" of the la# and the connection provided b" the #ord *no#* #ith prior 4rganic la#s is note#orth". !t #ould not be at all illogical to appl" the same rule to the overnor/eneral in his relations #ith the 3egislature #hich the ?udiciar" uniforml" applies to the courts in their relations #ith the 3egislature, #hich is, that the 3egislature ma" add to, b"t ma" not diminish, the ?urisdiction of the courts J The 3egislature ma" add to, but ma" not diminish, thepo#er of the overnor/eneral. 4rganic Act, sec. $7 Barrameda s. Moir 6568, $' Phil., )) n re uarina, supra :. 0. s. 3imsiongco, supra.!t #ill also not escape attention that the onl" reference made to appointments b" the 3egislature relates to the selection of 0ecretaries of ;epartments, of officers and emplo"ees for the 3egislature, and of Resident Commissioners, from #hich it #ould naturall" be inferred that no other officers and emplo"ees ma" be chosen b" it. The eceptions made in favor of the 3egislature strengthen rather than #ea+en the grant to the eecutive. The specific mention of the authorit" of the 3egislature to name certainofficers is indicative of a purpose to limit the legislative authorit" in the matter of selecting officers. The epression of one things not epressed. 1ad it been intended to give to the Philippine 3egislature the po#er to name individuals to fill the offices #hich it has created, the grant #ould have been included among the legislative po#ers and not among the eecutive po#ers. The administrative controlof the overnment of the Philippine !slands b" the overnor/eneralto #hom is confided the responsibilit" of eecuting the la#s ecludes the idea of legislative control of administration. Possibl", the situation ma" better be visuali2ed b" approching the =uestion b" a process of elimination. !s the po#er of appointment ?udicialF No one so contends. !s the po#er of appointment legislativeF Not so if the intention of the 4rganic 3a# be carried out and if the 3egislature be confined to its la#/ma+ing function. !s the po#er of appointment eecutiveF !t is.
The eact =uestion of #here the po#er of appointment to office is lodged has never heretofore arisen in this ?urisdiction. But a decision of this court and a controlling decision of the :nited 0tates 0upreme Court are in point. !n Con"ep"ion s. #arades, supra, this court had before it a la# #hich attempted to re=uire a dra#ing of lots for ?udicial positionss in derogation of eecutive po#er. The case #as ehaustivel" argued andafter prolonged consideration, the =uestioned portion of the la# #as held invalid as in violation of the provisions of the 4rganic Act. @ollo#ing the lead of Hentuc+", it #as announced that * Appointment to offi"e is intrinsi"ally an e0e"utie a"t involving the eercise of discretion.* !n the case of +yers s. 1nited States 65$7, $%$ :. 0., '$ %6 3a#. ed., 67&-, the :nited 0tates 0upreme Court had presented the =uestion #hether, under the Constitution, the President has the eclusive po#er of removing eecutive officers of the :nited 0tates #hom he has appointed b" and #ith the advice and consent of the 0enate. The ans#er #as that he has. The decision is ephocal. The Chief 9ustice =uoted from Madison the follo#ing> !f there is a principle in our Constitution, indeed in an" free Constitution more sacred than another, it is that #hich separates the legislative, eecutive and ?udicial po#ers. !f there is an" point in#hich the separation of the legislative and eecutive po#ers ought to be maintained #ith great caution, it is that #hich relates to officers and offices. *K K K The Constitution #as so framed as to vest in the Congress all legislative po#ers therein granted, to vest in the President the eecutive po#er, and to vest in one 0upreme Court and such inferior courts as Congress might establish, the ?udicial po#er. @rom this division on principle, the reasonable construction of the Constitutionmust be that the branches should be +ept separate in all cases in #hich the" #ere not epressl" blended, and the Constitution should be epounded to blend them no more than it affirmativel" re=uires. Madison, 6 Annals of Congress, )5%.
