[G.R. No. L-34038. June 18, 1976.

THE COLLECTOR OF CUSTOMS Airport Customhouse, Pasay City, Petitioner, v. HON. ONOFRE A.
VILLALUZ, as Judge of the Circuit Criminal Court, 7th District, stationed at Pasig, Rizal, and CESAR T.
MAKAPUGAY, Respondents.

The question of whether or not a circuit criminal court judge has power to conduct preliminary
investigations of criminal complaints directly filed with him was raised in issue in the instant
consolidated cases.

The Supreme Court ruled that Section 1(3), Article 111 of the 1935 Constitution, Article IV of
the 1973 Constitution as well as Section 13 of Rule 112 of the Revised Rules of Court provide
the source of the power of all judges, including judges of the Courts of First Instance, the Circuit
Criminal Courts and other courts of equivalent rank, to conduct the examination. While
sustaining this power, the Court laid down the policy that judges of the criminal courts should
concentrate on hearing and deciding criminal cases filed before their courts and should not
encumber themselves with the preliminary examination and investigation of criminal complaints,
which they should refer to the municipal judge or provincial or city fiscal, who in turn can utilize
the assistance of the state prosecutor to conduct such preliminary examination and investigation.
the order of respondent Judge dated July 6, 1971 in G.R. No. L-34038 is set aside as null and
void insofar as the same dismissed the criminal case with prejudice and insofar as it directed the
return to private respondent of the articles seized from him which are the subject of seizure
proceedings before customs authorities and the writ of preliminary injunction issued therein
made permanent.

SYLLABUS

1. COURTS; POWER TO CONDUCT PRELIMINARY EXAMINATION AND

INVESTIGATIONS; AUTHORITY CONFERRED BY THE CONSTITUTION, THE RULES
OF COURT AND REPUBLIC ACT 5180. — Section 1 (3), Article III, 1935 Constitution and
Section 3, Article IV, 1973 Construction vest the essential power in all courts to first determine
probable cause before ordering the arrest of those charged with a criminal offense. The
determination of this "probable cause" is the sole object of preliminary examination and
investigation by Sections 13 and 14 Rule 112 of the Revised Rules of Court. Moreover, Congress
further confirmed that the Court of First Instance has the power to conduct preliminary
investigation by all government prosecutors, continuing the procedure prescribed in the Revised
Rules of Court. Section 1 of the Act was not modified by the amendatory Presidential Decrees
Nos. 77 and 911 issued respectively on December 6, 1972 and March 23, 1976.

2. ID.; CIRCUIT CRIMINAL COURTS; POWER AND FUNCTIONS SAME AS THOSE

CONFERRED UPON REGULAR COURTS DESPITE ITS LIMITED JURISDICTION. —
R.A. 5179 limits the scope of the cases that may be tried by the Circuit Criminal Courts. They
can only take cognizance of cases expressly specified in Section 1 of the Act as amended by
Presidential Decree No. 126. Nevertheless, they have the same powers and functions as those
conferred upon regular Courts of First Instance necessary to effectively exercise such special and
limited jurisdiction. This is plain and evident from Section 3 and 6 of their organic law, R.A.
5179.

DECISION

MAKASIAR, J.:

G.R. No. L-34038

On July 1, 1971, petitioner Collector of Customs, Salvador T. Mascardo, filed against Cesar T.
Makapugay, a letter complaint with respondent Judge of the Circuit Criminal Court for violation
of: (a) Section 174 of the National Internal Revenue Code, as amended by Republic Act No.
4713, (b) Central Bank Circular No. 265, in relation to Section 34 of Republic Act No. 265,
otherwise known as The Central Bank Act, and (c) Section 3601 and 3602 of Republic Act No.
1937, in relation to Sections 2505 and 2530 (m) 1 of the same Act, claiming that Cesar T.
Makapugay "with malicious intention to defraud the government criminally, willfully and
feloniously brought into the country FORTY (40) cartons of ‘untaxed blue seal’ Salem cigarettes
and FIVE (5) bottles of Johny Walker Scotch Whiskey, also ‘untaxed’, without the necessary
permit from the proper authorities. The respondent submitted a Baggage Declaration Entry
which did not declare the said articles. The Customs Examiner assigned further asked him if he
has something more to declare but the answer was in the negative. And in utter disregard of
existing Central Bank Circulars, particularly C.B. Circular 265, as amended, the respondent
brought into the country various Philippine Money in the amount of Two Thousand Two
Hundred Eighty (P2,280.00) Pesos cleverly hidden in one of the pieces of baggage examined by
the assigned customs examiner, without any prior permit from the Central Bank authorities . . ."
(p. 11, rec.).

Respondent Judge assumed jurisdiction to conduct and did conduct the preliminary investigation,
and on July 6, 1971, issued the challenged order, dismissing "the case with prejudice and
ordering the return to private respondent the amount of P2,280.00, his passport No. Ag-2456 FA
- No. B103813, and one (1) box of airconditioning evaporator only, as well as the forfeiture of
forty (40) cartons of untaxed blue seal Salem cigarettes and five (5) bottles of Johnny Walker
Scotch Whiskey" (p. 13, rec.).

Armed with said order, private respondent Makapugay demanded that petitioner release the
articles so stated. Petitioner Collector of Customs refused to obey the order due to the "prior
institution of seizure proceedings thereon." The refusal prompted respondent Makapugay to file a
complaint for "Open Disobedience" under Article 231 of the Revised Penal Code, before the City
Fiscal of Pasay City.

Hence, this petition for certiorari with preliminary injunction, seeking to annul and set aside the
order dated July 6, 1971 on the ground that respondent Judge has no power to conduct a
preliminary investigation of criminal complaints directly filed with him, cannot legally order the
dismissal "with prejudice" of a criminal case after conducting a preliminary investigation
thereon, and is without authority to order the return of articles subject of seizure proceedings
before Customs authorities.

In due time, respondents filed their respective answers to the petition and subsequently both
parties submitted their respective memoranda in lieu of oral argument.

The one common legal issue posed by these six case, is whether a Circuit Criminal Court
possesses the power to conduct preliminary investigations.

Neither the explanatory note to House Bill No. 9801 (now R.A. No. 5179) nor the available
Congressional debates intimate that Circuit Criminal Courts are clothed with the authority to
conduct preliminary examinations and investigations (Congressional Records of House, March
28, 1967, pp. 41-45; May 15, 1967).

WE therefore examine the law.

Petitioners, in maintaining that respondent Judge has no such power, rest their claim on Section 1
of Republic Act No. 5179, which provides: jgc:chanrobles.com.ph

"In each of the sixteen judicial districts for the Court of First Instance as presently constituted,
there is hereby created a Circuit Criminal Court with limited jurisdiction, concurrent with the
regular Court of First Instance, to try and decide the following criminal cases falling under the
original and exclusive jurisdiction of the latter: jgc:chanrobles.com.ph

"a. Crimes committed by public officers, crimes against persons and crimes against property as
defined and penalized under the Revised Penal Code, whether simple or complex with other
crimes;

"b. Violations of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt
Practices Act, . . .;

"c. Violations of Sections 3601, 3602 and 3604 of the Tariff and Customs Code and Sections
174, 175 and 345 of the National Internal Revenue Code" (Emphasis supplied).

Petitioners argue that said courts, having been conferred limited jurisdiction, cannot exercise
such power of preliminary investigation, the same not being embraced and contemplated within
its given function to "try and decide" specific criminal cases.

What is limited by Republic Act No. 5179 is the scope of the cases that may be tried by Circuit
Criminal Courts.

Circuit Criminal Courts are of limited jurisdiction, only because they cannot try and decide all
criminal cases falling under the jurisdiction of the Courts of First Instance as courts of general
jurisdiction. They can only take cognizance of cases expressly specified in Section 1 of Republic
Act No. 5179, as amended by Presidential Decree No. 126. Nevertheless, they have the same
powers and functions as those conferred upon regular Courts of First Instance necessary to
effectively exercise such special and limited jurisdiction. This is plain and evident from Sections
3 and 6 of their organic law, Republic Act No. 5179: jgc:chanrobles.com.ph

"SECTION 3. The provisions of all laws and the Rules of Court relative to the judges of the
Court of First Instance and the trial, and disposition and appeal of criminal cases therein shall be
applicable to the circuit judge and the cages cognizable by them insofar as they are not
inconsistent with the provisions of this act.

x        x       x

"SECTION 6. . . . Unless inconsistent with the provision of this Act, the Circuit Criminal Courts
shall have the same powers as those conferred by the Judiciary Act and the Rules of Court upon
regular Courts of First Instance, insofar as may be necessary to carry their jurisdiction into effect.

Judges of the regular Courts of First Instance are expressly conferred the authority to conduct
preliminary examination and investigation by Sections 13 and 14 of Rule 112 of the Revised
Rules of Court: jgc:chanrobles.com.ph

"SECTION 13. Preliminary examination and investigation by the judge of the Court of First
Instance. — Upon complaint filed directly with the Court of First Instance, without previous
preliminary examination and investigation conducted by the fiscal, the judge thereof shall either
refer the complaint to the justice of the peace referred to in the second paragraph of Section 2,
hereof for preliminary examination and investigation, or himself conduct both preliminary
examination and investigation simultaneously in the manner provided in the preceding sections,
and should he find reasonable ground to believe that the defendant has committed the offense
charged, he shall issue a warrant for his arrest, and thereafter refer the case to the fiscal for the
filing of the corresponding information" (Emphasis supplied).

"SECTION 14. Preliminary examination and investigation by provincial or city fiscal or by state
attorney in cases cognizable by the Court of First Instance.— Except where an investigation has
been conducted by a judge of first instance, justice of the peace or other officer in accordance
with the provisions of the preceding sections, no information for an offense cognizable by the
Court of First Instance shall be filed by the provincial or city fiscal, or state attorney, without
first giving the accused a chance to be heard in a preliminary investigation conducted by him or
by his assistant by issuing a corresponding subpoena . . ." cralaw virtua1aw library

The power of preliminary examination and investigation, which may be exercised by judges of
the Circuit Criminal Courts, is without doubt, "not inconsistent with the provisions of Republic
Act No. 5179," and likewise, "necessary to carry their jurisdiction into effect." cralaw virtua1aw library

Moreover, Congress further confirmed that the Court of First Instance has the power to conduct
preliminary investigation by approving on September 8, 1967 Republic Act No. 5180,
prescribing a uniform system of preliminary investigation by all government prosecutors, which
provides:jgc:chanrobles.com.ph

"SECTION 1. Notwithstanding any provision of law to the contrary and except when an
investigation has been conducted by a Judge of First Instance, city or municipal judge or other
officer in accordance with law and the Rules of Court of the Philippines, no information for an
offense cognizable by the Court of First Instance shall be filed by the provincial or city fiscal or
any of his assistants, or by state attorney or his assistants, without first giving the accused a
chance to be heard in a preliminary investigation conducted by him by issuing a corresponding
subpoena . . .

"SECTION 2. The provisions of Section fifteen, Rule 112, of the New Rules of Court of the
Philippines, shall be observed in the investigations of persons in custody." cralaw virtua1aw library

From the above quoted provisions, Republic Act No. 5180 likewise continues the procedure
prescribed in the Revised Rules of Court of 1964, particularly Rule 112 thereof.

The aforequoted portion of Section 1 of Republic Act No. 5180 was not modified by the
amendatory Presidential Decrees Nos. 77 and 911 issued respectively on December 6, 1972 and
March 23, 1976.

More decisively, the 1935 as well as 1978 Constitutions vests this essential power in all courts to
first determine probable cause before ordering the arrest of those charged with a criminal offense
(Section 1[3], Art. III, 1935 Constitution; Sec. 3, Art. IV, 1973 Constitution). The determination
of "probable cause" is the sole object of preliminary examinations. Surely, Congress could not
have possibly intended to deny the Circuit Criminal Courts such constitutional prerogative,
which is part of the basic constitutional right of an individual whose person cannot be legally
seized without prior preliminary examination by a judge.

WE enunciated that the creation of the Circuit Criminal Courts is for the purpose of alleviating,
the burden of the regular Courts of First Instance and to accelerate the disposition of criminal
case pending or to be filed therein (People v. Gutierrez, etc., Et Al., 36 SCRA 172; Osmeña v.
Sec. of Justice, G.R. No. L-32033, Sept. 30, 1971, 199) or to contribute to the speedy resolution
of criminal cases and help curb the progression of criminality in the country (Paraguya v. Tiro,
41 SCRA 137). As opined by Mr. Justice Barredo in his concurring opinion in the Gutierrez
case, supra,." . . Circuit Criminal Courts are nothing but additional branches of the regular Courts
of First Instance in their respective districts . . .", which he reiterated in his concurring opinion in
the Osmeña case, thus: jgc:chanrobles.com.ph

"My principal reason for my vote in favor of the judgment in this case is that I cannot find any
justification for allowing the Secretary of Justice to have any part at all in the distribution or
assignment of cases among the different branches of any Court of First Instance, of which the
corresponding Circuit Criminal Court if one. I took this view in my concurring opinion in the
case of People v. Gutierrez, cited in the main opinion of Justice Villamor, and I cannot see why I
must opine differently now . . ." (41 SCRA 211).

If the main purposes then in creating Circuit Criminal Courts are to alleviate the burden of the
regular Courts of First Instance and to accelerate the disposition of the cases therein as well as
stem the tide of criminality, it is only logical that such authority vested in the judges of the
Courts of First Instance is likewise conferred on Circuit Criminal Courts. Otherwise, the Courts
of First Instance would still be carrying the burden of conducting preliminary investigations in
those cases where Circuit Criminal Courts have jurisdiction and consequently delaying the trial
and disposition of criminal cases pending before such Courts of First Instance.

That Congress, in enacting Republic Act No. 5179 clearly intended, by Sections 3 and 6 thereof,
to clothe the Circuit Criminal Court with all the powers vested in regular Courts of First Instance
including the authority to conduct preliminary examinations and investigations, is confirmed by
the Dangerous Drugs Act of 1972, otherwise known as Republic Act No. 6425, as amended by
Presidential Decree No. 44, Section 39 of which confers on Circuit Criminal Courts, Courts, of
First Instance and Juvenile and Domestic Relations Courts concurrent original jurisdiction over
all offenses punishable thereunder and expressly directs that the "preliminary investigation of
cases filed under this Act shall be terminated within a period of thirty (30) days from the date of
their filing." Before the amendment, the law required only seven (7) days from the date of the
commencement of the preliminary investigation. Section 39, as amended, reads: jgc:chanrobles.com.ph

"SECTION 39. Jurisdiction. — The Court of First Instance, Circuit Criminal Court, and Juvenile
and Domestic Relations Court shall concurrent original jurisdiction over all cases involving
offenses punishable under this Act: Provided, that in cities or provinces where there are Juvenile
and Domestic Relations Courts, the said courts shall take exclusive cognizance of cases where
the offenders are under sixteen years of age.

"The preliminary investigation of cases filed under this Act shall be terminated within a period of
thirty (30) days from the date of their filing.

"Where the preliminary investigation is conducted by a prosecuting officer and a prima facie
case is established, the corresponding information shall be filed in court within twenty-four (24)
hours from the termination of the investigation. If the preliminary investigation is conducted by a
judge and a prima facie case is found to exist, the corresponding information shall be filed by the
proper prosecuting officer within forty-eight (48) hours from the date of receipt of the records of
the case.

"Trial of the cases under this section shall be finished by the court not later than ninety (90) days
from the date of the filing of the information. Decision on said cases shall be rendered within a
period of fifteen (15) days from the date of submission of the case." cralaw virtua1aw library

It is patent that the aforequoted provision of Section 39 of Republic Act No. 6425 affirms the
power of the Circuit Criminal Courts to conduct preliminary examination and investigation in all
the cases falling under their jurisdiction and additionally fixes the period for preliminary
investigation, the filing of the information and the rendition of decisions in all offenses penalized
by the Dangerous Drugs Act of 1972.

Under the amendment, the Circuit Criminal Court no longer has exclusive, but still retains
concurrent, jurisdiction with the Court of First Instance and Juvenile and Domestic Relations
Courts under the Dangerous Drugs Act. Its authority to conduct preliminary examination and
investigation granted under Section 6 of Republic Act No. 5179, remains intact and
undiminished; because the amendatory decree expressly directs that "If the preliminary
investigation is conducted by a judge and a prima facie case is found to exist, the corresponding
information should be filed by the proper prosecuting officer . . ." There is nothing in the
amendatory decree from which it can be reasonably inferred that since the jurisdiction of the
Circuit Criminal Court over violations of the Dangerous Drugs Act is no longer exclusive,
Circuit Criminal Court Judges no longer possess the authority to conduct preliminary
examination and investigation.

Recognizing the constitutional power of the courts, including the Courts of First Instance, to
conduct preliminary examination, other special laws specifically vest such authority exclusively
in the Court of First Instance in cases of violation of the Revised Election Code (Sec. 187, 1947
Revised Election Code, as amended; Sec. 234, 1971 Rev. Election Code) and of the Anti-
Subversion Act when the penalty imposable for the offense is prision mayor to death (Sec. 16,
Rep. Act No. 1700).

It is urged that the word "judge" in the above-quoted section of Presidential Decree No. 44 (and
also in the 1935 and 1973 Constitutions) contemplates not the Court of First Instance Judge nor
the Circuit Criminal Court Judge but the municipal judge. As heretofore stated, it is an
elementary precept in statutory construction that where the law does not distinguish, WE should
not distinguish (Colgate Palmolive Philippines, Inc. v. Gimenez, L-14787, Jan. 28, 1961, 1
SCRA 267). The statute cannot give a restricted meaning to the generic term "judge" used in the
constitutional guarantee against unreasonable searches and seizures.

Furthermore, in People versus Manantan (L-14129, July 31, 1962, 5 SCRA 684), a justice of the
peace, Accused of violating Section 54 of the Revised Election Code, moved to dismiss the
information on the ground that the law refers merely to a justice, judge, or fiscal and that being a
justice of the peace, he is beyond the coverage of the said Code. The Supreme Court in denying
such contention, held that there was no need of including justices of the peace in the enumeration
in said section because the legislature had availed itself of the more generic term "judge." The
term "judge", not modified by any word or phrase, is intended to comprehend all kinds of judges,
including justices of the peace.

The cases of People versus Paderna (22 SCRA 273) and Paraguya versus Tiro (41 SCRA 137)
involved not the power of the Circuit Criminal Court to conduct preliminary investigation, but its
jurisdiction to try and decide certain cases. They do not at all reveal an iota of any further
restriction on the limited jurisdiction of the Circuit Criminal Court other than those delineated in
existing laws.

Thus, in the Paderna case, supra, involving a violation of Section 174 of the Tax Code, Mr. Chief
Justice Castro, then Associate Justice, speaking for the Supreme Court in ruling that the Circuit
Criminal Court was without jurisdiction to take cognizance of the case, stated: jgc:chanrobles.com.ph

". . . [T]he charge is for unlawful possession of untaxed blue seal cigarettes’ of an appraised
value of less than P500.00 . . . and the penalty provided under Republic Act 4713 is a fine of not
less than P50.00 nor more than P200.00 and imprisonment of not less than 5 not more than 30
days because the value of the cigarettes does not exceed P500.00, this case falls within the
original and exclusive jurisdiction of the city court . . ."
cralaw virtua1aw library
". . . Section 1 of Republic Act 5179, which took effect on September 8, 1967, provides in part
that circuit criminal courts shall have — limited jurisdiction concurrent with the regular court of
first instance, to try and decide the following criminal case falling under the original and
exclusive jurisdiction of the latter.

x        x       x

"The jurisdiction of the circuit criminal courts is thus dependent not only on the type of cases but
on the penalties provided for those cases. Inasmuch as the case at bar falls within the exclusive
and original jurisdiction of the City Court, it cannot, even if it involves a violation of section 174
of the Tax Code, be taken cognizance of by circuit criminal courts, the jurisdiction of which is
concurrent with that of courts of First instance where the latter’s jurisdiction is original and
exclusive."cralaw virtua1aw library

The same ruling was substantially reiterated in the more recent Tiro case, supra, involving
indirect bribery committed by a public officer. In passing upon the issue of the Circuit Criminal
Court’s limited jurisdiction, the Supreme Court, through Mr. Justice Jose B.L. Reyes, held: jgc:chanrobles.com.ph

". . . The law (R.A. 5179) confined the jurisdiction of the circuit criminal courts (which is even
made concurrent with the courts of first instance) to committed by public officers; . . . only
where they are falling within the original and exclusive jurisdiction of the court of first instance.
In short, circuit criminal court’s jurisdiction was limited merely to cases involving crimes
specifically enumerated in Section 1 of Republic Act 5179, for which the penalty prescribed by
law is imprisonment for more than 3 years (or 6 years in proper cases), or fine of more than
P3,000.00 (or P6,000.00 as the case may be), or both such fine and imprisonment (Sec. 44[f] in
relation to Sec. 87[c], Judiciary Act of 1948, as amended; Esperat v. Avila, L-25922, June 30,
1967, 20 SCRA 596; Mangila v. Lantin, L-24735, October 31, 1969, 30 SCRA 81; People v.
Tapayan, L-36885, November 28, 1969, 30 SCRA 529; Andico v. Roan, L-26563, April 16,
1968, 23 SCRA 93).

"Since indirect bribery is penalized under the Revised Penal Code with imprisonment for a
period not exceeding six months, suspension and public censure. (Art, 211 RPC), the case is
clearly removed from the competence of the circuit criminal court to pass upon. It is not denied
that the crime of indirect bribery is essentially one committed by public officers. Jurisdiction of
the court, however, is determined not only by nature of the offense charged in the information,
but also by the penalty imposable thereto . . ." (Emphasis supplied).