The vesting of the eecutive po#er in the President #as essentiall" a grant of the po#er to eecute the la#s. But the President alone and unaided could not eecute the la#s. 1e must eecute them b" the assistance of subordinates. This vie# has since been repeatedl"affirmed b" this court. . . . As he is charged specificall" to ta+e care that the" be faithfull" eecuted, the reasonable implication, even in the absence of epress #ords, #as that as part of his eecute po#er he should select those #ho #erre to act for him under his direction in the eecution of the la#s. The further implication must be, in the absence of an" epress limitation respecting removals, that as his selection of administrative officers is essential to the eecution of the la#s b" him, so must be his po#er of removing those for #hom he cannot continue to be responsible. @isher Ames, 6 Annals of Congress, )%).- t !as urged that the natural meaning of the term 2e0e"utie
po!er2 granted the #resident in"luded the appointment and remoal of e0e"utie subordinates. f su"h appointments and remoals !ere not an e0er"ise of the e0e"utie po!er, !hat !ere they3 )hey "etainly !ere not the e0er"ise of legislatie or 4udi"ial po!er in goernment as usually understood. t is uite true that in state and "olonial goernments at the time of the Constitutional Conention, po!er to ma/e appointments and remoals had sometimes been lodged in the legislatures or in the "ourts, but su"h a disposition of it !as really esting part of the e0e"utie po!er in another bran"h of the Goernment.
De come no# to a period in the histor" of the overnment #hen both 1ouses of Congress attempted to removes this constitutionalconstruction and to sub?ect the po#er of removing eecutive officers appointed b" the President and confirmed b" the 0enate to the control of the 0enate, indeed finall" to the assumed po#er in Congress to place the removal of such officers an"#here in the overnment.
The etreme provisions of all this legislation #ere a full ?ustification for the considerations so strongl" advanced b" Mr. Madison and his associates in the @irst Congress, for insisting thatthe po#er of removal of eecutive officers b" the President alone #asessential in the division of po#ers bet#een the eecutive and the legislative bodies. !t ehibited in a clear degree the paral"sis to #hich a partisan 0enate and Congress could sub?ect the eecutive arm and destro" the principle of eecutive responsibilit", and separation of the po#ers sought for b" the framers of our overnment, if the President fhad no po#er of removal save b" consent of the 0enate. !t #as an attempt to redistribute the po#ers and minimi2ed those of the President.
@or the reasons given, #e must therefore hold that the provision of the la# of 6(%7 b" #hich the unrestricted po#er of removal of first class postmasters is denied to the President is in violation of the Constitution and invalid. Membership in the Committee created b" Acts Nos. $%&' and $($$ is an office. No attempt #ill be made to accomplish the impossible, #hich is to formulate an eact ?udicial definitions of term *office.* The point is that the positions in =uestion constitute an *office,* #hether #ithin the meaning of that #ord as used in the Code of Civil Procedure under the topic *:surpation of 4ffice,* and in the ?urisprudence of 4hio from #hich these portions of the Code #ere ta+en #hether #ithin the local definitions of *office* found in the Administrative Code and the Penal Code or #hether #ithin the constitutional definitions approved b" the :nited 0tates 0upreme Court. Code of Civil Procedure, secs. 65% et se., '65 Act No. 687, sec. 6% 0tate s. Hennon, supra, cited approvingl" in 0hebo"gran co. s. Par+er 6(7', 8 Dall., 58 Administrative Code, sec. $ Penal Code, arts. $7), )&6.- Paraphrasing the :nited 0tates 0upreme Court in alate decision, there is not lac+ing the essential elements of a public station, permanent in character, created b" la#, #hose incidents and duties #ere prescribed b" la#. Metcalf L Edd" s. Mitchell 65$7, $75 :. 0., '6) :. 0. s. Maurice 6($8, $ Broc+., 57 :. 0. s.1art#el 6(7%, 7 Dall., 8('.- The 3egislature did more than add incidentalor occasional duties to eisting eecutive offices for t#o of the members of the voting committee are representatives of thelegislative branch. The 0upreme Court of North Carolina has held that the Act of the eneral Assembl" giving to the President of the 0enate and the 0pea+er of the 1ouse of Representatives the po#er to appoint proies and directors in all corporations in #hich the 0tate has an interest, creates a public office and fills the same b" appointment of the 3egislature. Clar+ s. 0tanle" 6(%$, 77 N. C., $(1o#erton s. Tate 6(%8, 7( N. C., )5( 0hoema+er s. :. 0. 6(5$, 6)% :. 0., $($ Advisor" 4pinion to overnor 65&', )5 @la., $75 Mechem on Public 4fficers, Ch. !.-
To tell the truth, it is possible that the earnestness of counsel has ?ust led us to decide too much. Not for a moment should there be dismissed from our minds the unusual and potentl" effective proviso of section $$ of the 4rganic Act, 2)hat all e0e"utie fun"tions of the goernment must be dire"tly under the Goernor-General or !ithin one of the e0e"utie departments under the superision and "ontrol of the Goernor-General.2 At the ver" least,the performance of duties appurtenant to membership in the voting committee is an eecutive function on the overnment, #hich the 4rganic Act re=uires must be sub?ect to the unhampered control of the overnment/eneral. The administrative domination of a governmentall" organi2ed and controlled corporation is clearl" not a dut" germane to the la#/ma+ingpo#er. The incorporation of the National Coal Compan" has not served to disconnect the Compan" or the stoc+ #hich the overnment o#ns in it from the overnment and eecutive control. The Philippine 3egislatureis empo#ered to create and control private corporations. Martine2 s. 3a Asociacion de 0eoras ;amas del 0anto Asilo de Ponce 65&5, $68 :. 0., $&.- The National Coal Compan" is a private corporation.National Coal Compan" is a private corporation. National Coal Compan" s. Collector of !nternal Revenue 65$), )7 Phil., '(8.- B" becoming a stoc+holder in the National Coal Compan", the overment divested itself of its sovereign character so far as respects the transactions of the corporation. Ban+ of the :. 0. s. Planters< Ban+ of eorgia 6($), 5 Dheat., 5&).- :nli+e the overnment, the corporation ma" be sued #ithout its consent, and is sub?ect to taation. Get the National Coal Compan" remains an agenc" or instrumentalit" of government. Mr. Chief 9ustice Marshall in spea+ing of the Ban+ of the :nited 0tates said, *!t #as not created for its o#n sa+e, or for private purposes. !t has never been supposed that Congress could create such a corporation.* 4sborn s. Ban+ of the :. 0. 6($), 5 Dheat., %8( National Ban+ s. Common#ealth 6(75, 5 Dall., 8'8 Railroad Co. s. Peniston 6(%8, 6( Dall., ' Chesapea+e L ;ela#are Canal Co. s. :. 0. 656(, $'& :. 0., 6$8.- 4f the National Coal Compan", it has been said b" Mr. 9ustice 9ohnson as the organ of the court in National Coal Compan" s. Collector of !nteranl Revenue, supra, that *The overnment of the Philippine !slands is made the ma?orit" stoc+holder, evidentl" in order to insure proper governmental supervision and control, and thus to place the overnment in a position to render all possible encouragement, assistance and help in the prosecution and furtherance of the compan"
secs. 86, 8), 7$.- !n the case of the Philippine National Ban+, the la# eplicitl" enumerates variousfunctions of the ban+ #hich ma" not be performed #ithout the epress approval of the Board of Control. Act No. $58(.Ier" important propert" rights are involved in the transactions in the governmental directed corporations. 9ust as surel" as the dut" of caring for government propert" is neither ?udicial nor legislative in character is it as surel" eecutive. Get a ma?orit" of the voting committee or board of control is made up of the presiding officers of the t#o houses of the 3egislature and the" are in a position to dictate action to the directors and subordinate personel of these corporations. Based on all the foregoing considerations, #e deduce that the po#er of appointment in the Philippines appertains, #ith minor eceptions, to the eecutive department that membership in the voting committee in =uestion is an office or eecutive function that the National Coal Compan" and similar corporations are instrumentalities of the overnment that the dut" to loo+ after government agencies and government propert" belongs to the eecutive department that the placing of members of the Philippine 3egislature on the voting committee constitutes an invasion b" the 3egislative ;epartment of the provileges of the Eecutive ;epartment. :nder a s"stem of government of delegated po#ers, under #hich delagation legislative po#er vests in the Philippine 3egislature and eecutive po#er vests in the overnor/eneral, and under #hich overnor/eneral and a specified po#er of appointment resides in the Philippine 3egislature, the latter cannot directl" or indirectl" perform functions of an eecutive nature through the designation of its presiding officers as ma?orit" membersof a bod" #hich has eecutive functions. That is the meaning #e gather from the tri/partite theor" of the division of po#ers. That is