In these two cases, it was made clear that for the Circuit Criminal Court to acquire jurisdiction,
the offense must not only be one of those enumerated under Section 1 of Republic Act No. 5179;
it should also be within the original and exclusive jurisdiction of the regular Courts of First
Instance. In the aforesaid cases, the Circuit Criminal Court was clearly without jurisdiction to
hear and decide the offenses involved, by command of the specific provisions of its charter, the
Judiciary Act and the Revised Penal Code; and not by a directive of the Supreme Court, which
merely applied in said cited cases the statutory prescriptions. The Supreme Court cannot legally
define additional restrictions, which is the sole prerogative of the law-making authority.
The contrary view appears to entertain the mistaken notion that Section 13, Rule 112 of the
Revised Rules of Court, being a rule of procedure, the same should be rendered inoperative by
reason of the fact that the Supreme Court cannot, by promulgating a rule of procedure, arrogate
jurisdiction unto itself or grant any to the lower courts.

It is of course basic that only the Constitution and the law can confer jurisdiction to hear and
decide certain cases. But equally true is the fact that both the 1935 and 1973 Constitutions
expressly delegated to the Supreme Court the rule-making authority — the power to promulgate
rules of pleading, practice and procedure and to amend the existing laws thereon. The law or rule
on preliminary investigation is undoubtedly a rule of procedure.

The 1935 Constitution states: jgc:chanrobles.com.ph

"The Supreme Court shall have the power to promulgate rules concerning pleading, practice, and
procedure in all courts, and the admission to the practice of law. Said rules shall be uniform for
all courts of the same grade and shall not diminish, increase or modify, substantive rights. The
existing laws on pleading, practice, and procedure are hereby repealed as statutes, and are
declared Rules of Courts, subject to the power of the Supreme Court to alter and modify the
same. The Congress shall have the power to repeal, alter, or supplement the rules concerning
pleading, practice, and procedure, and the admission to the practice of law in the Philippines"
(Sec. 13, Art. VIII, 1935 Constitution).

The 1973 Constitution similarly authorizes the Supreme Court to

"Promulgate rules concerning pleading, practice, and procedure in all courts, the admission to the
practice of law, and the integration of the Bar, which, however, may be repealed, altered, or
supplemented by the National Assembly. Such rules shall provide a simplified and inexpensive
procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade,
and shall not diminish, increase or modify substantive rights" (Sec. 5[5], Art. X, 1973
Constitution).

Sections 13 and 14 of Rule 112 of the Revised Rules of Court merely implement Section 3 of
Article III of the 1935 Constitution (now Section 3 of Article IV of the 1973 Constitution).
Section 13 of Rule 112 of the Revised Rules of Court was not an innovation as it merely restated
Section 13 of General Order No. 58, Section 37 of Act No. 1627, and Sections 2 and 4 of Rule
108 of the 1940 Rules of Court, in obedience to its rule-making authority under Section 13,
Article VIII of the 1935 Constitution. Rule 112 does not modify substantive rights but continues
the procedure already operative prior to the 1935 Constitution.

WE have ruled that Rule 108 of the 1940 Rules of Court, which is the predecessor of Rule 112 of
the 1964 Revised Rules of Court, is an adjective or procedural rule (Bustos v. Lucero, 81 Phil.
640).

While admitting that Courts of First Instance were previously clothed with the power of
preliminary investigation by virtue of Section 37 of Act 1627, nevertheless it is argued that this
same section was amended when the Judiciary Act of 1948 was enacted since under Section 99
of said Judiciary Act, "All laws and rules inconsistent with the provisions of this Act" were
repealed. The inconsistency, it is claimed, lies in the fact that while the authority of municipal
courts and city courts to conduct preliminary investigation was reiterated in said Judiciary Act,
there was no mention therein whether Court of First Instance Judges are still possessed of such
authority.

If such repeal was intended, it is unconstitutional; because the Constitutions of 1935 and 1973
vest in the judge the power to issue a warrant of arrest or search warrant after conducting a
preliminary investigation or examination. Congress could not divest the court of such authority
as the Constitution does not permit it, for the constitutional guarantee on arrest or search warrant
is not qualified by some such phrase as "unless otherwise provided by law." For a clearer
appreciation, the Constitutional guarantee on arrest and search warrant reads: jgc:chanrobles.com.ph

"(3) The rights of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon
probable cause, to be determined by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched, and the persons or things to be seized" (Art. III, 1935 Constitution, Emphasis
supplied).

"SECTION 3. The right of the people to be secure in the persons, houses, papers, and effects
against unreasonable searches and seizures for whatever nature and for any purpose shall not be
violated, and no search warrant or warrant of arrest shall issue except upon probable cause to be
determined by the judge, or such other responsible officer as may be authorized by law, after
examination under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched, and the persons or things to be seized" (Art, IV,
1973 Constitution, Emphasis supplied).

It is clear from the aforequoted provisions of the 1973 Constitution that until now only the judge
can determine the existence of probable cause and can issue the warrant of arrest. No law or
presidential decree has been enacted or promulgated vesting the same authority in a particular
"responsible officer." Hence, the 1973 Constitution, which was ratified and took effect on
January 17, 1973, should govern the last four cases, namely, Nos. L-36376, L-38688, L-39525
and L-40031, which arose after January 17, 1973.

But even under the 1935 Constitution, the term seizures or seized comprehends arrest. Thus, in
Vivo versus Montesa (July 29, 1968, 24 SCRA 155), reiterating the doctrines in the cases of Qua
Chee Gan, Et. Al. v. Deportation Board (L-20280, Sept. 30, 1963) and Morano v. Vivo (L-
22196, June 30, 1967, 20 SCRA 1963) 162), WE ruled unanimously through Mr. Justice J.B.L.
Reyes: jgc:chanrobles.com.ph

"Nevertheless, we are of the opinion that the issuance of warrants of arrest by the Commissioners
of Immigration, solely for purposes of Investigation and before a final order of deportation is
issued, conflicts with paragraph 3, Section 1, of Article III (Bill of Rights) of our Constitution,
providing: chanrob1es virtual 1aw library
‘3. The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon
probable cause, to be determined by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched, and the persons or things to be seized.’

"It will be noted that the power to determine probable cause for warrants of arrest is limited by
the Philippine Constitution to judges exclusively, unlike in previous organic laws and the Federal
Constitution of the United States that left undetermined which public officials could determine
the existence of probable cause. And in Qua Chee Gan, Et. Al. v. Deportation Board, L-20280,
promulgated on September 30, 1963, this Court pointed out that Executive Order No. 69, of July
29, 1947, issued by President Roxas, in prescribing the procedure for deportation of aliens, only
required the filing of a bond by an alien under investigation, but did not authorize his arrest.

"Discussing the implications of the provision of our Bill of Rights on the issuance of
administrative warrants of arrest, this Court said in the same case: chanrob1es virtual 1aw library

x        x       x

‘Under the express terms of our Constitution it is, therefore, even doubtful whether the arrest of
an individual may be ordered by any authority other than the judge if the purpose is merely to
determine the existence of probable cause, leading to an administrative investigation. The
Constitution does not distinguish between warrants in a criminal case and administrative
warrants in administrative proceedings. And if one suspected of having committed a crime is
entitled to a determination of the probable cause against him, by a judge, why should one
suspected of a violation of an administrative nature deserve less guarantee? Of course it is
different if the order of arrest is issued to carry out a final finding of a violation, either by an
executive or legislative officer or agency duly authorized for (he purpose, as then the warrant is
not that mentioned in the Constitution which is issuable only on probable cause. Such, for
example, would be a warrant of arrest of to carry out a final order of deportation, or to effect
compliance of an order of contempt.

‘The(n) contention of the Solicitor general that the arrest of foreigner is necessary to carry into
effect the power of deportation is valid only when, as already stated, there is already an order of
deportation. To carry out the order of deportation, the President obviously has the power to order
the arrest of the deportee. But, certainly, during the investigation, it is not indispensable that the
alien be arrested. It is enough, as was true before the executive order of President Quirino, that a
bond be required to insure the appearance of the alien during the investigation, as was authorized
in the executive order of President Roxas.’

"Following the same trend of thought, this Court, in Morano v. Vivo (L-22196, 30 June 1967, 20
SCRA, 562; Phil. 1967-B, page 741), distinguished between administrative arrest in the
execution of a final deportation order and arrest as preliminary to further administrative
proceedings. The Court remarked in said case: chanrob1es virtual 1aw library

‘Section 1(3), Article III of the Constitution, we perceive, does not require judicial intervention
in the execution of a final order of deportation issued in accordance with law. The constitutional
limitation contemplates an order of arrest in the exercise of judicial power as a step preliminary
or incidental to prosecution or proceedings for a given offense or administrative action, not as a
measure indispensable to carry out a valid decision by a competent official, such as a legal order
of deportation, issued by the Commissioner of Immigration, in pursuance of a valid legislation’"
(L-24576, pp. 161-162).

The foregoing doctrine was last reiterated in Ang, Et. Al. versus Galang, etc. (L-21426, Oct. 22,
1975).

Under the American Constitution, the aforesaid terms include not only arrest but also invitations
for police interview or interrogation as well as stop-and-frisk measures. In the 1968 case of Terry
versus Ohio, the United States Supreme Court enunciated: jgc:chanrobles.com.ph

". . . It is quite plain that the Fourth Amendment governs ‘seizures’ of the person which do not
eventuate in a trip to the station house and prosecution for crime — ‘arrests’ in traditional
terminology. It must be recognized that whenever a police officer accosts individual and restrains
his freedom to walk away, he has ‘seized’ that person (392 U.S. 1, 16 88 S.C.T. 1868, 20 L.E.D.
2d 889; 903 [1968].)"

That the aforesaid terms seizures and seized signify arrest was deliberately intended by the
founding fathers of the 1935 Constitution, which words are likewise employed in 1973 the
Constitution, Delegate Miguel Cuaderno categorically recounted: jgc:chanrobles.com.ph

"An amendment affecting the issuance of an order of arrest and search warrant, to effect that in
each case the order must be supported by the testimony of the complainant and the witnesses he
may produce, made before the judge, and also an amendment providing that prisoners charged
with capital offenses shall be bailable before conviction unless the evidence of guilt is strong,
were approved upon the initiative of Delegate Francisco. It was the prevailing opinion among
many delegates that some courts had been rather easy in the issuance of orders of arrest or search
warrants, and quite strict in the matter of bail in cases where persons had been charged with
capital offenses" (Cuaderno, the Framing of the Philippine Constitution, p. 65 Emphasis
supplied).

Delegate Jose Aruego added: jgc:chanrobles.com.ph

"During the debates on the draft, Delegate Francisco proposed an amendment which was adopted
by the Convention, the amendment being the insertion of the words, to be determined by the
judge after examination under oath or affirmation of the complainant and the witnesses he may
produce. The idea in the Francisco amendment was not new in the Philippines; for it was
provided for in the Code of Criminal Procedure of the Philippines. The dignification of the idea
into a constitutional provision was zealously insisted upon, in order to make the principle more
sacred to the judges and to prosecuting officials. The amendment was intended to be a remedy
for the evils pointed out in the debates, caused by the issuance of search warrants, many of which
were in blank, upon mere affidavits on facts most of which were generally found afterwards to
be false" (Aruego, Framing of the Philippine Constitution, Vol. I, p. 160).

The term "judge" employed in both Constitutions cannot be so limited to "municipal judge" as to
exclude the judges of the Court of First Instance and Circuit Criminal Court (People v.
Manantan, 5 SCRA 684, 690-695). WE are not justified to create a distinction where the
Constitution does not make any.

In general, "judge" is a term employed to designate a public officer selected to preside and to
administer the law in a court of justice (Ark. — School Dist. No. 18 v. Grubbs Special School
Dist., 43 S.W. 2d 765, 766, 184 Ark. 863, 48 CJS 946).

According to intent or context, the term "judge" may include an assistant judge (N.H. — City
Bank v. Young, 43 N.H. 457); a county or court justice (Mo. State v. O’Gorman, 75 Mo. 370); a
justice of the peace (N.Y. People v. Mann 97 N.Y. 530, 49 Am. R. 556).

The term "a judge", in Gen. St. C. 47, Art. 1 & 22, providing that "a judge" may cause any house
or building to be searched for the protection of gambling tables, etc., is equivalent to "any judge"
and comprehends an entire class, and cannot, without disturbing its meaning, be restricted in its
applicants to judges of county, city and police courts and therefore the judge of the Louisville
Law and equity court has authority to issue a warrant for such a search (Com. v. Watzel, 2 S.W.
123, 125, 84 KY 537).

Admittedly, Section 99 of the Judiciary Act contains a repealing clause which provides: "All
laws and rules inconsistent with the provisions of this Act are hereby repealed." The question
may now be asked: What is the nature of this repealing clause? It is certainly not an expressly
repealing clause because it fails to identify or designate the Act or Acts that are intended to be
repealed (Sutherland, Statutory Construction, [1934], Vol. 1, p. 467). Rather, it is a clause which
predicates the intended repeal upon the condition that a substantial and an irreconcilable conflict
must be found in existing and prior Acts. Such being the case, the presumption against implied
repeals and the rule against strict construction regarding implied repeals apply ex propio vigore;
for repeals and amendments by implication are not favored (Jalandoni v. Andaya, L-23894, Jan.
24, 1974, 55 SCRA 261, 265-6; Villegas v. Subido, L-31711, Sept. 30, 1971, 41 SCRA 190;
Quimseng v. Lachica, 2 SCRA 182). Indeed, the legislature is presumed to know the existing
laws; so that, if a repeal is intended, the proper step is to so express it with specificity
(Continental Insurance Co. v. Simpson, 8 F[2] 439; Webb v. Bailey, 151 Ore. 2188, 51 P[2] 832;
State v. Jackson, 120 W. Va. 521, 199 S.E. 876). The failure to add a specific repealing clause
indicates that the intent was not to repeal any existing law (Crawford, Construction of Statute,
1940 ed., p. 631), unless an irreconcilable inconsistency and repugnancy exist between the terms
of the new and of the old statues (Iloilo Palay and Corn Planters Association, Inc. v. Feliciano,
13 SCRA 377). Here, there is not such inconsistency.

To begin with, the two laws, although with a common objective, refer to different persons and
different methods applicable under different circumstances. Thus, while Section 87 of the
Judiciary Act provides that municipal judges and judges of city courts may also conduct
preliminary investigation for any offense alleged to have been committed within their respective
municipalities and cities . . .; Section 37 of Act 1627 reads in part that such power of "every
justice of the peace including the justice of Manila, . . . shall not exclude the proper judge of the
Court of First Instance . . . from exercising such jurisdiction."
cralaw virtua1aw library

WE should not, and cannot, adopt the theory of implied repeal except upon a clear and
unequivocal expression of the will of Congress, which is not manifest from the language of
Section 99 of the Judiciary Act, apart from the fact that Congress by itself alone had no power to
amend the Constitution.

The opposite view likewise denies that the jurisdiction of our courts to conduct preliminary
investigation could be traced to the Constitution, adding that the Charter of Manila and other
cities confer upon the respective fiscals of said cities the power to conduct preliminary
investigations.

The organic acts prior to the 1935 Constitution did not prohibit the conferment of such a power
to conduct preliminary examination or investigation on quasi-judicial officers like the city fiscals
of chartered cities (see the instructions of President McKinley to First Philippine Commission,
the Philippine Bill 1902, Jones Law of 1916, and the Revised Administrative Code of 1917).

But the power thus granted to the Manila City Fiscals (and later to City Fiscals and City
Attorneys of other chartered cities) to conduct preliminary investigations did not and does not
include the authority to issue warrants of arrest and search warrants, which warrants the courts
alone can issue then as now. The constitutional guarantee against unreasonable searches and
seizures under the 1935 Constitution provides that only a judge can issue a search warrant or
warrant of arrest after he has by himself personally determined the existence of probable cause
upon his examination under oath of the complainant and his witnesses; although as ruled in one
may rely on the investigation conducted by the fiscal or prosecutor (Amarga v. Abbas, 98 Phil.
739, 741-42).

It is patent that under the 1935 Constitution, only the "judge" is directed to conduct a preliminary
examination issuance of the warrant of arrest by express constitutional conferment.

But the 1973 Constitution empowers the National to grant the power to issue search warrants or
warrants of arrest after conducting the necessary preliminary examination to "other responsible
officer." Until such a law is enacted by the National Assembly, only the judge can validly
conduct a preliminary examination for the issuance of a warrant of arrest or search warrant.
Even when the fiscal or prosecutor conducts the preliminary investigation, only the judge can
validly issue the warrant of arrest. This is confirmed by Section 6 of Rule 112 of the 1964
Revised Rules of Court, which directs the judge to issue the warrant of arrest when he is
"satisfied from the preliminary examination conducted by him or by the investigating officer
(referring to the fiscal or the municipal mayor under Sec. 5) that the offense complained of has
been committed and that there is reasonable ground to believe that the accused has committed
it, . . ."
cralaw virtua1aw library

Thus, the power of the city prosecutors to conduct preliminary examination and investigation
(minus the authority to issue warrants of arrest or search warrant) is purely statutory. On the
other hand, the judge derives his authority not only from the Rules of Court, but also — and
originally — from the fundamental law to which all other laws are subordinate. If an objection
must be raised, it should against the authority of the fiscal to exercise such power preliminary
investigation, which, as has been stated, is merely statutory. No less than the Constitution confers
upon the judge the power to conduct such examination and investigation.

The case of Albano versus Alvarez (December 22, 1965, 15 SCRA 518) is authority for the
proposition that Sec. 13 of Rule 112 of the 1964 Revised Rules of Court contains an innovation,
which requires that, when the Court of First Instance itself conducts the preliminary
investigation, it must not only conduct the preliminary examination proper but preliminary
investigation as well since Section 13 commands the Court of First Instance to conduct both the
preliminary examination and investigation simultaneously (523-524). Said Albano case does not
negate, but recognizes the authority judge of the Court of First Instance to conduct such
preliminary investigation.

It is true that this COURT held expressly and implied under the charters of the cities of Manila,
Bacolod and Cebu, the power to conduct preliminary investigation is exclusively lodged in the
city prosecutor (Sayo v. Chief of Police, 80 Phil. 859, 868-869, May 12, 1948; Espiritu v. De la
Rosa, 45 OG 196; Montelibano v. Ferrer, 97 Phil. 228, June 23, 1955; and Balite v. People, 18
SCRA 280, 285-286, Sept. 30, 1966). But the charters of the cities of Manila, Bacolod and Cebu
do not contain any provision making such grant of power to city prosecutors exclusive of the
courts (Kapunan, Criminal Procedure, 3rd Edition, 1960), which cannot be deprived of such
authority to conduct preliminary examination because said prerogative of the courts emanates
from the Constitution itself. Unless the Constitution is amended, the judge cannot be divested of
such a power, which is an essential element of the cardinal right of an individual against
unreasonable searches and seizures. If the present city charters conferred on city fiscals or city
prosecutors the power to issue warrants of arrest, it would be an unconstitutional grant of power
under the 1935 Constitution. As heretofore intimated, the present practice or rule of court
authorizing the judge to issue warrants of arrest based on the preliminary investigation conducted
by the city fiscal, seems violate the 1935 Constitution, which requires the judge himself to
conduct the preliminary examination. Neither the judge nor the law can delegate such an
authority to another public officer without trenching upon this constitutional guarantee against
unreasonable searches and seizures.

The theory that Courts of First Instance and Circuit Criminal Courts Judges cannot exercise the
power of preliminary examination and investigation, and that as a necessary consequence, they
cannot also issue warrants of arrest, obviously collides with the 1935 and 1973 Constitutions.

Moreover, the theory tolerates an unthinkable — be anomalous — situation wherein the Court of
First Instance the Circuit Criminal Court must wait for prosecutors and courts inferior to them to
conduct the preliminary examination to issue the needed warrants of arrest before they could
effectively exercise their power to try and decide the cases falling under their respective
jurisdiction. This situation would make the Courts of First Instance and Circuit Criminal Courts
totally dependent upon state prosecutors and municipal courts, which are inferior to them, for
their proper functioning. The possibility that the administration of criminal justice stand still will
not be very remote.

The two-fold purpose for which the Circuit Criminal Courts were created was to alleviate the
burden of the regular Courts of First Instance and accelerate the disposition of criminal cases
filed therein (Osmeña v. Secretary of Justice, supra; People v. Gutierrez, supra). Such being the
admitted purpose, the power to conduct preliminary examination must necessarily attach to the
duties of a Circuit Criminal Court Judge; for aside from being one of the instruments by which a
case may be accelerated and disposed of, it is a duty which truly lies within the scope of the
office, essential to the accomplishment of the main purpose for which the office was created
(Sec. 3, Art. III, 1935 Constitution; Sec. 3, Art. IV, 1973 Constitution), even if regarded as
incidental and collateral, is germane to, and serves to promote the accomplishment of the
principal purpose (Lo Cham v. Ocampo, 77 Phil. 635).