the purport of the provisions of the 4rganic 3a#. That has been the decided trend of persuasive ?udicial opinion. The intimation contained in the conclusions ?ust reached does not necessaril" mean that the plaintiff #ill be privileged to substitute the directors designated b" the overnor/eneral for those designated b" the t#o presiding officers in the 3egislature. The burden has heretofore been on the defenfants. @rom this point, it #ill be on the plaintiff. !t is #ell established in uo !arranto proceedingsthat the failure of the defendant to prove his title does not established that of plaintiff. People s. Thacher 6(%), 6& N. G., '$'.The ans#er to the problem comes from t#o directions. The acting Attorne"/eneral of the :nited 0tates finds the solutions in the supreme eecutive po#er entrusted to the overnor/eneral, #hile cousel for the plaintiff advance the rule of statutor" construction pertaining to partial invalidit". De are fran+ to sa" that #e eperience difficult" in follo#ing the lead of the la# officer of the overnment of the :nited 0tates. The overnor/eneral since the approval of the last 4rganic Act has had no prerogative po#ers. 1is po#ers are so clearl" and distincl" stated that there ought to be no doubt as to #hat the" are. 3i+e the 3egislature and the ?udiciar",li+e the most inconspicuous emplo"ee, the overnor/eneral must find #arrant for his ever" act in the la#. At this stage of political development in the Philippines, no vague residuum of po#er should be left to lur+ in an" of the provsions of the 4rganic 3a#. Counsel for the plaintiff rel" on a decision of this court :. 0. s. Rodrigue2 656(, 8( Phil., %'5- as best epressing the local rule regarding statutes void in part. Counsel for the defendants cite an earlier case Barrameda s. Moir 6568, $' Phil., ))-. As the principle announced in the last cited case is the more comprehensive and is much fairer to the defendants, #e give it preference. !t #as there announce> Dhere part of a statute is void, as repugnant to the 4rganic 3a#, #hile another part is valid, the valid portion, if separable from the invalid, ma" stand and be enfored. But in order to do this, the valid portion must be so far independent of the invalid portion that it is fair to presume that the 3egislature #ould have enacted it b" itself if the" had supposed that the" could not constitutionall" enact the other. Enough must remain to ma+e a complete, intelligible, and valid statute, #hich carries out the legislative intent. The void provisions must be eliminated #ithout causing results affecting the main purpose of the Act in a manner contrar" to the intention of the 3egislature. The language used in the invalid part of a statute can have no
legal force or efficac" for an" purpose #hatever, and #hat remains must epress the legislative #ill independentl" of the void part since the court has no po#er to legislate. 4mitting reference to the President of the 0enate and the 0pea+er of the 1ouse of Representative in section ) of Act No. $%&', as amended b" section $ of Act No. $($$, it #ould then read> *The voting po#erof all such stoc+ o#ned b" the overnment of the Philippine !slands shall be vested eclusivel" in a committee consisting of the overnor/ eneral.* Dould the court be ?ustified in so enforcing the la# #ithout itself intruding on the legislative fieldF The Philippine 3egislature, as #e have seen is authouri2ed to create corporations and offices. The 3egislature has la#full" provided for a National Coal Compan", but has unla#full" provided for t#o of its members to sit in the committee. Dould this court be doing violence to the legislative #ill if the votig po#er be continued solel" in the hands of the overnor/eneral until different action is ta+en b" the 3egislatureF De conclude that #e #ould not, for the reason that the primordial purpose of the 3egislature #as *to promote the business of developing coal deposits . . . and of mining . . . and selling the coal contained in said deposits.* Act No. $%&', sec $ Act No.$($$, sec.6.- The incidental purpose of the 3egislature #as to provide a method to vote the stoc+ o#ned b" the overnment in the National Coal comapn". !n the #ords of the :nited 0tates 0upreme Court, *The stri+ing out is not necessaril" b" erasing #ords, but it ma" be b" disregarding the unconstitutional provision and reading the statute as if that provision #as not there.* Railroad companies s. 0chutte 6((&, 6&8 :. 0. 66( 0tate s. Desterfield 6(5%, $8 Nev., )7( 0tate s. Dashburn, supra 0tate s. Dright 6568, $'6 Mo., 8$' 0tate s. Clausen 6565, 6&% Dash.,77% 6 3e#is 0utherland, 0tatutor" construction, 0econd ed. Ch. !.The decision of the :nited 0tates 0upreme Court in Cla"ton s. People 6(5&, 68$ :. 