WE RULE that both Section 1(3), Article III of the 1935 Constitution and Section 3, Article IV
of the 1973 constitution provide the source of the power of all Judges, including Judges of the
Court of First Instance, the Circuit Criminal Courts, and other courts of equivalent rank, to
conduct the examination to determine probable cause before the issuance of the warrant of arrest
and therefore sustain the proceedings conducted by respondent Judge leading to the issuance of
the warrants of arrest and his referral of the cases to the fiscal or other government prosecutor for
the filing of the corresponding information.
The basic source of the power of the Courts of First Instance to conduct preliminary examination or
investigation from May 14, 1935 to January 17, 1973, is paragraph 3 of Section 1 of Article III of the 1935
Constitution, which guarantees "the right of the people to be secure in their persons . . . against
unreasonable . . . seizures . . . and no warrants shall issue but upon probable cause, to be determined by
the judge after an examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing . . . the persons . . . to be seized." Construing the foregoing
constitutional right against unreasonable searches and seizures, the Supreme Court, through then Chief
Justice Ricardo Paras, pronounced that the determination of the existence of "probable cause must
depend upon the judgment and discretion of the judge . . . issuing the warrant. . . . His conclusion as to
whether ‘probable cause’ existed or not is final and conclusive. If he is satisfied that ‘probable cause’
exists from the facts stated in the complaint, made upon the investigation by the prosecuting attorney,
then his conclusion is sufficient upon which to issue a warrant of arrest. He may, however, if he is not
satisfied, call such witnesses as he may deem necessary before issuing the warrant . . . There is no law
which prohibits him from reaching the conclusion that ‘probable cause’ exists from the statement of the
prosecuting attorney alone, or any other person whose statement or affidavit is entitled to credit in the
opinion of the judge . . . The preliminary investigation conducted by the petitioner (Provincial Fiscal)
under Republic Act No. 732 . . . does not, as correctly contended by the respondent Judge, dispense with
the latter’s duty to exercise his judicial power of determining, before issuing the corresponding warrant
of arrest, whether or not probable cause exists therefor. The Constitution vests such power in the
respondent judge who, however, may rely on the facts stated in the information filed after preliminary
investigation by the prosecuting attorney" (Amarga v. Abbas, March 28, 1956, 98 Phil. 739, 741-742).

While the power to conduct preliminary examination may be delegated by law to government
prosecutors, only the judge can issue the warrant of arrest under the 1935 Constitution and prior
thereto (Sayo, Et. Al. v. Chief of Police, Et. Al. 80 Phil. 859; Lino v. Fugoso, 77 Phil. 933; Hashim v. Boncan,
71 Phil. 216). The valid seizure of a person can only be executed through a lawful warrant of arrest.
Arrest without a warrant can only be legally effected by a police officer or private individual a) when the
person to be arrested has committed, is actually committing, or is about to commit an offense in his
presence; b) when an offense has in fact been committed, and he has reasonable ground to believe that
the person to be arrested has committed it; and c) when the person to be arrested is a prisoner who has
escaped from a penal establishment or place where he is serving final judgment or temporarily confined
while his case is pending, or has escaped while being transferred from one confinement to another (Sec.
6, Rule 113, 1964 Revised Rules of Court).

In all other cases, there must be a valid warrant of arrest. When the seizure of a person is made without
a warrant of arrest or with a warrant of arrest which is not based on a determination by the judge of the
existence of probable cause, the arrest becomes unreasonable and therefore unconstitutional.

Sections 2 and 4 of Rule 108 of the 1940 Rules of Court expressly confer on the municipal or city judge,
the City Fiscal and the Judge of the Court of First Instance the power to conduct preliminary examination
or investigation.

AND IN G.R. NO. L-34038, THE ORDER OF RESPONDENT JUDGE DATED JULY 6, 1971 IS HEREBY SET ASIDE
AS NULL AND VOID INSOFAR AS THE SAME DISMISSED THE CRIMINAL CASE WITH PREJUDICE AND
INSOFAR AS THE SAME DIRECTED THE RETURN TO PRIVATE RESPONDENT THEREIN OF THE ARTICLES
SEIZED FROM HIM WHICH ARE NOW SUBJECT OF SEIZURE PROCEEDINGS BEFORE THE CUSTOMS
AUTHORITIES, AND THE WRIT OF PRELIMINARY INJUNCTION ISSUED THEREIN IS HEREBY MADE
PERMANENT. NO COSTS.
[G.R. No. L-22008. November 3, 1924. ]

THE PEOPLE OF THE PHILIPPINE ISLANDS, Plaintiff-Appellee, v. JULIO POMAR,

Defendant-Appellant.

Araneta & Zaragoza for Appellant.

Attorney-General Villa-Real for Appellee.

SYLLABUS

1. POLICE POWER; SECTIONS 13 AND 15 OF ACT NO. 3071, LEGALITY OR

CONSTITUTIONALITY OF. — Held: the facts stated in the opinion, that the provisions of said
sections had not been adopted within the reasonable and lawful exercise of the police power of
the state, and were therefore unconstitutional and illegal.

2. POLICE POWER OF THE STATE, DEFINED. — By reason of the constant growth of public
opinion in a rapidly developing civilization, the term "police power" has never been, and we do
not believe can be, clearly and definitely defined and circumscribed. Advancing civilization is
bringing within the police power of the state today things which were not thought of as being
within such power yesterday. The development of civilization, the rapidly increasing population,
the growth of public opinion, with an increasing desire on the part of the masses and of the
government to look after and care for the interests of the individuals of the state, have brought
within the police power many questions for regulation which formerly were not so considered. In
a republican form of government, public sentiment wields a tremendous influence upon what the
state may or may not do for the protection of the health and public morals of its people.
Generally it may be said: "The police power is the power vested in the legislature of the state to
make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and
ordinances, either with penalties or without, which are not repugnant to the constitution as they
shall judge to be for the good and welfare of the commonwealth, and of the subjects of the state." c

DECISION

JOHNSON, J. :

The only question presented by this appeal is whether or not the provisions of sections 13 and 15
of Act No. 3071 are a reasonable and lawful exercise of the police power of the state.

It appears from the record that on the 26th day of October, 1923, the prosecuting attorney of the
City of Manila presented a complaint in the Court of First Instance, accusing the defendant of a
violation of section 13 in connection with section 15 of Act No. 3071 of the Philippine
Legislature. The complaint alleged:jgc:chanrobles.com.ph

"That on or about the 27th day of August, 1923, and sometime prior thereto, in the City of
Manila, Philippine Islands, the said accused, being the manager and person in charge of La Flor
de la Isabela, a tobacco factory pertaining to La Compañia General de Tabacos de Filipinas, a
corporation duly authorized to transact business in said city, and having, during the year 1923, in
his employ and service as cigar-maker in said factory, a woman by the name of Macaria Fajardo,
whom he granted vacation leave which began on the 16th day of July, 1923, by reason o her
pregnancy, did then and there willfully, unlawfully, and feloniously fail and refuse to pay to said
woman the sum of eighty pesos (P80), Philippine currency, to which she was entitled as her
regular wages corresponding to thirty days before and thirty days after her delivery and
confinement which took place on the 12th day of August, 1923, despite and over the demands
made by her, the said Macaria Fajardo, upon said accused, to do so." cralaw virtua1aw library

To said complaint, the defendant demurred, alleging that the facts therein contained did not
constitute an offense. The demurrer was overruled, whereupon the defendant answered and
admitted at the trial all of the allegations contained in the complaint, and contended that the
provisions of said Act No. 3071, upon which the complaint was based, were illegal,
unconstitutional and void.

Upon a consideration of the facts charged in the complaint and admitted by the defendant, the
Honorable C. A. Imperial, judge, found the defendant guilty of the alleged offense described in
the complaint, and sentenced him to pay a fine of P50, in accordance with the provisions of
section 15 of said Act, to suffer subsidiary imprisonment in case of insolvency, and to pay the
costs.

From that sentence the defendant appealed, and now makes the following assignments of error:
That the court erred in overruling the demurrer; in convicting him of the crime charged in the
information; and in not declaring section 13 of Act No. 3071 unconstitutional.

Section 13 of Act No. 3071 is as follows: jgc:chanrobles.com.ph

"Every person, firm or corporation owning or managing a factory, shop or place of labor of any
description shall be obliged to grant to any woman employed by it as laborer who may be
pregnant, thirty days vacation with pay before and another thirty days after confinement:
Provided, That the employer shall not discharge such laborer without just cause, under the
penalty of being required to pay to her wages equivalent to the total of two months counted from
the day of her discharge." cralaw virtua1aw library

Section 15 of the same Act is as follows: jgc:chanrobles.com.ph

"Any person, firm or corporation violating any of the provisions of this Act shall be punished by
a fine of not less than fifty pesos nor more than two hundred and fifty, or by imprisonment for
not less than ten days nor more than six months, or both, in the discretion of the court.

"In the case of firms or corporations, the presidents, directors or managers thereof or, in their
default, the persons acting in their stead, shall be criminally responsible for each violation of the
provisions of this Act."cralaw virtua1aw library

Said section 13 was enacted by the Legislature of the Philippine Islands in the exercise of its
supposed police power, with the praiseworthy purpose of safeguarding the health of pregnant
women laborers in "factory, shop or place of labor of any description," and of insuring to them,
to a certain extent, reasonable support for one month before and one month after their delivery.
The question presented for decision by the appeal is whether said Act has been adopted in the
reasonable and lawful exercise of the police power of the state.

In determining whether a particular law promulgated under the police power of the state is, in
fact, within said power, it becomes necessary, first, to determine what that power is, its limits
and scope. Literally hundreds of decisions have been promulgated in which definitions of the
police power have been attempted. An examination of all of said decisions will show that the
definitions are generally limited to particular cases and examples, which are as varied as they are
numerous.

By reason of the constant growth of public opinion in a developing civilization, the term "police
power" has never been, and we do not believe can be, clearly and definitely defined and
circumscribed. One hundred years ago, for example, it is doubtful whether the most eminent
jurist, or court, or legislature would have for a moment thought that, by any possibility, a law
providing for the destruction of a building in which alcoholic liquors were sold, was within a
reasonable and lawful exercise of the police power. (Mugler v. Kansas, 123 U. S., 623.) The
development of civilization, the rapidly increasing population, the growth of public opinion, with
a desire on the part of the masses and of the government to look after and care for the interests of
the individuals of the state, have brought within the police power of the state many questions for
regulation which formerly were not so considered. In a republican form of government public
sentiment wields a tremendous influence what the state may or may not do, for the protection of
the health and public morals of the people. Yet, neither public sentiment, nor a desire to
ameliorate the public morals of the people of the state will justify the promulgation of a law
which contravenes the express provisions of the fundamental law of the people — the
constitution of the state.

A definition of the police power of the state must depend upon the particular law and the
particular facts to which it is so applied. The many definitions which have been given by the
highest courts may be examined, however, for the purpose of giving us a compass or guide to
assist us in arriving at a correct conclusion in the particular case before us. Sir William
Blackstone, one of the greatest expounders of the common law, defines the police power as "the
due regulation and domestic order of the kingdom, whereby the inhabitants of a state, like
members of a well-governed family, are bound to conform their general behavior to the rules of
propriety, good neighborhood, and good manners, and to be decent, industrious, and inoffensive
in their respective stations." (4 Blackstone’s Commentaries, 162.)

Mr. Jeremy Bentham, in his General View of Public Offenses, gives us the following definition:
"Police is in general a system of precaution, either for the prevention of crimes or of calamities.
Its business may be distributed into eight distinct branches: (1) Police for the prevention of
offenses; (2) police for the prevention of calamities; (3) police for the prevention of endemic
diseases; (4) police of charity; (5) police of interior communications; (6) police of public
amusements; (7) police for recent intelligence; (8) police for registration."
cralaw virtua1aw library

Mr. Justice Cooley, perhaps the greatest expounder of the American Constitution, says: "The
police power is the power vested in the legislature by the constitution to make, ordain, and
establish all manner of wholesome and reasonable laws, statutes, and ordinances, either with
penalties or without, not repugnant to the constitution, as they shall judge to be for the good and
welfare of the commonwealth, and of the subjects of the same. . . ." (Cooley’s Constitutional
Limitations, p. 830.)

In the case of Commonwealth of Massachusetts v. Alger (7 Cushing, 53), we find a very

comprehensive definition of the police power of the state. In that case it appears that the colony
of Massachusetts in 1647 adopted an Act to preserve the harbor of Boston and to prevent
encroachments therein. The defendant unlawfully erected, built, and established in said harbor,
and extended beyond said lines and into and over the tide water of the Commonwealth a certain
superstructure, obstruction and encumbrance. Said Act provided a penalty for its violation of a
fine of not less than $1,000 nor more than $5,000 for every offense, and for the destruction of
said buildings, or structures, or obstructions as a public nuisance. Alger was arrested and placed
on trial for violation of said Act. His defense was that the Act of 1647 was illegal and void,
because it permitted the destruction of private property without compensation. Mr. Justice Shaw,
speaking for the court in that case, said: "We think it is a settled principle, growing out of the
nature of well-ordered civil society, that every holder of property, however absolute and
unqualified may be his title, holds it under the implied liability that his use of it may be so
regulated, that it shall not be injurious to the equal enjoyment of others having an equal right to
the enjoyment of their property, nor injurious to the rights of the community. All property in this
commonwealth, as well that in the interior as that bordering on tide waters, is derived directly or
indirectly from the government and held subject to those general regulations, which are
necessary to the common good and general welfare. Rights of property, like all other social and
conventional rights, are subject to such reasonable limitations in their enjoyment, as shall prevent
them from being injurious, and to such reasonable restraints and regulations established by law,
as the legislature, under the governing and controlling power vested in them by the constitution,
may think necessary and expedient." Mr. Justice Shaw further adds: ". . . The power we allude to
is rather the police power, the power vested in the legislature by the constitution, to make, ordain
and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with
penalties or without, not repugnant to the constitution, as they shall judge to be fore the good and
welfare of the commonwealth, and of the subjects of the same." cralaw virtua1aw library

This court has, in the case of Case v. Board of Health and Heiser (24 Phil., 250), in discussing
the police power of the state, had occasion to pay: ". . . It is a well settled principle, growing out
of the nature of well-ordered and civilized society, that every holder of property, however
absolute and unqualified may be his title, holds it under the implied liability that his use of it
shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of
their property to the rights of the community. All property in the state is held subject to its
general regulations, which are necessary to the common good and general welfare. Rights of
property, like all other social and conventional rights, are subject to such reasonable limitations
in their enjoyment as shall prevent them from being injurious, and to such reasonable restraints
and regulations, established by law, as the legislature, under the governing and controlling power
vested in them by the constitution, may think necessary and expedient. The state, under the
police power, is possessed with plenary power to deal with all matters relating to the general
health, morals, and safety of the people, so long as it does not contravene any positive inhibition
of the organic law and providing that such power is not exercised in such manner as to justify the
interference of the courts to prevent positive wrong and oppression." cralaw virtua1aw library

Many other definitions have been given not only by the Supreme Court of the United States but
by the Supreme Court of every state of the Union. The foregoing definitions, however, cover the
general field of all of the definitions, found in jurisprudence. From all of the definitions we
conclude that it is much easier to perceive and realize the existence and sources of the police
power than to exactly mark its boundaries, or prescribe limits to its exercise by the legislative
department of the government.

The most recent definition which has been called to our attention is that found in the case of
Adkins v. Children’s Hospital of the District of Columbia (261 U. S., 525). In that case the
controversy arose in this way: A children’s hospital employed a number of women at various
rates of wages, which were entirely satisfactory to both the hospital and the employees. A hotel
company employed a woman as elevator operator at $35 per month and two meals a day under
healthy and satisfactory conditions, and she did not risk to lose her position as she could not earn
so much anywhere else. Her wages were less than the minimum fixed by a board created under a
law for the purpose of fixing a minimum wage for women and children, with a penalty providing
a punishment for a failure or refusal to pay the minimum wage fixed. The wage paid by the hotel
company of $35 per month and two meals a day was less than the minimum wage fixed by said
board. By reason of the order of said board, the hotel company, was about to discharge her, as it
was unwilling to pay her more and could not giver her employment at that salary without risking
the penalty of a fine and imprisonment under the law. She brought action to enjoin the hotel
company from discharging her upon the ground that the enforcement of the "Minimum Wage
Act" would deprive her of her employment and wages without due process of law, and that she
could not get as good a position anywhere else. The constitutionality of the Act was squarely
presented to the Supreme Court of the United States for decision.

The Supreme Court of the United States held that said Act was void on the ground that the right
to contract about one’s own affairs was a part of the liberty of the individual under the
constitution, and that while there was no such thing as absolute freedom of contract, and it was
necessarily subject to a great variety of restraints, yet none of the exceptional circumstances,
which at times justify a limitation upon one’s right to contract for his own services, applied in the
particular case.

In the course of the decision in that case (Adkins v. Children’s Hospital of the District of
Columbia, 261 U. S., 525), Mr. Justice Sutherland, after a statement of the fact and making
reference to the particular law, said:
jgc:chanrobles.com.ph

"The statute now under consideration is attacked upon the ground that it authorizes an
unconstitutional interference with the freedom of contract included within the guarantees of the
due process clause of the 5th Amendment. That the right to contract about one’s affairs is part of
the liberty of the individual by this clause is settled by the decisions of this court, and is no
longer open to question. Within this liberty are contracts of employment of labor. In making such
contracts, generally speaking, the parties have an equal right to obtain from each other the best
terms they can as the result of private bargaining. (Allgeyer v. Louisiana, 165 U.S., 578, 591;
Adair v. United States, 208 U. S., 161; Muller v. Oregon, 208 U. S., 412, 421).

x        x       x

"The law takes account of the necessities of only one party to the contract. It ignores the
necessities of the employer by compelling him to pay not less than a certain sum, not only
whether the employee is capable of earning it, but irrespective of the ability of his business to
sustain the burden, generously leaving him, of course, the privilege of abandoning his business
as an alternative for going on at a loss. Within the limits of the minimum sum, he is precluded,
under penalty of fine and imprisonment, from adjusting compensation to the differing merits of
his employees. It compels him to pay at least the sum fixed in any event, because the employee
needs it, but requires no service of equivalent value from the employee. It (the law) therefore
undertakes to solve but one-half of the problem. The other half is the establishment of a
corresponding standard of efficiency; and this forms no part of the policy of the legislation,
although in practice the former half without the latter must lead to ultimate failure, in accordance
with the inexorable law that no one can continue indefinitely to take out more than he puts in
without ultimately exhausting the supply. The law . . . takes no account of periods of distress and
business depression, of crippling losses, which may leave the employer himself without adequate
means of livelihood. To the extent that the sum fixed exceeds the fair value of the services
rendered, it amounts to a compulsory exaction from the employer for the support of a partially
indigent person, for whose condition there rests upon him no peculiar responsibility, and
therefore, in effect, arbitrarily shifts to his shoulders a burden which, if it belongs to anybody,
belongs to society as a whole.

"The feature of this statute which, perhaps more than any other, puts upon it the stamp of
invalidity is that it exacts from the employer an arbitrary payment for a purpose and upon basis
having no casual connection with his business, or the contract, or the work the employee engages
to do. The declared basis, as already pointed out, is not the value of the service rendered, but the
extraneous circumstance that the employee needs to get a prescribed sum of money to insure her
subsistence, health and morals. . . . The necessities of the employee are alone considered, and
these arise outside of the employment, are the same when there is no employment, and as great
in one occupation as in another. . . . In principle, there can be no difference between the case of
selling labor and the case of selling goods. If one goes to the butcher, the baker, or grocer to buy
food, he is morally entitled to obtain the worth of his money, but he is not entitled to more. If
what he gets is worth what he pays, he is not justified in demanding more simply because he
needs more; and the shopkeeper, having dealt fairly and honestly in that transaction, is not
concerned in any peculiar sense with the question of his customer’s necessities. Should a statute
undertake to vest in a commission power to determine the quantity of food necessary for
individual support, and require the shopkeeper, if he sell to the individual at all, to furnish that
quantity at not more than a fixed maximum, it would undoubtedly fall before the constitutional
test. The fallacy of any argument in support of the validity of such a statute would be quickly
exposed. The argument in support of that now being considered is equally fallacious, though the
weakness of it may not be so plain. . . ." cralaw virtua1aw library

It has been said that the particular statute before us is required in the interest of social justice for
whose and freedom of contract may lawfully be subjected to restraint. The liberty of the
individual to do as he pleases, even in innocent matters, is not absolute. That liberty must
frequently yield to the common good, and the line beyond which the power of interference may
not be pressed is neither definite nor unalterable, but may be made to move, within limits not
well defined, with changing needs and circumstances.

The late Mr. Justice Harlan, in the case of Adair v. United States (208 U. S., 161, 174), said that
the right of a person to sell his labor upon such terms as he deems proper is, in its essence, the
same as the right of the purchaser of labor to prescribe the conditions upon which he will accept
such labor from the person offering to sell. In all such particulars the employer and the employee
have equality of right, and any legislation that disturbs that equality is an arbitrary interference
with the liberty of contract, which no government can legally justify in a free land, under a
constitution which provides that no person shall be deprived of his liberty without due process of
law.

Mr. Justice Pitney, in the case of Coppage v. Kansas (236 U. S., 1, 14), speaking for the Supreme
Court of the United States, said: ". . . Included in the right of personal liberty and the right of
private property — partaking of the nature of each — is the right to make contracts for the
acquisition of property. Chief among such contracts is that of personal employment, by which
labor and other services are exchanged for money or other forms of property. If this right be
struck down or arbitrarily interfered with, there is a substantial impairment of liberty in the long
established constitutional sense. The right is as essential to the laborer as to the capitalist, to the
poor as to the rich; for the vast majority of persons have no other honest way to begin to acquire
property, save by working for money." cralaw virtua1aw library

The right to liberty includes the right to enter into contracts and to terminate contracts. In the
case of Gillespie v. People (188 Ill., 176, 183-185) it was held that a statute making it unlawful
to discharge an employee because of his connection with any lawful labor organization, and
providing a penalty therefor, is void, since the right to terminate a contract, subject to liability to
respond in a civil action for an unwarranted termination, is within the protection of the state and
Federal constitutions which guarantee that no person shall be deprived of life, liberty or property
without due process of law. The court said in part: ". . . One citizen cannot be compelled to give
employment to another citizen, nor can anyone be compelled to be employed against his will.
The Act of 1893, now under consideration, deprives the employer of the right to terminate his
contract with his employee. The right to terminate such a contract is guaranteed by the organic
law of the state. The legislature is forbidden to deprive the employer or employee of the exercise
of that right. The legislature has no authority to pronounce the performance of an innocent act
criminal when the public health, safety, comfort or welfare is not interfered with. The statute in
question says that, if a man exercises his constitutional right to terminate a contract with his
employee, he shall, without a hearing, be punished as for the commission of a crime.

x        x       x

"Liberty includes not only the right to labor, but to refuse to labor, and, consequently, the right to
contract to labor or for labor, and to terminate such contracts, and to refuse to make such
contracts. The legislature cannot prevent persons, who are sui juris, from laboring, or from
making such contracts as they may see fit to make relative to their own lawful labor; nor has it
any power by penal laws to prevent any person, with or without cause, from refusing to employ
another or to terminate a contract with him, subject only to the liability to respond in a civil
action for a unwarranted refusal to do that which has been agreed upon. Hence, we are of the
opinion that this Act contravenes those provisions of the state and Federal constitutions, which
guarantee that no person shall be deprived of life, liberty or property without due process of
law."cralaw virtua1aw library

The statute in question is exactly analogous to the "Minimum Wage Act" referred to above. In
section 13 it will be seen that no person, firm, or corporation owning or managing a factory,
shop, or place of labor of any description, can make a contract with a woman, without incurring
the obligation, whatever the contract of employment might be, unless also promise to pay to such
woman employed as a laborer, who may become pregnant, he wages for thirty days before and
thirty days after confinement. In other words, said section creates a term or condition in every
contract made by every person, firm, or corporation with any woman who may, during the course
of her employment, become pregnant, and a failure to include in said contract the terms fixed by
the law, makes the employer criminally liable and subject to a fine and imprisonment. Clearly,
therefore, the law has deprived, every person, firm or corporation owning or managing a factory,
shop or place of labor of any description within the Philippine Islands, of his right to enter into
contracts of employment upon such terms as he and the employee may agree upon. The law
creates a term in every such contract, without the consent of the parties. Such persons are,
therefore, deprived of their liberty to contract. The constitution of the Philippine Islands
guarantees to every citizen his liberty and one of his liberties is the liberty to contract.

It is believed and confidently asserted that no case can be found, in civilized society and well-
organized governments, where individuals have been deprived of their property, under the police
power of the state, without compensation, except in cases where the property in question was
used for the purpose of violating some law legally adopted, or constitutes a nuisance. Among
such cases may be mentioned" Apparatus used in counterfeiting the money of the state; firearms
illegally possessed; opium possessed in violation of law; apparatus used for gambling in
violation of law; buildings and property used for the purpose of violating laws prohibiting the
manufacture and sale of intoxicating liquors; and all cases in which the property itself has
become a nuisance and dangerous and detrimental to the public health, morals and general
welfare of the state. In all of such cases, and in many more which might be cited, the destruction
of the property is permitted in the exercise of the police power of the state. But it must first be
established that such property was used as the instrument for the violation of a valid existing law.
(Mugler v. Kansas, 123 U. S., 623; Slaughter-House Cases, 16 Wall. [U. S. ], 36; Butchers’
Union, etc., Co. v. Crescent City, etc., Co., 111 U. S., 746; John Stuart Mill — "On Liberty," 28,
29.)

Without further attempting to define what are the peculiar subjects or limits of the police power,
it may safely be affirmed, that every law for the restraint and punishment of crimes, for the
preservation of the public peace, health, and morals, must come within this category. But the
state, when providing by legislation for the protection of the public health, the public morals, or
the public safety, is subject to and is controlled by the paramount authority of the constitution of
the state, and will not be permitted to violate rights secured or guaranteed by that instrument or
interfere with the execution of the powers and rights guaranteed to the people under their law —
the constitution. (Mugler v. Kansas, 123 U. S., 623.)

The police power of the state is a growing and expanding power. As civilization develops and
public conscience becomes awakened, the police power may be extended, as has been
demonstrated in the growth of public sentiment with reference to the manufacture and sale of
intoxicating liquors. But that power cannot grow faster than the fundamental law of the state, nor
transcend or violate the express inhibition of the people’s law — the constitution. If the people
desire to have the police power extended and applied to conditions and things prohibited by the
organic law, they must first amend that law.

It will also be noted from an examination of said section 13, that it takes no account of contracts
for the employment of women by the day nor by the piece. The law is equally applicable to each
case. It will hardly be contended that the person, firm or corporation owning or managing a
factory, shop or place of labor, who employs women by the day or by the piece, could be
compelled under the law to pay for sixty days during which no services were rendered.

It has been decided in a long line of decisions of the Supreme Court of the United States, that the
right to contract about one’s affairs is a part of the liberty of the individual, protected by the "due
process of law" clause of the constitution (Allgeyer v. Louisiana, 165 U. S., 578, 591; New York
Life Ins. Co. v. Dodge, 246 U. S., 357, 373, 374; Coppage v. Kansas, 236 U. S., 1, 10, 14; Adair
v. United States, 208 U. S., 161; Lochner v. New York, 198, U. S., 45, 49; Muller v. Oregon, 208
U. S., 412, 421.)

The rule in this jurisdiction is, that the contracting parties may establish any agreements, terms,
and conditions they may deem advisable, provided they are not contrary to law, morals or public
policy. (Art. 1255, Civil Code.)

For all of the foregoing reasons, we are fully persuaded, under the facts and the law, that the
provisions of section 13, of Act No. 3071 of the Philippine Legislature, are unconstitutional and
void, in that they violate and are contrary to the provisions of the first paragraph of section 3 of
the Act of Congress of the United States of August 29, 1916. (Vol. 12, Public Laws, p. 238.)

Therefore, the sentence of the lower court is hereby revoked, the complaint is hereby dismissed,
and the defendant is hereby discharged from the custody of the law, with costs de oficio. So
ordered.
RAUL L. LAMBINO and ERICO B.G.R. No. 174153

AUMENTADO, TOGETHER WITH

6,327,952REGISTERED VOTERS,

Petitioners,

- versus -

THE COMMISSION ON ELECTIONS,

Respondent.

DECISION
 
 
CARPIO, J.:
 

The Case

cralawThese are consolidated petitions on the Resolution dated 31 August 2006 of the
Commission on Elections (COMELEC') denying due course to an initiative petition to amend the
1987 Constitution.

Antecedent Facts

cralawOn 15 February 2006, petitioners in G.R. No. 174153, namely Raul L. Lambino and
Erico B. Aumentado (Lambino Group'), withother groups 1[1] and individuals, commenced

1
gathering signatures for an initiative petition to change the 1987 Constitution.On 25 August 2006,
the Lambino Group filed a petition with the COMELEC to hold a plebiscite that will ratify their
initiative petition under Section 5(b) and (c)2[2] and Section 73[3] of Republic Act No. 6735 or the
Initiative and Referendum Act (RA6735').

The Lambino Group alleged that their petition had the support of 6,327,952 individuals
constituting at least twelve per centum (12%) of all registered voters, with each legislative district
represented by at least three per centum (3%) of its registered voters.The Lambino Group also
claimed that COMELEC election registrars had verified the signatures of the 6.3 million
individuals.

The Lambino Groups initiative petition changes the 1987 Constitution by modifying Sections 1-7 of
Article VI (Legislative Department) 4[4] and Sections 1-4 of Article VII (Executive Department) 5
[5] and by adding Article XVIII entitled 'Transitory Provisions. 6[6] These proposed changes will
shift the present Bicameral-Presidential system to a Unicameral-Parliamentary form of
government.The Lambino Group prayed that after due publication of their petition, the
COMELEC should submit the following proposition in a plebiscite for the voters' ratification:

DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND

VII OF THE 1987 CONSTITUTION, CHANGING THE FORM OF
GOVERNMENT FROM THE PRESENT BICAMERAL-PRESIDENTIAL
TO A UNICAMERAL-PARLIAMENTARY SYSTEM, AND PROVIDING
ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY
SHIFT FROM ONE SYSTEM TO THE OTHER?

6
  

cralawOn 30 August 2006, the Lambino Group filed an Amended Petition with the
COMELEC indicating modifications in the proposed Article XVIII (Transitory Provisions) of their
initiative.7[7]

The Ruling of the COMELEC

cralawOn 31 August 2006, the COMELEC issued its Resolution denying due course to the
Lambino Group's petition for lack of an enabling law governing initiative petitions to amend the
Constitution. The COMELEC invoked this Court's ruling in Santiago v. Commission on
Elections8[8]declaring RA 6735 inadequate to implement the initiative clause on proposals to
amend the Constitution.9[9]

cralawIn G.R. No. 174153, the Lambino Group prays for the issuance of the writs of
certiorari and mandamus to set aside the COMELEC Resolution of 31 August 2006 and to compel
the COMELEC to give due course to their initiative petition. The Lambino Group contends that
the COMELEC committed grave abuse of discretion in denying due course to their petition since
Santiagoisnot a binding precedent. Alternatively, the Lambino Group claims that Santiagobinds
only the parties to that case, and their petition deserves cognizance as an expression of the 'will of
the sovereign people.

9
 cralawIn G.R. No. 174299, petitioners (Binay Group') pray that the Court require respondent
COMELEC Commissioners to show cause why theyshould not be cited in contempt for the
COMELEC's verification of signatures and forentertaining the Lambino Group's petition despite
the permanent injunction in Santiago. The Court treated the Binay Group's petition as an
opposition-in-intervention.

cralawIn his Comment to the Lambino Group's petition, the Solicitor General joined causes
with the petitioners, urging the Court to grant the petition despite the Santiagoruling. The Solicitor
General proposed that the Court treat RA 6735 and its implementing rules 'as temporary devises
to implement the system of initiative.

Various groups and individuals sought intervention,filing pleadings supporting or opposing the
Lambino Groups petition. The supporting intervenors 10[10] uniformly hold the view that the
COMELEC committed grave abuse of discretion in relying on Santiago. On the other hand, the
opposing intervenors11[11] hold the contrary view and maintain that Santiagois a binding
precedent. The opposing intervenors also challenged (1) the Lambino Group's standing to file the
petition; (2) the validity of the signature gathering and verification process; (3) the Lambino
Group's compliance with the minimum requirement for the percentage of voters supporting an
initiative petition under Section 2, Article XVII of the 1987 Constitution; 12[12] (4) the nature of
the proposed changes as revisions and not mere amendments as provided under Section 2, Article
XVII of the 1987 Constitution; and (5) the Lambino Group's compliancewith the requirement in
Section 10(a) of RA 6735 limiting initiativepetitions to only one subject.

cralawThe Court heard the parties and intervenors in oral arguments on 26 September 2006.
After receiving the parties memoranda, the Court considered the case submitted for resolution.

10

11

12
 

The Issues

cralawThe petitions raise the following issues:

1.     Whether the Lambino Groups initiative petition complies with Section 2, Article XVII of
the Constitution on amendments to the Constitution through a people's initiative;
 
2.     Whether this Court should revisit its ruling in Santiagodeclaring RA 6735 'incomplete,
inadequate or wanting in essential terms and conditions' to implement the initiative clause
on proposals to amend the Constitution; and
 
3.     Whether the COMELEC committed grave abuse of discretion in denying due course to the
Lambino Group's petition.

 
The Ruling of the Court
 
 
There is no merit to the petition.
 

The Lambino Group miserably failed to comply with the basic requirements of the Constitution for
conducting a people's initiative.Thus, there is even no need to revisit Santiago, as the present
petition warrants dismissal based alone on the Lambino Group's glaring failure to comply with the
basic requirements of the Constitution.For following the Court's ruling in Santiago, no grave abuse
of discretion is attributable to the Commision on Elections.
  

1.        The Initiative Petition Does Not Comply with Section 2, Article XVII ofthe Constitution on Direct
Proposal by the People

Section 2, Article XVII of the Constitution is the governing constitutional provision that allows a
people's initiative to propose amendments to the Constitution.This section states:

 
Sec. 2.Amendments to this Constitution may likewise be directly proposed by
the people through initiative upon a petition of at least twelve per centum of
the total number of registered voters of which every legislative district must
be represented by at least three per centum of the registered voters therein. x
x x x (Emphasis supplied)

cralawThe deliberations of the Constitutional Commission vividly explain the meaning of an

amendment 'directly proposed by the people through initiative upon a petition, thus:

MR. RODRIGO: cralawLet us look at the mechanics. Let us say some voters
want to propose a constitutional amendment. Is the draft of the proposed
constitutional amendment ready to be shown to the people when they are
asked to sign?
 
MR. SUAREZ: cralawThat can be reasonably assumed, Madam
President.
 
MR. RODRIGO: cralawWhat does the sponsor mean? The draft is ready
and shown to them before they sign. Now, who prepares the draft?
 
MR. SUAREZ: cralawThe people themselves, Madam President.
 
 MR. RODRIGO: cralawNo, because before they sign there is already a draft
shown to them and they are asked whether or not they want to propose this
constitutional amendment.
 
MR. SUAREZ: cralawAs it is envisioned, any Filipino can prepare that
proposal and pass it around for signature.13[13](Emphasis supplied)

Clearly, the framers of the Constitution intended that the 'draft of the proposed constitutional
amendment should be 'ready and shown to the people 'before they sign such proposal.The framers
plainly stated that 'before they sign there is already a draft shown to them.The framers also
'envisioned that the people should sign on the proposal itself because the proponents must 'prepare
that proposal and pass it around for signature.

The essence of amendments 'directly proposed by the people through initiative upon a petition is
that the entire proposal on its face is a petition by the people.This means two essential elements
must be present. First, the people must author and thus sign the entire proposal.No agent or
representative can sign on their behalf.Second, as an initiative upon a petition, the proposal must be
embodied in a petition.

These essential elements are present only if the full text of the proposed amendments is first shown
to the people who express their assent by signing such complete proposal in a petition.Thus, an
amendment is 'directly proposed by the people through initiative upon a petition only if the people
sign on a petition that contains the full text of the proposed amendments.

The full text of the proposed amendments may be either written on the face of the petition, or
attached to it.If so attached, the petition must state the fact of such attachment.This is an assurance
that every one of the several millions of signatories to the petition had seen the full text of the

13
proposed amendments before signing.Otherwise, it is physically impossible, given the time
constraint, to prove that every one of the millions of signatories had seen the full text of the
proposed amendments before signing.

The framers of the Constitution directly borrowed 14[14] the concept of people's initiative from the
United States where various State constitutions incorporate an initiative clause.In almost all
States15[15] which allow initiative petitions, the unbending requirement is that the people must
first see the full text of the proposed amendments before they sign to signify their assent, and that
the people must sign on an initiative petition that contains the full text of the proposed
amendments.16[16]chanroblesvirtuallawlibrary

The rationale for this requirement has been repeatedly explained in several decisions of various
courts.Thus, in Capezzuto v. State Ballot Commission, the Supreme Court of Massachusetts,
affirmed by the First Circuit Court of Appeals, declared:

[A] signature requirement would be meaningless if the person supplying the

signature has not first seen what it is that he or she is signing. Further, and
more importantly, loose interpretation of the subscription requirement can
pose a significant potential for fraud. A person permitted to describe orally
the contents of an initiative petition to a potential signer, without the signer
having actually examined the petition, could easily mislead the signer by, for
example, omitting, downplaying, or even flatly misrepresenting, portions of
the petition that might not be to the signer's liking. This danger seems
particularly acute when, in this case, the person giving the description is the
drafter of the petition, who obviously has a vested interest in seeing that it
gets the requisite signatures to qualify for the ballot.17[17](Boldfacing and
underscoring supplied)

14

15

16

17
  

cralawLikewise, in Kerr v. Bradbury,18[18]the Court of Appeals of Oregon explained:

The purposes of 'full text provisions that apply to amendments by initiative

commonly are described in similar terms. x x x (The purpose of the fulltext
requirement is to provide sufficient information so that registered voters can
intelligently evaluate whether to sign the initiativepetition.'); x x x
(publication of full text of amended constitutional provision required because
it is 'essential for the elector to have x x x the section which is proposed to be
added to or subtracted from. If he is to vote intelligently, he must have this
knowledge. Otherwise in many instances he would be required to vote in the
dark.') (Emphasis supplied)
 
 
Moreover, 'an initiative signer must be informed at the time of signing of the nature and effect of
that which is proposed and failure to do so is 'deceptive and misleading which renders the initiative
void.19[19]

Section 2, Article XVII of the Constitution does not expressly state that the petition must set forth
the full text of the proposed amendments.However, the deliberations of the framers of our
Constitution clearly show that the framers intended to adopt the relevant American jurisprudence
on people's initiative.In particular, the deliberations of the Constitutional Commission explicitly
reveal that the framers intended that the people must first see the full text of the proposed
amendments before they sign, and that the people must sign on a petition containing such full
text.Indeed, Section 5(b) of Republic Act No. 6735, the Initiative and Referendum Act that the
Lambino Group invokes as valid, requires that the people must sign the 'petition x x x as
signatories.

18

19
The proponents of the initiative secure the signatures from the people. The proponents secure the
signatures in their private capacity and not as public officials.The proponents are not disinterested
parties who can impartially explain the advantages and disadvantages of the proposed amendments
to the people.The proponents present favorably their proposal to the people and do not present the
arguments against their proposal.The proponents, or their supporters, often pay those who gather
the signatures.

Thus, there is no presumption that the proponents observed the constitutional requirements in
gathering the signatures.The proponents bear the burden of proving that they complied with the
constitutional requirements in gathering the signatures - that the petition contained, or
incorporated by attachment, the full text of the proposed amendments.

The Lambino Group did not attach to their present petition with this Court a copy of the paper
that the people signed as their initiative petition. The Lambino Group submitted to this Court a
copy of a signature sheet20[20] after the oral arguments of 26 September 2006 when they filed their
Memorandum on 11 October 2006.The signature sheet with this Court during the oral arguments
was the signature sheet attached21[21] to the opposition in intervention filed on 7 September 2006
by intervenor Atty. Pete Quirino-Quadra.

The signature sheet attached to Atty. Quadra's opposition and the signature sheet attached to the
Lambino Group's Memorandum are the same.We reproduce below the signature sheet in full:

Province: City/Municipality: No. of  

     
Verified
Legislative District: Barangay:
Signatures:

20

21
 

PROPOSITION:DO YOU APPROVE OF THE AMENDMENT OF ARTICLES VI AND

VII OF THE 1987 CONSTITUTION, CHANGING THE FORM OF GOVERNMENT
FROM THE PRESENT BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-
PARLIAMENTARY SYSTEM OF GOVERNMENT, IN ORDER TO ACHIEVE
GREATER EFFICIENCY, SIMPLICITY AND ECONOMY IN GOVERNMENT; AND
PROVIDING AN ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE
ORDERLY SHIFT FROM ONE SYSTEM TO ANOTHER?

I hereby APPROVE the proposed amendment to the 1987 Constitution.My signature herein which
shall form part of the petition for initiative to amend the Constitution signifies my support for the filing
thereof.

             

Precinct Name Address Birthdate Signature Verification

Number
Last Name, First MM/DD/YY
Name,M.I.
1            
2            
3            
4            
5            
6            
7            
8            
9            
1            
0

____________________________________________________
Barangay Official Witness Witness

(Print Name and Sign) (Print Name and Sign)(Print Name and Sign)

There is not a single word, phrase, or sentence of text of the Lambino Group's proposed changes in
the signature sheet.Neither does the signature sheet state that the text of the proposed changes is
attached to it.Petitioner Atty. Raul Lambino admitted this during the oral arguments before this
Court on 26 September 2006.

 
 

The signature sheet merely asks a question whether the people approve a shift from the Bicameral-
Presidential to the Unicameral-Parliamentary system of government. The signature sheet does not
show to the people the draft of the proposed changes before they are asked to sign the signature
sheet.Clearly, the signature sheet is not the 'petition that the framers of the Constitution envisioned
when they formulated the initiative clause in Section 2, Article XVII of the Constitution.

Petitioner Atty. Lambino, however, explained that during the signature-gathering from February
to August 2006, the Lambino Group circulated, together with the signature sheets, printed copies of
the Lambino Group's draft petition which they later filed on 25 August 2006 with the
COMELEC.When asked if his group also circulated the draft of their amended petition filed on 30
August 2006 with the COMELEC, Atty. Lambino initially replied that they circulated
both.However, Atty. Lambino changed his answer and stated that what his group circulated was
the draft of the 30 August 2006 amended petition, not the draft of the 25 August 2006 petition.