0., 78$- is particularl" applicable on account of relating to the validit" of an Act passed b" a territorial legislature, the =uestion of partial invalidit", and the contention li+e#ise here made, that since the la# in =uestion had been on the statute boo+s for a number of "ears, it must be considered as having been impliedl" ratified b" the Congress. An Act of the 3egislature of :tah of 6(%( had declared that the auditor and the treasurer shall be elected b" the voters of the territor". !n a decision handed do#n in 6((7, the 0upreme Court of the territor" of :tah held the act void because in conflict #ith the organic act creating the territor", #hich provided that the governor, #ith the consent of the legislative council, shall appoint such officers. !t further held that a territorial statute invalid #hen enacted is not validated b" the failureof the congress epressl" to disapprove it. People s. Cla"ton 6((7, ) :tah, )$6.- The :nited 0tates 0upreme Court on appeal affirmed the ?udgment. !t said> !t can hardl" be admitted as a general proposition that under the po#er of Congress reserved in the 4rganic Acts of the territories to annul the Acts of their legislature the absence of an" action b" Congress is to be construed to be a recognition of the po#er of the 3egislature to pass la#s in conflict #ith the Act of Congress under#hich the" #ere created. . . . De do not thin+ that the ac=uiescenceof the people, or of the 3egislature of :tah, or of an" of its officers, in the mode for appointing the auditor of public accounts, is sufficient to do a#a" #ith the clear re=uirements of the organic Act on that sub?ect. !t is also, #e thin+, ver" clear that onl" that part of the 0tatute of :tah #hich is contrar" to the 4rganic act, namel", that relating to the mode of appointment of the officer, is invalid that so much of it as creates the office of auditor of public accounts and treasurer of the Territor" is valid and that it can successfull" and appropriatel" be carried into effect b" an appointment made b" the governor and the Council of the Territor", as re=uired in the Act of Congress. 4n the assumption, ho#ever, that the entire provision authori2ing the voting committee be considered as #iped out, "et #e thin+ it #ould still devolve on the overnor/eneral to protect the public interests and public propert". 1e is made responsible for the eecution of the la#s, and he #ould be unfaithful to that trust if, through inaction, instrumentalities of government should fail to function and government propert" should be permitted to be dissipated.
Counsel for the dependants have in?ected the argument into the discussion that, as the President of the 0enate and the 0pea+er of the 1ouse of Representatives are at least de fa"to officers, their right to act as members of the voting committee cannot be collaterall" attac+ed, and that the defendants in this suit are the de 4ure members of the board of directors of National Coal Compan". Contentions such as there are out of harmon" #ith the avo#ed purpose to avoid technical obstruction, and to secure a definite epression of opinion on the main issue. 1o#ever, it remains to be said that this is a direct proceeding to test the right of the defendants to the offices to #hich the" consider themselves entitled. The in=uir" then ma" go, as is proper in uo !arranto proceedings, to the etent of determining the validit" of the act authori2ing the offices. The fallac" of the argument relating to the de facto doctrine is that, although there ma" be a de fa"to officer in a de 4ure office, there cannot be a de fa"to officer in a de fact office. There is no such thing as de fa"to office under an unconstitutional la#. Norton s. 0helb" Count" 6((7, 6(( :. 0., )$'.Before terminating, a fe# general observations ma" be appropriate.The case has been carefull" prepared and elaboratel" argued. All parties appear to desire to have the matter at issue definitel" determined. De have endeavored to accomodate them. But in such a bitterl" fought contest, the ingenuit" of counsel presses collateralpoints upon us #hich the court need not resolve. De thus find it unnecessar" to epress an" opinion on the propriet" or legalit" of Eecutive 4rder No. 8%, on that portion of section 6( of the 4rganic Act #hich dis=ualifies 0enators or Representatives for election or appointment to office and no other subsidiar" matters. Need it be added that the court is solel" concerned #ith arriving at a correct decision on a purel" legal =uestion. Ever" other consideration to one side, this remains certainJThe congress of the :nited 0tates clearl" intended that the overnor/ eneral