The Lambino Group would have this Court believe that they prepared the draft of the 30 August
2006 amended petition almost seven months earlier in February 2006 when they started gathering
signatures. Petitioner Erico B. Aumentado's 'Verification/Certification of the 25 August 2006
petition, as well as of the 30 August 2006 amended petition, filed with the COMELEC, states as
follows:

I have caused the preparation of the foregoing [Amended] Petition in my

personal capacity as a registered voter, for and on behalf of the Union of
Local Authorities of the Philippines, as shown by ULAP Resolution No. 2006-
02 hereto attached, and as representative of the mass of signatories hereto.
(Emphasis supplied)

The Lambino Group failed to attach a copy of ULAP Resolution No. 2006-02 to the present
petition.However, the 'Official Website of the Union of Local Authorities of the Philippines 22[22]
has posted the full text of Resolution No. 2006-02, which provides:

RESOLUTION NO. 2006-02

RESOLUTION SUPPORTING THE PROPOSALS OF THE PEOPLE'S
CONSULTATIVE COMMISSION ON CHARTER CHANGE THROUGH

22
 PEOPLE'S INITIATIVE AND REFERENDUMAS A MODE OF
AMENDING THE 1987 CONSTITUTION
WHEREAS, there is a need for the Union of Local Authorities of the
Philippines (ULAP) to adopt a common stand on the approach to support the
proposals of the People's Consultative Commission on Charter Change;
WHEREAS, ULAP maintains its unqualified support to the agenda of Her
Excellency President Gloria Macapagal-Arroyo for constitutional reforms as
embodied in the ULAP Joint Declaration for Constitutional Reforms signed
by the members of the ULAP and the majority coalition of the House of
Representatives in Manila Hotel sometime in October 2005;
WHEREAS, the People's Consultative Commission on Charter Change
created by Her Excellency to recommend amendments to the 1987
Constitution has submitted its final report sometime in December 2005;
WHEREAS, the ULAP is mindful of the current political developments in
Congress which militates against the use of the expeditious form of amending
the 1987 Constitution;
WHEREAS, subject to the ratification of its institutional members and the
failure of Congress to amend the Constitution as a constituent assembly,
ULAP has unanimously agreed to pursue the constitutional reform agenda
through People's Initiative and Referendum without prejudice to other
pragmatic means to pursue the same;
WHEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED,
THAT ALL THE MEMBER-LEAGUES OF THE UNION OF LOCAL
AUTHORITIES OF THE PHILIPPINES (ULAP) SUPPORT THE
PORPOSALS (SIC) OF THE PEOPLE'S CONSULATATIVE (SIC)
COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S
INITIATIVE AND REFERENDUM AS A MODE OF AMENDING THE
1987 CONSTITUTION;
DONE, during the ULAP National Executive Board special meeting held on
14 January 2006 at the Century Park Hotel, Manila. 23[23](Underscoring
supplied)
ULAP Resolution No. 2006-02 does not authorize petitioner Aumentado to prepare the 25 August
2006 petition, or the 30 August 2006 amended petition, filed with the COMELEC.ULAP Resolution
No. 2006-02support(s) the porposals (sic) of the Consulatative (sic) Commission on Charter Change
through people's initiative and referendum as a mode of amending the 1987 Constitution. The
proposals of the Consultative Commission24[24] are vastly different from the proposed changes of
the Lambino Group in the 25 August 2006 petition or 30 August 2006 amended petition filed with
the COMELEC.

23

24
 

For example, the proposed revisions of the Consultative Commission affect all provisions of the
existing Constitution, from the Preamble to the Transitory Provisions.The proposed revisions have
profound impact on the Judiciary and the National Patrimony provisions of the existing
Constitution, provisions that the Lambino Group's proposed changes do not touch.The Lambino
Group's proposed changes purport to affect only Articles VI and VII of the existing Constitution,
including the introduction of new Transitory Provisions.

cralawThe ULAP adopted Resolution No. 2006-02 on 14 January 2006 or more than six
months before the filing of the 25 August 2006 petition or the 30 August 2006 amended petition
with the COMELEC.However, ULAP Resolution No. 2006-02 does not establish that ULAP or the
Lambino Group caused the circulation of the draft petition, together with the signature sheets, six
months before the filing with the COMELEC.On the contrary, ULAP Resolution No. 2006-02 casts
grave doubt on the Lambino Group's claim that they circulated the draft petition together with the
signature sheets. ULAP Resolution No. 2006-02 does not refer at all to the draft petition or to the
Lambino Group's proposed changes.

In their Manifestation explaining their amended petition before the COMELEC, the Lambino
Group declared:

After the Petition was filed, Petitioners belatedly realized that the proposed
amendments alleged in the Petition, more specifically, paragraph 3 of Section
4 and paragraph 2 of Section 5 of the Transitory Provisions were
inaccurately stated and failed to correctly reflect their proposed
amendments.

The Lambino Group did not allege that they were amending the petition because the amended
petition was what they had shown to the people during the February to August 2006 signature-
gathering.Instead, the Lambino Group alleged that the petition of 25 August 2006 'inaccurately
stated and failed to correctly reflect their proposed amendments.

cralawThe Lambino Group never alleged in the 25 August 2006 petition or the 30 August
2006 amended petition with the COMELEC that they circulated printed copies of the draft petition
together with the signature sheets.Likewise, the Lambino Group did not allege in their present
petition before this Court that they circulated printed copies of the draft petition together with the
signature sheets.The signature sheets do not also contain any indication that the draft petition is
attached to, or circulated with, the signature sheets.

It is only in their Consolidated Reply to the Opposition-in-Interventions that the Lambino Group
first claimed that they circulated the 'petition for initiative filed with the COMELEC, thus:

[T]here is persuasive authority to the effect that '(w)here there is not (sic)
fraud, a signer who did not read the measure attached to a referendum
petition cannot question his signature on the ground that he did not
understand the nature of the act. [82 C.J.S. S128h. Mo. State v. Sullivan, 224,
S.W. 327, 283 Mo. 546.] Thus, the registered voters who signed the signature
sheets circulated together with the petition for initiative filed with the
COMELEC below, are presumed to have understood the proposition
contained in the petition.(Emphasis supplied)

The Lambino Group's statement that they circulated to the people 'the petition for initiative filed
with the COMELEC appears an afterthought, made after the intervenors Integrated Bar of the
Philippines (Cebu City Chapter and Cebu Province Chapters) and Atty. Quadra had pointed out
that the signature sheets did not contain the text of the proposed changes.In their Consolidated
Reply, the Lambino Group alleged that they circulated 'the petition for initiative but failed to
mention the amended petition.This contradicts what Atty. Lambino finally stated during the oral
arguments that what they circulated was the draft of the amended petition of 30 August 2006.

The Lambino Group cites as authority Corpus Juris Secundum, stating that a signer who did not
read the measure attached to a referendum petition cannot question his signature on the ground
that he did not understand the nature of the act.The Lambino Group quotes an authority that cites
a proposed change attached to the petition signed by the people.Even the authority the Lambino
Group quotes requires that the proposed change must be attached to the petition.The same
authority the Lambino Group quotes requires the people to sign on the petition itself.

Indeed, it is basic in American jurisprudence that the proposed amendment must be incorporated
with, or attached to, the initiative petition signed by the people.In the present initiative, the
Lambino Group's proposed changes were not incorporated with, or attached to, the signature
sheets.The Lambino Group's citation of Corpus Juris Secundum pulls the rug from under their feet.

It is extremely doubtful that the Lambino Group prepared, printed, circulated, from February to
August 2006 during the signature-gathering period, the draft of the petition or amended petition
they filed later with the COMELEC.The Lambino Group are less than candid with this Court in
their belated claim that they printed and circulated, together with the signature sheets, the petition
or amended petition. Nevertheless, even assuming the Lambino Group circulated the amended
petition during the signature-gathering period, the Lambino Group admitted circulating only very
limited copies of the petition.

During the oral arguments, Atty. Lambino expressly admitted that they printed only 100,000 copies
of the draft petition they filed more than six months later with the COMELEC.Atty. Lambino
added that he also asked other supporters to print additional copies of the draft petition but he
could not state with certainty how many additional copies the other supporters printed.Atty.
Lambino could only assure this Court of the printing of 100,000 copies because he himself caused
the printing of these 100,000 copies.

Likewise, in the Lambino Group's Memorandum filed on 11 October 2006, the Lambino Group
expressly admits that 'petitioner Lambino initiated the printing and reproduction of 100,000 copies
of the petition for initiative x x x.25[25]This admission binds the Lambino Group and establishes
beyond any doubt that the Lambino Group failed to show the full text of the proposed changes to
the great majority of the people who signed the signature sheets.

Thus, of the 6.3 million signatories, only 100,000 signatories could have received with certainty one
copy each of the petition, assuming a 100 percent distribution with no wastage.If Atty. Lambino
and company attached one copy of the petition to each signature sheet, only 100,000 signature
sheets could have circulated with the petition.Each signature sheet contains space for ten
signatures.Assuming ten people signed each of these 100,000 signature sheets with the attached
petition, the maximum number of people who saw the petition before they signed the signature
sheets would not exceed 1,000,000.

With only 100,000 printed copies of the petition, it would be physically impossible for all or a great
majority of the 6.3 million signatories to have seen the petition before they signed the signature
sheets.The inescapable conclusion is that the Lambino Group failed to show to the 6.3 million
signatories the full text of the proposed changes. If ever, not more than one million signatories saw
the petition before they signed the signature sheets.

In any event, the Lambino Group's signature sheets do not contain the full text of the proposed
changes, either on the face of the signature sheets, or as attachment with an indication in the
signature sheet of such attachment.Petitioner Atty. Lambino admitted this during the oral
arguments, and this admission binds the Lambino Group. This fact is also obvious from a mere

25
reading of the signature sheet. This omission is fatal.The failure to so include the text of the
proposed changes in the signature sheets renders the initiative void for non-compliance with the
constitutional requirement that the amendment must be 'directly proposed by the people through
initiative upon a petition. The signature sheet is not the 'petition envisioned in the initiative clause
of the Constitution.

cralaw

For sure, the great majority of the 6.3 million people who signed the signature sheets did not see the
full text of the proposed changes before signing.They could not have known the nature and effect of
the proposed changes, among which are:

1.                 The term limits on members of the legislature will be lifted and thus
members of Parliament can be re-elected indefinitely; 26[26]
 
2.                 The interim Parliament can continue to function indefinitely until its
members, who are almost all the present members of Congress, decide to
call for new parliamentary elections.Thus, the members of the interim
Parliament will determine the expiration of their own term of office; 27[27]

3.                 Within 45 days from the ratification of the proposed changes, the interim
Parliament shall convene to propose further amendments or revisions to the
Constitution.28[28]

These three specific amendments are not stated or even indicated in the Lambino Group's
signature sheets.The people who signed the signature sheets had no idea that they were proposing
these amendments.These three proposed changes are highly controversial.The people could not

26

27

28
have inferred or divined these proposed changes merely from a reading or rereading of the contents
of the signature sheets.

During the oral arguments, petitioner Atty. Lambino stated that he and his group assured the
people during the signature-gathering that the elections for the regular Parliament would be held
during the 2007 local elections if the proposed changes were ratified before the 2007 local
elections.However, the text of the proposed changes belies this.

The proposed Section 5(2), Article XVIII on Transitory Provisions, as found in the amended
petition, states:

Section 5(2).The interim Parliament shall provide for the election of the
members of Parliament, which shall be synchronized and held
simultaneously with the election of all local government officials. x x x x
(Emphasis supplied)

Section 5(2) does not state that the elections for the regular Parliament will be held simultaneously
with the 2007 local elections.This section merely requires that the elections for the regular
Parliament shall be held simultaneously with the local elections without specifying the year.

Petitioner Atty. Lambino, who claims to be the principal drafter of the proposed changes, could
have easily written the word 'next before the phrase election of all local government officials. This
would have insured that the elections for the regular Parliament would be held in the next local
elections following the ratification of the proposed changes.However, the absence of the word 'next
allows the interim Parliament to schedule the elections for the regular Parliament simultaneously
with any future local elections.

 
Thus, the members of the interim Parliament will decide the expiration of their own term of
office.This allows incumbent members of the House of Representatives to hold office beyond their
current three-year term of office, and possibly even beyond the five-year term of office of regular
members of the Parliament.Certainly, this is contrary to the representations of Atty. Lambino and
his group to the 6.3 million people who signed the signature sheets.Atty. Lambino and his group
deceived the 6.3 million signatories, and even the entire nation.

This lucidly shows the absolute need for the people to sign an initiative petition that contains the
full text of the proposed amendments to avoid fraud or misrepresentation.In the present initiative,
the 6.3 million signatories had to rely on the verbal representations of Atty. Lambino and his group
because the signature sheets did not contain the full text of the proposed changes.The result is a
grand deception on the 6.3 million signatories who were led to believe that the proposed changes
would require the holding in 2007 of elections for the regular Parliament simultaneously with the
local elections.

The Lambino Group's initiative springs another surprise on the people who signed the signature
sheets.The proposed changes mandate the interim Parliament to make further amendments or
revisions to the Constitution. The proposed Section 4(4), Article XVIII on Transitory Provisions,
provides:

Section 4(4). Within forty-five days from ratification of these amendments,

the interim Parliament shall convene to propose amendments to, or revisions
of, this Constitution consistent with the principles of local autonomy,
decentralization and a strong bureaucracy. (Emphasis supplied)

During the oral arguments, Atty. Lambino stated that this provision is a 'surplusage and the Court
and the people should simply ignore it.Far from being a surplusage, this provision invalidates the
Lambino Group's initiative.
 

cralawSection 4(4) is a subject matter totally unrelated to the shift from the Bicameral-
Presidential to the Unicameral-Parliamentary system.American jurisprudence on initiatives
outlaws this as logrolling- when the initiative petition incorporates an unrelated subject matter in
the same petition.This puts the people in a dilemma since they can answer only either yes or no to
the entire proposition, forcing them to sign a petition that effectively contains two propositions, one
of which they may find unacceptable.

Under American jurisprudence, the effect of logrolling is to nullify the entire proposition and not
only the unrelated subject matter. Thus, in Fine v. Firestone,29[29] the Supreme Court of Florida
declared:

 
Combining multiple propositions into one proposal constitutes 'logrolling,
which, if our judicial responsibility is to mean anything, we cannot
permit.The very broadness of the proposed amendment amounts to
logrolling because the electorate cannot know what it is voting on-the
amendment's proponents' simplistic explanation reveals only the tip of the
iceberg.x x x xThe ballot must give the electorate fair notice of the proposed
amendment being voted on. x x x x The ballot language in the instant case
fails to do that.The very broadness of the proposal makes it impossible to
state what it will affect and effect and violates the requirement that proposed
amendments embrace only one subject.(Emphasis supplied)

Logrolling confuses and even deceives the people.In Yute Air Alaska v. McAlpine,30[30] the
Supreme Court of Alaska warned against 'inadvertence, stealth and fraud in logrolling:

Whenever a bill becomes law through the initiative process, all of the
problems that the single-subject rule was enacted to prevent are

29

30
 exacerbated.There is a greater danger of logrolling, or the deliberate
intermingling of issues to increase the likelihood of an initiative's passage,
and there is a greater opportunity for inadvertence, stealth and fraud in the
enactment-by-initiative process.The drafters of an initiative operate
independently of any structured or supervised process.They often emphasize
particular provisions of their proposition, while remaining silent on other
(more complex or less appealing) provisions, when communicating to the
public.x x x Indeed, initiative promoters typically use simplistic advertising
to present their initiative to potential petition-signers and eventual
voters.Many voters will never read the full text of the initiative before the
election.More importantly, there is no process for amending or splitting the
several provisions in an initiative proposal.These difficulties clearly
distinguish the initiative from the legislative process.(Emphasis supplied)

Thus, the present initiative appears merely a preliminary step for further amendments or revisions
to be undertaken by the interim Parliament as a constituent assembly.The people who signed the
signature sheets could not have known that their signatures would be used to propose an
amendment mandating the interim Parliament to propose further amendments or revisions to the
Constitution.

Apparently, the Lambino Group inserted the proposed Section 4(4) to compel the interim
Parliament to amend or revise again the Constitution within 45 days from ratification of the
proposed changes, or before the May 2007 elections.In the absence of the proposed Section 4(4), the
interim Parliament has the discretion whether to amend or revise again the Constitution.With the
proposed Section 4(4), the initiative proponents want the interim Parliament mandated to
immediately amend or revise again the Constitution.

However, the signature sheets do not explain the reason for this rush in amending or revising again
so soon the Constitution.The signature sheets do not also explain what specific amendments or
revisions the initiative proponents want the interim Parliament to make, and why there is a need
for such further amendments or revisions.The people are again left in the dark to fathom the
nature and effect of the proposed changes.Certainly, such an initiative is not 'directly proposed by
the people because the people do not even know the nature and effect of the proposed changes.

 
There is another intriguing provision inserted in the Lambino Group's amended petition of 30
August 2006.The proposed Section 4(3) of the Transitory Provisions states:

 
Section 4(3).Senators whose term of office ends in 2010 shall be members of
Parliament until noon of the thirtieth day of June 2010.

After 30 June 2010, not one of the present Senators will remain as member of Parliament if the
interim Parliament does not schedule elections for the regular Parliament by 30 June
2010.However, there is no counterpart provision for the present members of the House of
Representatives even if their term of office will all end on 30 June 2007, three years earlier than
that of half of the present Senators.Thus, all the present members of the House will remain
members of the interim Parliament after 30 June 2010.

The term of the incumbent President ends on 30 June 2010.Thereafter, the Prime Minister
exercises all the powers of the President.If the interim Parliament does not schedule elections for
the regular Parliament by 30 June 2010, the Prime Minister will come only from the present
members of the House of Representatives to the exclusion of the present Senators.

The signature sheets do not explain this discrimination against the Senators.The 6.3 million people
who signed the signature sheets could not have known that their signatures would be used to
discriminate against the Senators.They could not have known that their signatures would be used to
limit, after 30 June 2010, the interim Parliament's choice of Prime Minister only to members of the
existing House of Representatives.

cralawAn initiative that gathers signatures from the people without first showing to the
people the full text of the proposed amendments is most likely a deception, and can operate as a
gigantic fraud on the people.That is why the Constitution requires that an initiative must be
'directly proposed by the people x x x in a petition -meaning that the people must sign on a petition
that contains the full text of the proposed amendments.On so vital an issue as amending the nation's
fundamental law, the writing of the text of the proposed amendments cannot be hidden from the
people under a general or special power of attorney to unnamed, faceless, and unelected
individuals.

cralawThe Constitution entrusts to the people the power to directly propose amendments to
the Constitution.This Court trusts the wisdom of the people even if the members of this Court do
not personally know the people who sign the petition.However, this trust emanates from a
fundamental assumption:the full text of the proposed amendment is first shown to the people
before they sign the petition, not after they have signed the petition.

cralawIn short, the Lambino Group's initiative is void and unconstitutional because it
dismally fails to comply with the requirement of Section 2, Article XVII of the Constitution that the
initiative must be 'directly proposed by the people through initiative upon a petition.

2.        The Initiative Violates Section 2, Article XVII of the Constitution Disallowing Revision through
Initiatives

A people's initiative to change the Constitution applies only to an amendment of the Constitution
and not to its revision.In contrast, Congress or a constitutional convention can propose both
amendments and revisions to the Constitution.Article XVII of the Constitution provides:

ARTICLE XVII
AMENDMENTS OR REVISIONS
 
 Sec. 1.Any amendment to, or revision of, this Constitution may be
proposed by:
 
(1)             The Congress, upon a vote of three-fourths of all its Members,
or
(2)             A constitutional convention.
 
Sec. 2.Amendments to this Constitution may likewise be directly
proposed by the people through initiative x x x.(Emphasis supplied)
 
 
 

cralawArticle XVII of the Constitution speaks of three modes of amending the

Constitution.The first mode is through Congress upon three-fourths vote of all its Members.The
second mode is through a constitutional convention.The third mode is through a people's initiative.

cralawSection 1 of Article XVII, referring to the first and second modes, applies to '[ A]ny
amendment to, or revision of, this Constitution. In contrast, Section 2 of Article XVII, referring to
the third mode, applies only to '[A]mendments to this Constitution.This distinction was intentional
as shown by the following deliberations of the Constitutional Commission:

MR. SUAREZ: cralawThank you, Madam President.

 
May we respectfully call the attention of the Members of the Commission
that pursuant to the mandate given to us last night, we submitted this
afternoon a complete Committee Report No. 7 which embodies the proposed
provision governing the matter of initiative. This is now covered by Section 2
of the complete committee report. With the permission of the Members, may
I quote Section 2:
 
The people may, after five years from the date of the last
plebiscite held, directly propose amendments to this
Constitution thru initiative upon petition of at least ten percent
of the registered voters.
 
This completes the blanks appearing in the original Committee Report No.
7.This proposal was suggested on the theory that this matter of initiative,
which came about because of the extraordinary developments this year, has
 to be separated from the traditional modes of amending the Constitution as
embodied in Section 1. The committee members felt that this system of
initiative should be limited to amendments to the Constitution and should not
extend to the revision of the entire Constitution, so we removed it from the
operation of Section 1 of the proposed Article on Amendment or Revision. x
xxx
 
xxxx
 
MS. AQUINO: cralaw[I] am seriously bothered by providing this process
of initiative as a separate section in the Article on Amendment. Would the
sponsor be amenable to accepting an amendment in terms of realigning
Section 2 as another subparagraph (c) of Section 1, instead of setting it up as
another separate section as if it were a self-executing provision?
 
MR. SUAREZ: cralawWe would be amenable except that, as we clarified
a while ago, this process of initiative is limited to the matter of amendment
and should not expand into a revision which contemplates a total overhaul of
the Constitution. That was the sense that was conveyed by the Committee.
 
MS. AQUINO: cralawIn other words, the Committee was attempting to
distinguish the coverage of modes (a) and (b) in Section 1 to include the
process of revision; whereas, the process of initiation to amend, which is
given to the public, would only apply to amendments?
 
MR. SUAREZ: cralawThat is right. Those were the terms envisioned in
the Committee.
 
MS. AQUINO: cralawI thank the sponsor; and thank you, Madam
President.
 
xxxx
 
MR. MAAMBONG: cralawMy first question: Commissioner Davide's proposed
amendment on line 1 refers to "amendments." Does it not cover the word
"revision" as defined by Commissioner Padilla when he made the distinction
between the words "amendments" and "revision"?
 
MR. DAVIDE: cralawNo, it does not, because "amendments" and
"revision" should be covered by Section 1. So insofar as initiative is
concerned, it can only relate to "amendments" not "revision."
 
MR. MAAMBONG: cralawThank you.31[31](Emphasis supplied)

31
  

cralawThere can be no mistake about it.The framers of the Constitution intended, and wrote,
a clear distinction between 'amendment and 'revision of the Constitution. The framers intended,
and wrote, that only Congress or a constitutional convention may propose revisions to the
Constitution.The framers intended, and wrote, that a people's initiative may propose only
amendments to the Constitution.Where the intent and language of the Constitution clearly withhold
from the people the power to propose revisions to the Constitution, the people cannot propose
revisions even as they are empowered to propose amendments.

This has been the consistent ruling of state supreme courts in the United States.Thus, in McFadden
v. Jordan,32[32] the Supreme Court of California ruled:

 
The initiative power reserved by the people by amendment to the
Constitution x x x applies only to the proposing and the adopting or rejecting
of 'laws and amendments to the Constitution and does not purport to extend
to a constitutional revision.x x x xIt is thus clear that a revision of the
Constitution may be accomplished only through ratification by the people of
a revised constitution proposed by a convention called for that purpose as
outlined hereinabove.Consequently if the scope of the proposed initiative
measure (hereinafter termed 'the measure') now before us is so broad that if
such measure became law a substantial revision of our present state
Constitution would be effected, then the measure may not properly be
submitted to the electorate until and unless it is first agreed upon by a
constitutional convention, and the writ sought by petitioner should issue. x x
x x (Emphasis supplied)

Likewise, the Supreme Court of Oregon ruled in Holmes v. Appling:33[33]

It is well established that when a constitution specifies the manner in which it

may be amended or revised, it can be altered by those who favor
amendments, revision, or other change only through the use of one of the

32

33
 specified means.The constitution itself recognizes that there is a difference
between an amendment and a revision; and it is obvious from an
examination of the measure here in question that it is not an amendment as
that term is generally understood and as it is used in Article IV, Section
1.The document appears to be based in large part on the revision of the
constitution drafted by the 'Commission for Constitutional Revision
authorized by the 1961 Legislative Assembly, x x x and submitted to the 1963
Legislative Assembly.It failed to receive in the Assembly the two-third's
majority vote of both houses required by Article XVII, Section 2, and hence
failed of adoption, x x x.
 
While differing from that document in material respects, the measure
sponsored by the plaintiffs is, nevertheless, a thorough overhauling of the
present constitution x x x.
 
To call it an amendment is a misnomer.
 
Whether it be a revision or a new constitution, it is not such a measure as can
be submitted to the people through the initiative.If a revision, it is subject to
the requirements of Article XVII, Section 2(1); if a new constitution, it can
only be proposed at a convention called in the manner provided in Article
XVII, Section 1. x x x x

Similarly, in this jurisdiction there can be no dispute that a people's initiative can only propose
amendments to the Constitution since the Constitution itself limits initiatives to amendments.There
can be no deviation from the constitutionally prescribed modes of revising the Constitution.A
popular clamor, even one backed by 6.3 million signatures, cannot justify a deviation from the
specific modes prescribed in the Constitution itself.

As the Supreme Court of Oklahoma ruled in In re Initiative Petition No. 364:34[34]

 
It is a fundamental principle that a constitution can only be revised or
amended in the manner prescribed by the instrument itself, and that any
attempt to revise a constitution in a manner other than the one provided in
the instrument is almost invariably treated as extra-constitutional and
revolutionary.x x x xWhile it is universally conceded that the people are
sovereign and that they have power to adopt a constitution and to change
their own work at will, they must, in doing so, act in an orderly manner and
according to the settled principles of constitutional law.And where the

34
 people, in adopting a constitution, have prescribed the method by which the
people may alter or amend it, an attempt to change the fundamental law in
violation of the self-imposed restrictions, is unconstitutional. x x x
x(Emphasis supplied)

This Court, whose members are sworn to defend and protect the Constitution, cannot shirk from its
solemn oath and duty to insure compliance with the clear command of the Constitution―that a
people's initiative may only amend, never revise, the Constitution.

The question is, does the Lambino Group's initiative constitute an amendment or revision of the
Constitution?If the Lambino Group's initiative constitutes a revision, then the present petition
should be dismissed for being outside the scope of Section 2, Article XVII of the Constitution.

cralawCourts have long recognized the distinction between an amendment and a revision of a
constitution.One of the earliest cases that recognized the distinction described the fundamental
difference in this manner:

[T]he very term 'constitution implies an instrument of a permanent and

abiding nature, and the provisions contained therein for its revision indicate
the will of the people that the underlying principles upon which it rests, as
well as the substantial entirety of the instrument, shall be of a like permanent
and abiding nature. On the other hand, the significance of the term
'amendment implies such an addition or change within the lines of the
original instrument as will effect an improvement, or better carry out the
purpose for which it was framed.35[35](Emphasis supplied)

35
Revision broadly implies a change that alters a basic principle in the constitution, like altering the
principle of separation of powers or the system of checks-and-balances.There is also revision if the
change alters the substantial entirety of the constitution, as when the change affects substantial
provisions of the constitution. On the other hand, amendment broadly refers to a change that adds,
reduces, or deletes without altering the basic principle involved.Revision generally affects several
provisions of the constitution, while amendment generally affects only the specific provision being
amended.

In California where the initiative clause allows amendments but not revisions to the constitution
just like in our Constitution, courts have developed a two-part test: the quantitative test and the
qualitative test.The quantitative test asks whether the proposed change is 'so extensive in its
provisions as to change directly the 'substantial entirety of the constitution by the deletion or
alteration of numerous existing provisions. 36[36]The court examines only the number of provisions
affected and does not consider the degree of the change.

The qualitative test inquires into the qualitative effects of the proposed change in the constitution.
The main inquiry is whether the change will 'accomplish such far reaching changes in the nature of
our basic governmental plan as to amount to a revision. 37[37]Whether there is an alteration in the
structure of government is a proper subject of inquiry.Thus, 'a change in the nature of [the] basic
governmental plan includes 'change in its fundamental framework or the fundamental powers of its
Branches.38[38]A change in the nature of the basic governmental plan also includes changes that
'jeopardize the traditional form of government and the system of check and balances. 39
[39]chanroblesvirtuallawlibrary

Under both the quantitative and qualitative tests, the Lambino Group's initiative is a revision and
not merely an amendment.Quantitatively, the Lambino Group's proposed changes overhaul two
articles -Article VI on the Legislature and Article VII on the Executive -affecting a total of 105

36

37

38

39
provisions in the entire Constitution. 40[40]Qualitatively, the proposed changes alter substantially
the basic plan of government, from presidential to parliamentary, and from a bicameral to a
unicameral legislature.

cralawA change in the structure of government is a revision of the Constitution, as when the
three great co-equal branches of government in the present Constitution are reduced into two.This
alters the separation of powers in the Constitution.A shift from the present Bicameral-Presidential
system to a Unicameral-Parliamentary system is a revision of the Constitution.Merging the
legislative and executive branches is a radical change in the structure of government.

The abolition alone of the Office of the President as the locus of Executive Power alters the
separation of powers and thus constitutes a revision of the Constitution.Likewise, the abolition
alone of one chamber of Congress alters the system of checks-and-balances within the legislature
and constitutes a revision of the Constitution.

By any legal test and under any jurisdiction, a shift from aBicameral-Presidential to a Unicameral-
Parliamentary system, involving the abolition of the Office of the President and the abolition of one
chamber of Congress, is beyond doubt a revision, not a mere amendment. On the face alone of the
Lambino Group's proposed changes, it is readily apparent that the changes will radically alter the
framework of government as set forth in the Constitution.Father Joaquin Bernas, S.J., a leading
member of the Constitutional Commission, writes:

An amendment envisages an alteration of one or a few specific and separable

provisions. The guiding original intention of an amendment is to improve
specific parts or to add new provisions deemed necessary to meet new
conditions or to suppress specific portions that may have become obsolete or

40
 that are judged to be dangerous. In revision, however, the guiding original
intention and plan contemplates a re-examination of the entire document, or
of provisions of the document which have over-all implications for the entire
document, to determine how and to what extent they should be altered. Thus,
for instance a switch from the presidential system to a parliamentary system
would be a revision because of its over-all impact on the entire constitutional
structure. So would a switch from a bicameral system to a unicameral system
be because of its effect on other important provisions of the Constitution.41
[41](Emphasis supplied)

In Adams v. Gunter,42[42] an initiative petition proposed the amendment of the FloridaState

constitution to shift from a bicameral to a unicameral legislature.The issue turned on whether the
initiative was defective and unauthorized where [the] proposed amendment would x x x affect
several other provisions of [the] Constitution.The Supreme Court of Florida, striking down the
initiative as outside the scope of the initiative clause, ruled as follows:

 
The proposal here to amend Section 1 of Article III of the 1968 Constitution
to provide for a Unicameral Legislature affects not only many other
provisions of the Constitution but provides for a change in the form of the
legislative branch of government, which has been in existence in the United
States Congress and in all of the states of the nation, except one, since the
earliest days.It would be difficult to visualize a more revolutionary
change.The concept of a House and a Senate is basic in the American form of
government.It would not only radically change the whole pattern of
government in this state and tear apart the whole fabric of the Constitution,
but would even affect the physical facilities necessary to carry on
government.
 
xxxx
We conclude with the observation that if such proposed amendment were
adopted by the people at the General Election and if the Legislature at its
next session should fail to submit further amendments to revise and clarify
the numerous inconsistencies and conflicts which would result, or if after
submission of appropriate amendments the people should refuse to adopt
them, simple chaos would prevail in the government of this State.The same

41

42
 result would obtain from an amendment, for instance, of Section 1 of Article
V, to provide for only a Supreme Court and Circuit Courts-and there could
be other examples too numerous to detail.These examples point unerringly to
the answer.
 
The purpose of the long and arduous work of the hundreds of men and
women and many sessions of the Legislature in bringing about the
Constitution of 1968 was to eliminate inconsistencies and conflicts and to give
the State a workable, accordant, homogenous and up-to-date document.All
of this could disappear very quickly if we were to hold that it could be
amended in the manner proposed in the initiative petition here. 43[43]
(Emphasis supplied)

The rationale of the Adamsdecision applies with greater force to the present petition.The Lambino
Group's initiative not only seeks a shift from a bicameral to a unicameral legislature, it also seeks to
merge the executive and legislative departments. The initiative in Adamsdid not even touch the
executive department.

In Adams, the Supreme Court of Florida enumerated 18 sections of the Florida Constitution that
would be affected by the shift from a bicameral to a unicameral legislature.In the Lambino Group's
present initiative, no less than 105 provisions of the Constitution would be affected based on the
count of Associate Justice Romeo J. Callejo, Sr. 44[44]There is no doubt that the Lambino Group's
present initiative seeks far more radical changes in the structure of government than the initiative
in Adams.

cralawThe Lambino Group theorizes that the difference between 'amendment and 'revision is
only one of procedure, not of substance.The Lambino Group posits that when a deliberative body
drafts and proposes changes to the Constitution, substantive changes are called 'revisions' because
members of the deliberative body work full-time on the changes.However, the same substantive
changes, when proposed through an initiative, are called 'amendments' because the changes are

43

44
made by ordinary people who do not make an occupation, profession, or vocation out of such
endeavor.

Thus, the Lambino Group makes the following exposition of their theory in their Memorandum:

cralaw99. With this distinction in mind, we note that the constitutional

provisions expressly provide for both amendment and 'revision when it
speaks of legislators and constitutional delegates, while the same provisions
expressly provide only for 'amendment when it speaks of the people.It would
seem that the apparent distinction is based on the actual experience of the
people, that on one hand the common people in general are not expected to
work full-time on the matter of correcting the constitution because that is not
their occupation, profession or vocation; while on the other hand, the
legislators and constitutional convention delegates are expectedto work full-
time on the same matter because that is their occupation, profession or
vocation.Thus, the difference between the words 'revision and 'amendment
pertain only to the process or procedure of coming up with the corrections,
for purposes of interpreting the constitutional provisions.
 
cralaw100. Stated otherwise, the difference between amendment and
'revision cannot reasonably be in the substance or extent of the correction. x
x x x(Underlining in the original; boldfacing supplied)

cralawThe Lambino Group in effect argues that if Congress or a constitutional convention

had drafted the same proposed changes that the Lambino Group wrote in the present initiative, the
changes would constitute a revision of the Constitution.Thus, the Lambino Group concedes that the
proposed changes in the present initiative constitute a revision if Congress or a constitutional
convention had drafted the changes. However, since the Lambino Group as private individuals
drafted the proposed changes, the changes are merely amendments to the Constitution.The
Lambino Group trivializes the serious matter of changing the fundamental law of the land.

 
 

cralawThe express intent of the framers and the plain language of the Constitution contradict
the Lambino Group's theory.Where the intent of the framers and the language of the Constitution
are clear and plainly stated, courts do not deviate from such categorical intent and language. 45
[45]Any theory espousing a construction contrary to such intent and language deserves scant
consideration.More so, if such theory wreaks havoc by creating inconsistencies in the form of
government established in the Constitution.Such a theory, devoid of any jurisprudential mooring
and inviting inconsistencies in the Constitution, only exposes the flimsiness of the Lambino Group's
position. Any theory advocating that a proposed change involving a radical structural change in
government does not constitute a revision justly deserves rejection.

The Lambino Group simply recycles a theory that initiative proponents in American jurisdictions
have attempted to advance without any success. In Lowe v. Keisling,46[46]the Supreme Court of
Oregon rejected this theory, thus:

Mabon argues that Article XVII, section 2, does not apply to changes to the
constitution proposed by initiative.His theory is that Article XVII, section 2
merely provides a procedure by which the legislature can propose a revision
of the constitution, but it does not affect proposed revisions initiated by the
people.
 
Plaintiffs argue that the proposed ballot measure constitutes a wholesale
change to the constitution that cannot be enacted through the initiative
process.They assert that the distinction between amendment and revision is
determined by reviewing the scope and subject matter of the proposed
enactment, and that revisions are not limited to 'a formal overhauling of the
constitution.They argue that this ballot measure proposes far reaching
changes outside the lines of the original instrument, including profound
impacts on existing fundamental rights and radical restructuring of the
government's relationship with a defined group of citizens.Plaintiffs assert
that, because the proposed ballot measure 'will refashion the most basic
principles of Oregon constitutional law, the trial court correctly held that it

45

46
 violated Article XVII, section 2, and cannot appear on the ballot without the
prior approval of the legislature.
 
We first address Mabon's argument that Article XVII, section 2(1), does not
prohibit revisions instituted by initiative.In Holmes v. Appling, x x x, the
Supreme Court concluded that a revision of the constitution may not be
accomplished by initiative, because of the provisions of Article XVII, section
2.After reviewing Article XVII, section1, relating to proposed amendments,
the court said:
 
From the foregoing it appears that Article IV, Section 1, authorizes
the use of the initiative as a means of amending the Oregon
Constitution, but it contains no similar sanction for its use as a
means of revising the constitution. x x x x
 
It then reviewed Article XVII, section 2, relating to revisions, and said: 'It is
the only section of the constitution which provides the means for
constitutional revision and it excludes the idea that an individual, through
the initiative, may place such a measure before the electorate.x x x x
 
Accordingly, we reject Mabon's argument that Article XVII, section 2, does
not apply to constitutional revisions proposed by initiative.(Emphasis
supplied)

Similarly, this Court must reject the Lambino Group's theory which negates the express intent of
the framers and the plain language of the Constitution.

We can visualize amendments and revisions as a spectrum, at one end green for amendments and at
the other end red for revisions.Towards the middle of the spectrum, colors fuse and difficulties
arise in determining whether there is an amendment or revision.The present initiative is
indisputably located at the far end of the red spectrum where revision begins.The present initiative
seeks a radical overhaul of the existing separation of powers among the three co-equal departments
of government, requiring far-reaching amendments in several sections and articles of the
Constitution.

 
 cralawWhere the proposed change applies only to a specific provision of the Constitution
without affecting any other section or article, the change may generally be considered an
amendment and not a revision.For example, a change reducing the voting age from 18 years to 15
years47[47] is an amendment and not a revision.Similarly, a change reducing Filipino ownership of
mass media companies from 100 percent to 60 percent is an amendment and not a revision. 48
[48]Also, a change requiring a college degree as an additional qualification for election to the
Presidency is an amendment and not a revision.49[49]

The changes in these examples do not entail any modification of sections or articles of the
Constitution other than the specific provision being amended.These changes do not also affect the
structure of government or the system of checks-and-balances among or within the three branches.
These three examples are located at the far green end of the spectrum, opposite the far red end
where the revision sought by the present petition is located.

cralawHowever, there can be no fixed rule on whether a change is an amendment or a

revision.A change in a single word of one sentence of the Constitution may be a revision and not an
amendment.For example, the substitution of the word republican with 'monarchic or 'theocratic in
Section 1, Article II50[50] of the Constitution radically overhauls the entire structure of
government and the fundamental ideological basis of the Constitution.Thus, each specific change
will have to be examined case-by-case, depending on how it affects other provisions, as well as how
it affects the structure of government, the carefully crafted system of checks-and-balances, and the
underlying ideological basis of the existing Constitution.

Since a revision of a constitution affects basic principles, or several provisions of a constitution, a

deliberative body with recorded proceedings is best suited to undertake a revision.A revision
requires harmonizing not only several provisions, but also the altered principles with those that
remain unaltered.Thus, constitutions normally authorize deliberative bodies like constituent

47

48

49

50
assemblies or constitutional conventions to undertake revisions.On the other hand, constitutions
allow people's initiatives, which do not have fixed and identifiable deliberative bodies or recorded
proceedings, to undertake only amendments and not revisions.

In the present initiative, the Lambino Group's proposed Section 2 of the Transitory Provisions
states:

Section 2. Upon the expiration of the term of the incumbent President and
Vice President, with the exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article
VI of the 1987 Constitution which shall hereby be amended and Sections 18
and 24 which shall be deleted, all other Sections of Article VI are hereby
retained and renumbered sequentially as Section 2, ad seriatim up to 26,
unless they are inconsistent with the Parliamentary system of government, in
which case, they shall be amended to conform with a unicameral
parliamentary form of government; x x x x (Emphasis supplied)
cralawThe basic rule in statutory construction is that if a later law is irreconcilably
inconsistent with a prior law, the later law prevails.This rule also applies to construction of
constitutions.However, the Lambino Group's draft of Section 2 of the Transitory Provisions turns
on its head this rule of construction by stating that in case of such irreconcilable inconsistency, the
earlier provision 'shall be amended to conform with a unicameral parliamentary form of
government. The effect is to freeze the two irreconcilable provisions until the earlier one 'shall be
amended, which requires a future separate constitutional amendment.

 
cralawRealizing the absurdity of the need for such an amendment, petitioner Atty. Lambino
readily conceded during the oral arguments that the requirement of a future amendment is a
surplusage.In short, Atty. Lambino wants to reinstate the rule of statutory construction so that the
later provision automatically prevails in case of irreconcilable inconsistency.However, it is not as
simple as that.

The irreconcilable inconsistency envisioned in the proposed Section 2 of the Transitory Provisions
is not between a provision in Article VI of the 1987 Constitution and a provision in the proposed
changes. The inconsistency is between a provision in Article VI of the 1987 Constitution and the
'Parliamentary system of government, and the inconsistency shall be resolved in favor of a
'unicameral parliamentary form of government.

Now, what 'unicameral parliamentary form of government do the Lambino Group's proposed
changes refer to ― the Bangladeshi, Singaporean, Israeli, or New Zealand models, which are
among the few countries with unicameral parliaments?The proposed changes could not possibly
refer to the traditional and well-known parliamentary forms of government ―the British, French,
Spanish, German, Italian, Canadian, Australian, or Malaysian models, which have all bicameral
parliaments.Did the people who signed the signature sheets realize that they were adopting the
Bangladeshi, Singaporean, Israeli, or New Zealand parliamentary form of government?

This drives home the point that the people's initiative is not meant for revisions of the Constitution
but only for amendments.A shift from the present Bicameral-Presidential to a Unicameral-
Parliamentary system requires harmonizing several provisions in many articles of the
Constitution.Revision of the Constitution through a people's initiative will only result in gross
absurdities in the Constitution.

In sum, there is no doubt whatsoever that the Lambino Group's initiative is a revision and not an
amendment.Thus, the present initiative is void and unconstitutional because it violates Section 2,
Article XVII of the Constitution limiting the scope of a people's initiative to '[A]mendments to this
Constitution.

3.        A Revisit of Santiago v. COMELEC is Not Necessary

The present petition warrants dismissal for failure to comply with the basic requirements of Section
2, Article XVII of the Constitution on the conduct and scope of a people's initiative to amend the
Constitution.There is no need to revisit this Court's ruling in Santiagodeclaring RA 6735
'incomplete, inadequate or wanting in essential terms and conditions' to cover the system of
initiative to amend the Constitution. An affirmation or reversal of Santiagowill not change the
outcome of the present petition.Thus, this Court must decline to revisit Santiagowhich effectively
ruled that RA 6735 does not comply with the requirements of the Constitution to implement the
initiative clause on amendments to the Constitution.

This Court must avoid revisiting a ruling involving the constitutionality of a statute if the case
before the Court can be resolved on some other grounds.Such avoidance is a logical consequence of
the well-settled doctrine that courts will not pass upon the constitutionality of a statute if the case
can be resolved on some other grounds.51[51]chanroblesvirtuallawlibrary

cralawNevertheless, even assuming that RA 6735 is valid to implement the constitutional

provision on initiatives to amend the Constitution, this will not change the result here because the
present petition violates Section 2, Article XVII of the Constitution.To be a valid initiative, the
present initiative must first comply with Section 2, Article XVII of the Constitution even before
complying with RA 6735.

Even then, the present initiative violates Section 5(b) of RA 6735 which requires that the 'petition
for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total
number of registered voters as signatories.Section 5(b) of RA 6735 requires that the people must
sign the 'petition x x x as signatories.

The 6.3 million signatories did not sign the petition of 25 August 2006 or the amended petition of 30
August 2006 filed with the COMELEC. Only Atty. Lambino, Atty. Demosthenes B. Donato, and
Atty. Alberto C. Agra signed the petition and amended petition as counsels for 'Raul L. Lambino
and Erico B. Aumentado, Petitioners.In the COMELEC, the Lambino Group, claiming to act

51
'together with the 6.3 million signatories,merely attached the signature sheets to the petition and
amended petition.Thus, the petition and amended petition filed with the COMELEC did not even
comply with the basic requirement of RA 6735 that the Lambino Group claims as valid.

cralawThe Lambino Group's logrolling initiative also violates Section 10(a) of RA 6735
stating, 'No petition embracing more than one (1) subject shall be submitted to the electorate; x x
x.The proposed Section 4(4) of the Transitory Provisions, mandating the interim Parliament to
propose further amendments or revisions to the Constitution, is a subject matter totally unrelated
to the shift in the form of government.Since the present initiative embraces more than one subject
matter, RA 6735 prohibits submission of the initiative petition to the electorate.Thus, even if RA
6735 is valid, the Lambino Group's initiative will still fail.

4.        The COMELEC Did Not Commit Grave Abuse of Discretion in Dismissing the Lambino
Group's Initiative

In dismissing the Lambino Group's initiative petition, the COMELEC en banc merely followed this
Court's ruling in Santiagoand People's Initiative for Reform, Modernization and Action (PIRMA) v.
COMELEC.52[52]For following this Court's ruling, no grave abuse of discretion is attributable to
the COMELEC.On this ground alone, the present petition warrants outright dismissal.Thus, this
Court should reiterate its unanimous ruling in PIRMA:

The Court ruled, first, by a unanimousvote, that no grave abuse of

discretion could be attributed to the public respondent COMELEC in
dismissing the petition filed by PIRMA therein, it appearing that itonly
complied with the dispositions in the Decisions of this Court in G.R. No.
127325, promulgated on March 19, 1997, and its Resolution of June 10, 1997.

52
  

5.        Conclusion

The Constitution, as the fundamental law of the land, deserves the utmost respect and obedience of
all the citizens of this nation.No one can trivialize the Constitution by cavalierly amending or
revising it in blatant violation of the clearly specified modes of amendment and revision laid down
in the Constitution itself.

To allow such change in the fundamental law is to set adrift the Constitution in unchartered waters,
to be tossed and turned by every dominant political group of the day.If this Court allows today a
cavalier change in the Constitution outside the constitutionally prescribed modes, tomorrow the
new dominant political group that comes will demand its own set of changes in the same cavalier
and unconstitutional fashion.A revolving-door constitution does not augur well for the rule of law
in this country.

An overwhelming majority − 16,622,111 voters comprising 76.3 percent of the total votes
cast53[53]−approved our Constitution in a national plebiscite held on 11 February 1987.That
approval is the unmistakable voice of the people, the full expression of the people's sovereign will .
That approval included the prescribed modes for amending or revising the Constitution.

53
No amount of signatures, not even the 6,327,952 million signatures gathered by the Lambino
Group, can change our Constitution contrary to the specific modes that the people, in their
sovereign capacity, prescribed when they ratified the Constitution.The alternative is an extra-
constitutional change, which means subverting the people's sovereign will and discarding the
Constitution.This is one act the Court cannot and should never do.As the ultimate guardian of the
Constitution, this Court is sworn to perform its solemn duty to defend and protect the Constitution,
which embodies the real sovereign will of the people.

Incantations of 'people's voice,people's sovereign will, or 'let the people decide cannot
override the specific modes of changing the Constitution as prescribed in the Constitution
itself.Otherwise, the Constitution ― the people's fundamental covenant that provides enduring
stability to our society ― becomes easily susceptible to manipulative changes by political groups
gathering signatures through false promises.Then, the Constitution ceases to be the bedrock of the
nation's stability.

The Lambino Group claims that their initiative is the 'people's voice.However, the Lambino Group
unabashedly states in ULAP Resolution No. 2006-02, in the verification of their petition with the
COMELEC, that 'ULAP maintains its unqualified support to the agenda of Her Excellency
President Gloria Macapagal-Arroyo for constitutional reforms.The Lambino Group thus admits
that their 'peoples' initiative is an 'unqualified support to the agenda of the incumbent President to
change the Constitution.This forewarns the Court to be wary of incantations of 'people's voice or
'sovereign will in the present initiative.

This Court cannot betray its primordial duty to defend and protect the Constitution.The
Constitution, which embodies the people's sovereign will, is the bible of this Court.This Court exists
to defend and protect the Constitution.To allow this constitutionally infirm initiative, propelled by
deceptively gathered signatures, to alter basic principles in the Constitution is to allow a
desecration of the Constitution.To allow such alteration and desecration is to lose this Court's
raison d'etre.
 

WHEREFORE, we DISMISS the petition in G.R. No. 174153.

SO ORDERED.

G.R. No. L-32432 September 11, 1970

MANUEL B. IMBONG, Petitioner, vs. JAIME FERRER, as Chairman of the Comelec,

LINO M. PATAJO and CESAR MILAFLOR, as members thereof, Respondents.

MAKASIAR, J.:

These two separate but related petitions for declaratory relief were filed pursuant to Sec. 19 of
R.A. No. 6132 by petitioners Manuel B. Imbong and Raul M. Gonzales, both members of the
Bar, taxpayers and interested in running as candidates for delegates to the Constitutional
Convention. Both impugn the constitutionality of R.A. No. 6132, claiming during the oral
argument that it prejudices their rights as such candidates. After the Solicitor General had filed
answers in behalf the respondents, hearings were held at which the petitioners and the amici
curiae, namely Senator Lorenzo Tañada, Senator Arturo Tolentino, Senator Jovito Salonga, and
Senator Emmanuel Pelaez argued orally. chanroblesvirtualawlibrary chanrobles virtual law library

It will be recalled that on March 16, 1967, Congress, acting as a Constituent Assembly pursuant
to Art. XV of the Constitution, passed Resolution No. 2 which among others called for a
Constitutional Convention to propose constitutional amendments to be composed of two
delegates from each representative district who shall have the same qualifications as those of
Congressmen, to be elected on the second Tuesday of November, 1970 in accordance with the
Revised Election Code. chanroblesvirtualawlibrary chanrobles virtual law library

After the adoption of said Res. No. 2 in 1967 but before the November elections of that year,
Congress, acting as a legislative body, enacted Republic Act No. 4914 implementing the
aforesaid Resolution No. 2 and practically restating in toto the provisions of said Resolution No.
2. chanroblesvirtualawlibrary chanrobles virtual law library

On June 17, 1969, Congress, also acting as a Constituent Assembly, passed Resolution No. 4
amending the aforesaid Resolution No. 2 of March 16, 1967 by providing that the convention
"shall be composed of 320 delegates apportioned among the existing representative districts
according to the number of their respective inhabitants: Provided, that a representative district
shall be entitled to at least two delegates, who shall have the same qualifications as those
required of members of the House of Representatives," 1 "and that any other details relating to the
specific apportionment of delegates, election of delegates to, and the holding of, the
Constitutional Convention shall be embodied in an implementing legislation: Provided, that it
shall not be inconsistent with the provisions of this Resolution." 2 chanrobles virtual law library
On August 24, 1970, Congress, acting as a legislative body, enacted Republic Act No. 6132,
implementing Resolutions Nos. 2 and 4, and expressly repealing R.A. No.
4914. 3chanrobles virtual law library

Petitioner Raul M. Gonzales assails the validity of the entire law as well as the particular
provisions embodied in Sections 2, 4, 5, and par. 1 of 8(a). Petitioner Manuel B. Imbong
impugns the constitutionality of only par. I of Sec. 8(a) of said R.A. No. 6132 practically on the
same grounds advanced by petitioner Gonzales.

The validity of Sec. 4 of R.A. No. 6132, which considers, all public officers and employees,
whether elective or appointive, including members of the Armed Forces of the Philippines, as
well as officers and employees of corporations or enterprises of the government, as resigned
from the date of the filing of their certificates of candidacy, was recently sustained by this Court,
on the grounds, inter alia, that the same is merely an application of and in consonance with the
prohibition in Sec. 2 of Art. XII of the Constitution and that it does not constitute a denial of due
process or of the equal protection of the law. Likewise, the constitutionality of paragraph 2 of
Sec. 8(a) of R.A. No. 6132 was upheld. 4

II

Without first considering the validity of its specific provisions, we sustain the constitutionality of
the enactment of R.A. No. 6132 by Congress acting as a legislative body in the exercise of its
broad law-making authority, and not as a Constituent Assembly, because -

1. Congress, when acting as a Constituent Assembly pursuant to Art. XV of the Constitution, has
full and plenary authority to propose Constitutional amendments or to call a convention for the
purpose, by a three-fourths vote of each House in joint session assembled but voting separately.
Resolutions Nos. 2 and 4 calling for a constitutional convention were passed by the required
three-fourths vote. chanroblesvirtualawlibrary chanrobles virtual law library

2. The grant to Congress as a Constituent Assembly of such plenary authority to call a

constitutional convention includes, by virtue of the doctrine of necessary implication, all other
powers essential to the effective exercise of the principal power granted, such as the power to fix
the qualifications, number, apportionment, and compensation of the delegates as well as
appropriation of funds to meet the expenses for the election of delegates and for the operation of
the Constitutional Convention itself, as well as all other implementing details indispensable to a
fruitful convention. Resolutions Nos. 2 and 4 already embody the above-mentioned details,
except the appropriation of funds. chanroblesvirtualawlibrary chanrobles virtual law library

3. While the authority to call a constitutional convention is vested by the present Constitution
solely and exclusively in Congress acting as a Constituent Assembly, the power to enact the
implementing details, which are now contained in Resolutions Nos. 2 and 4 as well as in R.A.
No. 6132, does not exclusively pertain to Congress acting as a Constituent Assembly. Such
implementing details are matters within the competence of Congress in the exercise of its
comprehensive legislative power, which power encompasses all matters not expressly or by
necessary implication withdrawn or removed by the Constitution from the ambit of legislative
action. And as lone as such statutory details do not clash with any specific provision of the
constitution, they are valid. chanroblesvirtualawlibrary chanrobles virtual law library

4. Consequently, when Congress, acting as a Constituent Assembly, omits to provide for such
implementing details after calling a constitutional convention, Congress, acting as a legislative
body, can enact the necessary implementing legislation to fill in the gaps, which authority is
expressly recognized in Sec. 8 of Res No. 2 as amended by Res. No. 4. chanroblesvirtualawlibrary chanrobles virtual law library

5. The fact that a bill providing for such implementing details may be vetoed by the President is
no argument against conceding such power in Congress as a legislative body nor present any
difficulty; for it is not irremediable as Congress can override the Presidential veto or Congress
can reconvene as a Constituent Assembly and adopt a resolution prescribing the required
implementing details.

III

Petitioner Raul M. Gonzales asserts that Sec. 2 on the apportionment of delegates is not in
accordance with proportional representation and therefore violates the Constitution and the intent
of the law itself, without pinpointing any specific provision of the Constitution with which it
collides.
chanroblesvirtualawlibrary chanrobles virtual law library

Unlike in the apportionment of representative districts, the Constitution does not expressly or
impliedly require such apportionment of delegates to the convention on the basis of population in
each congressional district. Congress, sitting as a Constituent Assembly, may constitutionally
allocate one delegate for, each congressional district or for each province, for reasons of
economy and to avoid having an unwieldy convention. If the framers of the present Constitution
wanted the apportionment of delegates to the convention to be based on the number of
inhabitants in each representative district, they would have done so in so many words as they did
in relation to the apportionment of the representative districts. 5 chanrobles virtual law library

The apportionment provided for in Sec. 2 of R.A. No. 6132 cannot possibly conflict with its own
intent expressed therein; for it merely obeyed and implemented the intent of Congress acting as a
Constituent Assembly expressed in Sec. 1 of Res. No. 4, which provides that the 320 delegates
should be apportioned among the existing representative districts according to the number of
their respective inhabitants, but fixing a minimum of at least two delegates for a representative
district. The presumption is that the factual predicate, the latest available official population
census, for such apportionment was presented to Congress, which, accordingly employed a
formula for the necessary computation to effect the desired proportional representation. chanroblesvirtualawlibrary chanrobles virtual law library

The records of the proceedings on Senate Bill No. 77 sponsored by Senator Pelaez which is now
R.A. No. 6132, submitted to this Tribunal by the amici curiae, show that it based its
apportionment of the delegates on the 1970 official preliminary population census taken by the
Bureau of Census and Statistics from May 6 to June 30, 1976; and that Congress adopted the
formula to effect a reasonable apportionment of delegates. The Director of the Bureau of Census
and Statistics himself, in a letter to Senator Pelaez dated July 30, 1970, stated that "on the basis
of the preliminary count of the population, we have computed the distribution of delegates to the
Constitutional Convention based on Senate Bill 77 (p. 2 lines 5 to 32 and p. 3 line 12) which is a
fair and an equitable method of distributing the delegates pursuant to the provisions of the joint
Resolution of both Houses No. 2, as amended. Upon your request at the session of the Senate-
House Conference Committee meeting last night, we are submitting herewith the results of the
computation on the basis of the above-stated method." chanrobles virtual law library

Even if such latest census were a preliminary census, the same could still be a valid basis for
such apportionment. 6 The fact that the lone and small congressional district of Batanes, may be
over-represented, because it is allotted two delegates by R.A. No. 6132 despite the fact that it has
a population very much less than several other congressional districts, each of which is also
allotted only two delegates, and therefore under-represented, vis-a-vis Batanes alone, does not
vitiate the apportionment as not effecting proportional representation. Absolute proportional
apportionment is not required and is not possible when based on the number of inhabitants, for
the population census cannot be accurate nor complete, dependent as it is on the diligence of the
census takers, aggravated by the constant movement of population, as well as daily death and
birth. It is enough that the basis employed is reasonable and the resulting apportionment is
substantially proportional. Resolution No. 4 fixed a minimum of two delegates for a
congressional district.
chanroblesvirtualawlibrary chanrobles virtual law library

While there may be other formulas for a reasonable apportionment considering the evidence
submitted to Congress by the Bureau of Census and Statistics, we are not prepared to rule that
the computation formula adopted by, Congress for proportional representation as, directed in
Res. No. 4 is unreasonable and that the apportionment provided in R.A. No. 6132 does not
constitute a substantially proportional representation. chanroblesvirtualawlibrary chanrobles virtual law library

In the Macias case, relied on by petitioner Gonzales, the apportionment law, which was nullified
as unconstitutional, granted more representatives to a province with less population than the
provinces with more inhabitants. Such is not the case here, where under Sec. 2 of R.A. No. 6132
Batanes is allotted only two delegates, which number is equal to the number of delegates
accorded other provinces with more population. The present petitions therefore do not present
facts which fit the mould of the doctrine in the case of Macias et al. vs. Comelec, supra. chanroblesvirtualawlibrary chanrobles virtual law library

The impossibility of absolute proportional representation is recognized by the Constitution itself

when it directs that the apportionment of congressional districts among the various provinces
shall be "as nearly as may be according to their respective inhabitants, but each province shall
have at least one member" (Sec. 5, Art. VI, Phil. Const., emphasis supplied). The employment of
the phrase "as nearly as may be according to their respective inhabitants" emphasizes the fact
that the human mind can only approximate a reasonable apportionment but cannot effect an
absolutely proportional representation with mathematical precision or exactitude.

IV

Sec. 5 of R.A. 6132 is attacked on the ground that it is an undue deprivation of liberty without
due process of law and denies the equal protection of the laws. Said Sec. 5 disqualifies any
elected delegate from running "for any public office in any election" or from assuming "any
appointive office or position in any branch of the government government until after the final
adjournment of the Constitutional Convention." chanrobles virtual law library

That the citizen does not have any inherent nor natural right to a public office, is axiomatic under
our constitutional system. The State through its Constitution or legislative body, can create an
office and define the qualifications and disqualifications therefor as well as impose inhibitions on
a public officer. Consequently, only those with qualifications and who do not fall under any
constitutional or statutory inhibition can be validly elected or appointed to a public office. The
obvious reason for the questioned inhibition, is to immunize the delegates from the perverting
influence of self-interest, party interest or vested interest and to insure that he dedicates all his
time to performing solely in the interest of the nation his high and well nigh sacred function of
formulating the supreme law of the land, which may endure for generations and which cannot
easily be changed like an ordinary statute. With the disqualification embodied in Sec. 5, the
delegate will not utilize his position as a bargaining leverage for concessions in the form of an
elective or appointive office as long as the convention has not finally adjourned. The appointing
authority may, by his appointing power, entice votes for his own proposals. Not love for self, but
love for country must always motivate his actuations as delegate; otherwise the several
provisions of the new Constitution may only satisfy individual or special interests, subversive of
the welfare of the general citizenry. It should be stressed that the disqualification is not
permanent but only temporary only to continue until the final adjournment of the convention
which may not extend beyond one year. The convention that framed the present Constitution
finished its task in approximately seven months - from July 30, 1934 to February 8, 1935. chanroblesvirtualawlibrary chanrobles virtual law library

As admitted by petitioner Gonzales, this inhibition finds analogy in the constitutional provision
prohibiting a member of Congress, during the time for which he was elected, from being
appointed to any civil office which may have been created or the emolument whereof shall have
been increased while he was a member of the Congress. (Sec. 16, Art. VI, Phil. Constitution.) chanrobles virtual law library

As observed by the Solicitor General in his Answer, the overriding objective of the challenged
disqualification, temporary in nature, is to compel the elected delegates to serve in full their term
as such and to devote all their time to the convention, pursuant to their representation and
commitment to the people; otherwise, his seat in the convention will be vacant and his
constituents will be deprived of a voice in the convention. The inhibition is likewise "designed to
prevent popular political figures from controlling elections or positions. Also it is a brake on the
appointing power, to curtail the latter's desire to 'raid' the convention of "talents" or attempt to
control the convention." (p. 10, Answer in L-32443.) chanrobles virtual law library

Thus the challenged disqualification prescribed in Sec. 5 of R.A. No. 6132 is a valid limitation
on the right to public office pursuant to state police power as it is reasonable and not arbitrary.
virtual law library
chanroblesvirtualawlibrary chanrobles

The discrimination under Sec. 5 against delegates to the Constitutional Convention is likewise
constitutional; for it is based on a substantial distinction which makes for real differences, is
germane to the purposes of the law, and applies to all members of the same class. 7 The function
of a delegate is more far-reaching and its effect more enduring than that of any ordinary
legislator or any other public officer. A delegate shapes the fundamental law of the land which
delineates the essential nature of the government, its basic organization and powers, defines the
liberties of the people, and controls all other laws. Unlike ordinary statutes, constitutional
amendments cannot be changed in one or two years. No other public officer possesses such a
power, not even the members of Congress unless they themselves, propose constitutional
amendments when acting as a Constituent Assembly pursuant to Art. XV of the Constitution.
The classification, therefore, is neither whimsical nor repugnant to the sense of justice of the
community. chanroblesvirtualawlibrary chanrobles virtual law library

As heretofore intimated, the inhibition is relevant to the object of the law, which is to insure that
the proposed amendments are meaningful to the masses of our people and not designed for the
enhancement of selfishness, greed, corruption, or injustice. chanroblesvirtualawlibrary chanrobles virtual law library

Lastly, the disqualification applies to all the delegates to the convention who will be elected on
the second Tuesday of November, 1970.

Paragraph 1, Sec. 8(a) of R.A. No. 6132 is impugned by both petitioners as violative of the
constitutional guarantees of due process, equal protection of the laws, freedom of expressions,
freedom of assembly and freedom of association. chanroblesvirtualawlibrary chanrobles virtual law library

This Court ruled last year that the guarantees of due process, equal protection of the laws,
peaceful assembly, free expression, and the right of association are neither absolute nor
illimitable rights; they are always subject to the pervasive and dormant police power of the State
and may be lawfully abridged to serve appropriate and important public interests. 8 chanrobles virtual law library

In said Gonzalez vs. Comelec case the Court applied the clear and present danger test to
determine whether a statute which trenches upon the aforesaid Constitutional guarantees, is a
legitimate exercise of police power. 9 chanrobles virtual law library

Paragraph 1 of Sec. 8(a), R.A. No. 6132 prohibits:

1. any candidate for delegate to the convention

(a) from representing, or chanrobles virtual law library

(b) allowing himself to be represented as being a candidate of any political party or any other
organization; and

2. any political party, political group, political committee, civic, religious, professional or other
organizations or organized group of whatever nature from

(a) intervening in the nomination of any such candidate or in the filing of his certificate, or chanrobles virtual law library

(b) from giving aid or support directly or indirectly, material or otherwise, favorable to or against
his campaign for election.
The ban against all political parties or organized groups of whatever nature contained in par. 1 of
Sec. 8(a), is confined to party or organization support or assistance, whether material, moral,
emotional or otherwise. The very Sec. 8(a) in its provisos permits the candidate to utilize in his
campaign the help of the members of his family within the fourth civil degree of consanguinity
or affinity, and a campaign staff composed of not more than one for every ten precincts in his
district. It allows the full exercise of his freedom of expression and his right to peaceful
assembly, because he cannot be denied any permit to hold a public meeting on the pretext that
the provision of said section may or will be violated. The right of a member of any political party
or association to support him or oppose his opponent is preserved as long as such member acts
individually. The very party or organization to which he may belong or which may be in
sympathy with his cause or program of reforms, is guaranteed the right to disseminate
information about, or to arouse public interest in, or to advocate for constitutional reforms,
programs, policies or constitutional proposals for amendments. chanroblesvirtualawlibrary chanrobles virtual law library

It is therefore patent that the restriction contained in Sec. 8(a) is so narrow that the basic
constitutional rights themselves remain substantially intact and inviolate. And it is therefore a
valid infringement of the aforesaid constitutional guarantees invoked by petitioners. chanroblesvirtualawlibrary chanrobles virtual law library

In the aforesaid case of Gonzales vs. Comelec, supra, this Court unanimously sustained the
validity of the limitation on the period for nomination of candidates in Sec. 50-A of R.A. No.
4880, thus:

The prohibition of too early nomination of candidates presents a question that is not too
formidable in character. According to the act: "It shall be unlawful for any political party,
political committee, or political group to nominate candidates for any elective public office voted
for at large earlier than one hundred and fifty days immediately preceding an election, and for
any other elective public office earlier than ninety days immediately preceding an election. chanroblesvirtualawlibrary chanrobles virtual law library

The right of association is affected. Political parties have less freedom as to the time during
which they may nominate candidates; the curtailment is not such, however, as to render
meaningless such a basic right. Their scope of legitimate activities, save this one, is not unduly
narrowed. Neither is there infringement of their freedom to assemble. They can do so, but not for
such a purpose. We sustain its validity. We do so unanimously. 10 chanrobles virtual law library

In said Gonzales vs. Comelec case, this Court likewise held that the period for the conduct of an
election campaign or partisan political activity may be limited without offending the
aforementioned constitutional guarantees as the same is designed also to prevent a "clear and
present danger of a substantive evil, the debasement of the electoral process." 11 chanrobles virtual law library

Even if the partisan activity consists of (a) forming organizations, associations, clubs,
committees or other group of persons for the purpose of soliciting votes and/or undertaking any
campaign or propaganda for or against a party or candidate; (b) holding political conventions,
caucuses, conferences, meetings, rallies, parades or other similar assemblies for the purpose of
soliciting votes and/or undertaking any campaign or propaganda for or against any candidate or
party; and (c) giving, soliciting, or receiving contributions for election campaign either directly
or indirectly, (Sec. 50-B, pars. (a), (b), and (c), R.A. 4880), the abridgment was still affirmed as
constitutional by six members of this Court, which could not "ignore ... the legislative declaration
that its enactment was in response to a serious substantive evil affecting the electoral process, not
merely in danger of happening, but actually in existence, and likely to continue unless curbed or
remedied. To assert otherwise would be to close one's eyes to the reality of the situation." 12; chanrobles virtual law library

Likewise, because four members dissented, this Court in said case of Gonzales vs. Comelec,
supra, failed to muster the required eight votes to declare as unconstitutional the limitation on the
period for (a) making speeches, announcements or commentaries or holding interviews for or
against the election of any party or candidate for public office; (b) publishing or distributing
campaign literature or materials; and (e) directly or indirectly soliciting votes and/or undertaking
any campaign or propaganda for or against any candidate or party specified in Sec. 50-B, pars.
(c), (d) & (e) of R.A. 4880. 13 chanrobles virtual law library

The debasement of the electoral process as a substantive evil exists today and is one of the major
compelling interests that moved Congress into prescribing the total ban contained in par. 1 of
Sec. 8(a) of R.A. No. 6132, to justify such ban. In the said Gonzales vs. Comelec case, this Court
gave "due recognition to the legislative concern to cleanse, and if possible, render spotless, the
electoral process," 14 impressed as it was by the explanation made by the author of R.A. No.
4880, Sen. Lorenzo Tañada, who appeared as amicus curiae, "that such provisions were deemed
by the legislative body to be part and parcel of the necessary and appropriate response not merely
to a clear and present danger but to the actual existence of a grave and substantive evil of
excessive partisanship, dishonesty and corruption as well as violence that of late has marred
election campaigns and partisan political activities in this country. He did invite our attention
likewise to the well-settled doctrine that in the choice of remedies for an admitted malady
requiring governmental action, on the legislature primarily rests the responsibility. Nor should
the cure prescribed by it, unless clearly repugnant to fundamental rights, be ignored or
disregarded." 15
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But aside from the clear and imminent danger of the debasement of the electoral process, as
conceded by Senator Pelaez, the basic motivation, according to Senate Majority Floor Leader
Senator Arturo Tolentino, the sponsor of the Puyat-Tolentino amendment embodied in par. 1 of
Sec. 8(a) of R.A. No. 6132, is to assure the candidates equal protection of the laws by according
them equality of chances. 16 The primary purpose of the prohibition then is also to avert the clear
and present danger of another substantive evil, the denial of the equal protection of the laws. The
candidates must depend on their individual merits and not on the support of political parties or
organizations. Senator Tolentino and Senator Salonga emphasized that under this provision, the
poor candidate has an even chance as against the rich candidate. We are not prepared to disagree
with them, because such a conclusion, predicated as it is on empirical logic, finds support in our
recent political history and experience. Both Senators stressed that the independent candidate
who wins in the election against a candidate of the major political parties, is a rare phenomenon
in this country and the victory of an independent candidate mainly rests on his ability to match
the resources, financial and otherwise, of the political parties or organizations supporting his
opponent. This position is further strengthened by the principle that the guarantee of social
justice under Sec. V, Art. II of the Constitution, includes the guarantee of equal opportunity,
equality of political rights, and equality before the law enunciated by Mr. Justice Tuazon in the
case Guido vs. Rural Progress Administration. 17 chanrobles virtual law library
While it may be true that a party's support of a candidate is not wrong per se it is equally true that
Congress in the exercise of its broad law-making authority can declare certain acts as mala
prohibita when justified by the exigencies of the times. One such act is the party or organization
support proscribed in Sec. 8(a),which ban is a valid limitation on the freedom of association as
well as expression, for the reasons aforestated. chanroblesvirtualawlibrary chanrobles virtual law library

Senator Tolentino emphasized that "equality of chances may be better attained by banning all
organization support." 18 chanrobles virtual law library

The questioned par. 1 of Sec. 8 (a) likewise can easily pass the balancing-of-interest test. 19 chanrobles virtual law library

In the apt words of the Solicitor General:

It is to be noted that right now the nation is on the threshold of rewriting its Constitution in a
hopeful endeavor to find a solution to the grave economic, social and political problems
besetting the country. Instead of directly proposing the amendments Congress has chosen to call
a Constitutional Convention which shall have the task of fashioning a document that shall
embody the aspirations and ideals of the people. Because what is to be amended is the
fundamental law of the land, it is indispensable that the Constitutional Convention be composed
of delegates truly representative of the people's will. Public welfare demands that the delegates
should speak for the entire nation, and their voices be not those of a particular segment of the
citizenry, or of a particular class or group of people, be they religious, political, civic or
professional in character. Senator Pelaez, Chairman of the Senate Committee on Codes and
Constitutional Amendments, eloquently stated that "the function of a constitution is not to
represent anyone in interest or set of interests, not to favor one group at the expense or
disadvantage of the candidates - but to encompass all the interests that exist within our society
and to blend them into one harmonious and balanced whole. For the constitutional system means,
not the predominance of interests, but the harmonious balancing thereof." chanrobles virtual law library

So that the purpose for calling the Constitutional Convention will not be deflated or frustrated, it
is necessary that the delegatee thereto be independent, beholden to no one but to God, country
and conscience. chanroblesvirtualawlibrary chanrobles virtual law library

xxx xxx xxx chanrobles virtual law library

The evil therefore, which the law seeks to prevent lies in the election of delegates who, because
they have been chosen with the aid and resources of organizations, cannot be expected to be
sufficiently representative of the people. Such delegates could very well be the spokesmen of
narrow political, religious or economic interest and not of the great majority of the people. 20 chanrobles virtual law library

We likewise concur with the Solicitor General that the equal protection of the laws is not unduly
subverted in par. I of Sec. 8(a); because it does not create any hostile discrimination against any
party or group nor does it confer undue favor or privilege on an individual as heretofore stated.
The discrimination applies to all organizations, whether political parties or social, civic,
religious, or professional associations. The ban is germane to the objectives of the law, which are
to avert the debasement of the electoral process, and to attain real equality of chances among
individual candidates and thereby make real the guarantee of equal protection of the laws. chanroblesvirtualawlibrary chanrobles virtual law library

The political parties and the other organized groups have built-in advantages because of their
machinery and other facilities, which, the individual candidate who is without any organization
support, does not have. The fact that the other civic of religious organizations cannot have a
campaign machinery as efficient as that of a political party, does not vary the situation; because
it still has that much built-in advantage as against the individual candidate without similar
support. Moreover, these civic religious and professional organization may band together to
support common candidates, who advocates the reforms that these organizations champion and
believe are imperative. This is admitted by petitioner Gonzales thru the letter of Senator Ganzon
dated August 17, 1970 attached to his petition as Annex "D", wherein the Senator stated that his
own "Timawa" group had agreed with the Liberal Party in Iloilo to support petitioner Gonzales
and two others as their candidates for the convention, which organized support is nullified by the
questioned ban, Senator Ganzon stressed that "without the group moving and working in joint
collective effort" they cannot "exercise effective control and supervision over our
leaders - the Women's League, the area commanders, etc."; but with their joining with the LP's
they "could have presented a solid front with very bright chances of capturing all seats." chanrobles virtual law library

The civic associations other than political parties cannot with reason insist that they should be
exempted from the ban; because then by such exemption they would be free to utilize the
facilities of the campaign machineries which they are denying to the political parties. Whenever
all organization engages in a political activity, as in this campaign for election of delegates to the
Constitutional Convention, to that extent it partakes of the nature of a political organization.
This, despite the fact that the Constitution and by laws of such civic, religious, or professional
associations usually prohibit the association from engaging in partisan political activity or
supporting any candidate for an elective office. Hence, they must likewise respect the ban. chanroblesvirtualawlibrary chanrobles virtual law library

The freedom of association also implies the liberty not to associate or join with others or join any
existing organization. A person may run independently on his own merits without need of
catering to a political party or any other association for support. And he, as much as the
candidate whose candidacy does not evoke sympathy from any political party or organized
group, must be afforded equal chances. As emphasized by Senators Tolentino and Salonga, this
ban is to assure equal chances to a candidate with talent and imbued with patriotism as well as
nobility of purpose, so that the country can utilize their services if elected. chanroblesvirtualawlibrary chanrobles virtual law library

Impressed as We are by the eloquent and masterly exposition of Senator Tañada for the
invalidation of par. 1 of Sec. 8(a) of R.A. No. 6132, demonstrating once again his deep concern
for the preservation of our civil liberties enshrined in the Bill of Rights, We are not persuaded to
entertain the belief that the challenged ban transcends the limits of constitutional invasion of
such cherished immunities. chanroblesvirtualawlibrary chanrobles virtual law library

WHEREFORE, the prayers in both petitions are hereby denied and R.A. No. 6132 including
Secs. 2, 4, 5, and 8(a), paragraph 1, thereof, cannot be declared unconstitutional. Without costs.
[G.R. No. 127325. March 19, 1997.]

MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA, and MARIA ISABEL ONGPIN, Petitioners, v.
COMMISSION ON ELECTIONS, JESUS DELFIN, ALBERTO PEDROSA & CARMEN PEDROSA, in their
capacities as founding members of the People’s Initiative for Reforms, Modernization and Action
(PIRMA), Respondents.

CONSTITUTIONAL LAW; 1987 CONSTITUTION; AMENDMENTS OR REVISIONS; PROVISION ON THE RIGHT

OF THE PEOPLE TO DIRECTLY PROPOSE AMENDMENTS TO THE CONSTITUTION, NOT SELF-EXECUTORY.
— Section 2 of Article XVII of the Constitution is not self-executory. In his book, Joaquin Bernas, a
member of the 1986 Constitutional Commission, stated: Without implementing legislation Section 2
cannot operate. Thus, although this mode of amending the Constitution is a mode of amendment which
bypasses congressional action, in the last analysis it still is dependent on congressional action. Bluntly
stated the right of the people to directly propose amendments to the Constitution through the system
of initiative would remain entombed in the cold niche of the Constitution until Congress provides for its
implementation. Stated otherwise, while the Constitution has recognized or granted that right, the
people cannot exercise it if Congress, for whatever reason, does not provide for its implementation.

DECISION

DAVIDE, JR., J.:

The heart of this controversy brought to us by way of a petition for prohibition under Rule 65 of
the Rules of Court is the right of the people to directly propose amendments to the Constitution
through the system of initiative under Section 2 of Article XVII of the 1987 Constitution.
Undoubtedly, this demands special attention, as this system of initiative was unknown to the
people of this country, except perhaps to a few scholars before the drafting of the 1987
Constitution. The 1986 Constitutional Commission itself, through the original proponent 1 and
the main sponsor 2 of the proposed Article on Amendments or Revision of the Constitution,
characterized this system as "innovative." 3 Indeed it is, for both under the 1935 and 1973
Constitutions, only two methods of proposing amendments to, or revision of, the Constitution
were recognized, viz., (1) by Congress upon a vote of three-fourths of all its members and (2) by
a constitutional convention. 4 For this and the other reasons hereafter discussed, we resolved to
give due course to this petition.

On 6 December 1996, private respondent Atty. Jesus S. Delfin filed with public respondent
Commission on Elections (hereafter, COMELEC) a "Petition to Amend the Constitution, to Lift
Term Limits of Elective Officials, by People’s Initiative" (hereafter, Delfin Petition) 5 wherein
Delfin asked the COMELEC for an order

1. Fixing the time and dates for signature gathering all over the country;

2. Causing the necessary publications of said Order and the attached "Petition for Initiative on
the 1987 Constitution, in newspapers of general and local circulation;

3. Instructing Municipal Election Registrars in all Regions of the Philippines, to assist Petitioners
and volunteers, in establishing signing stations at the time and on the dates designated for the
purpose.

Delfin alleged in his petition that he is a founding member of the Movement for People’s
Initiative, 6 a group of citizens desirous to avail of the system intended to institutionalize people
power; that he and the members of the Movement and other volunteers intend to exercise the
power to directly propose amendments to the Constitution granted under Section 2, Article XVII
of the Constitution; that the exercise of that power shall be conducted in proceedings under the
control and supervision of the COMELEC; that, as required in COMELEC Resolution No. 2300,
signature stations shall be established all over the country, with the assistance of municipal
election registrars, who shall verify the signatures affixed by individual signatories; that before
the Movement and other volunteers can gather signatures, it is necessary that the time and dates
to be designated for the purpose be first fixed in an order to be issued by the COMELEC; and
that to adequately inform the people of the electoral process involved, it is likewise necessary
that the said order, as well as the Petition on which the signatures shall be affixed, be published
in newspapers of general and local circulation, under the control and supervision of the
COMELEC.

The Delfin Petition further alleged that the provisions sought to be amended are Sections 4 and 7
of Article VI, 7 Section 4 of Article VII, 8 and Section 8 of Article X 9 of the Constitution.
Attached to the petition is a copy of a "Petition for Initiative on the 1987 Constitution" 10
embodying the proposed amendments which consist in the deletion from the aforecited sections
of the provisions concerning term limits, and with the following proposition: chanrob1es virtual 1aw library

DO YOU APPROVE OF LIFTING THE TERM LIMITS OF ALL ELECTIVE

GOVERNMENT OFFICIALS, AMENDING FOR THE PURPOSE SECTIONS 4 AND 7 OF
ARTICLE VI, SECTION 4 OF ARTICLE VII, AND SECTION 8 OF ARTICLE X OF THE
1987 PHILIPPINE CONSTITUTION?

According to Delfin, the said Petition for Initiative will first be submitted to the people, and after
it is signed by at least twelve per cent of the total number of registered voters in the country it
will be formally filed with the COMELEC.

Upon the filing of the Delfin Petition, which was forthwith given the number UND 96-037
(INITIATIVE), the COMELEC, through its Chairman, issued an Order 11 (a) directing Delfin
"to cause the publication of the petition, together with the attached Petition for Initiative on the
1987 Constitution (including the proposal, proposed constitutional amendment, and the signature
form), and the notice of hearing in three (3) daily newspapers of general circulation at his own
expense" not later than 9 December 1996; and (b) setting the case for hearing on 12 December
1996 at 10:00 a.m.

At the hearing of the Delfin Petition on 12 December 1996, the following appeared: Delfin and
Atty. Pete Q. Quadra; representatives of the People’s Initiative for Reforms, Modernization and
Action (PIRMA); intervenor-oppositor Senator Raul S. Roco, together with his two other
lawyers and representatives of, or counsel for, the Integrated Bar of the Philippines (IBP),
Demokrasya-Ipagtanggol ang Konstitusyon (DIK), Public Interest Law Center, and Laban ng
Demokratikong Pilipino (LABAN). 12 Senator Roco, on that same day, filed a Motion to
Dismiss the Delfin Petition on the ground that it is not the initiatory petition properly cognizable
by the COMELEC.

After hearing their arguments, the COMELEC directed Delfin and the oppositors to file their
"memoranda and/or oppositions/memoranda" within five days. 13

On 18 December 1996, the petitioners herein — Senator Miriam Defensor Santiago, Alexander
Padilla, and Maria Isabel Ongpin — filed this special civil action for prohibition raising the
following arguments: chanrob1es virtual 1aw library

(1) The constitutional provision on people’s initiative to amend the Constitution can only be
implemented by law to be passed by Congress. No such law has been passed; in fact, Senate Bill
No. 1290 entitled An Act Prescribing and Regulating Constitutional Amendments by People’s
Initiative, which petitioner Senator Santiago filed on 24 November 1995, is still pending before
the Senate Committee on Constitutional Amendments.

(2) It is true that R.A. No. 6735 provides for three systems of initiative, namely, initiative on the
Constitution, on statutes, and on local legislation. However, it failed to provide any subtitle
initiative on the Constitution, unlike in the other modes of initiative, which are specifically
provided for in Subtitle II and Subtitle III. This deliberate omission indicates that the matter of
people’s initiative to amend the Constitution was left to some future law. Former Senator Arturo
Tolentino stressed this deficiency in the law in his privilege speech delivered before the Senate
in 1994: "There is not a single word in that law which can be considered as implementing [the
provision on constitutional initiative]. Such implementing provisions have been obviously left to
a separate law."cralaw virtua1aw library

(3) Republic Act No. 6735 provides for the effectivity of the law after publication in print media.
This indicates that the Act covers only laws and not constitutional amendments because the latter
take effect only upon ratification and not after publication.

(4) COMELEC Resolution No. 2300, adopted on 16 January 1991 to govern "the conduct of
initiative on the Constitution and initiative and referendum on national and local laws, is ultra
vires insofar as initiative on amendments to the Constitution is concerned, since the COMELEC
has no power to provide rules and regulations for the exercise of the right of initiative to amend
the Constitution. Only Congress is authorized by the Constitution to pass the implementing law.

(5) The people’s initiative is limited to amendments to the Constitution, not to revision thereof.
Extending or lifting of term limits constitutes a revision and is, therefore, outside the power of
the people’s initiative.
chanroblesvirtual|awlibrary

(6) Finally, Congress has not yet appropriated funds for people’s initiative; neither the
COMELEC nor any other government department, agency, or office has realigned funds for the
purpose.

To justify their recourse to us via the special civil action for prohibition, the petitioners allege
that in the event the COMELEC grants the Delfin Petition, the people’s initiative spearheaded by
PIRMA would entail expenses to the national treasury for general re-registration of voters
amounting to at least P180 million, not to mention the millions of additional pesos in expenses
which would be incurred in the conduct of the initiative itself. Hence, the transcendental
importance to the public and the nation of the issues raised demands that this petition for
prohibition be settled promptly and definitely, brushing aside technicalities of procedure and
calling for the admission of a taxpayer’s and legislator’s suit. 14 Besides, there is no other plain,
speedy, and adequate remedy in the ordinary course of law.

On 19 December 1996, this Court (a) required the respondents to comment on the petition within
a non-extendible period of ten days from notice; and (b) issued a temporary restraining order,
effective immediately and continuing until further orders, enjoining public respondent
COMELEC from proceeding with the Delfin Petition, and private respondents Alberto and
Carmen Pedrosa from conducting a signature drive for people’s initiative to amend the
Constitution.

On 2 January 1997, private respondents, through Atty. Quadra, filed their Comment 15 on the
petition. They argue therein that: chanrob1es virtual 1aw library

1. IT IS NOT TRUE THAT IT WOULD ENTAIL EXPENSES TO THE NATIONAL

TREASURY FOR GENERAL REGISTRATION OF VOTERS AMOUNTING TO AT LEAST
PESOS: ONE HUNDRED EIGHTY MILLION (P180,000,000.00)" IF THE COMELEC
GRANTS THE PETITION FILED BY RESPONDENT DELFIN BEFORE THE COMELEC."
library
cralaw virtua1aw

2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE NATIONAL GOVERNMENT

IF THE COMELEC GRANTS THE PETITION OF RESPONDENT DELFIN. ALL
EXPENSES IN THE SIGNATURE GATHERING ARE ALL FOR THE ACCOUNT OF
RESPONDENT DELFIN AND HIS VOLUNTEERS PER THEIR PROGRAM OF
ACTIVITIES AND EXPENDITURES SUBMITTED TO THE COMELEC. THE ESTIMATED
COST OF THE DAILY PER DIEM OF THE SUPERVISING SCHOOL TEACHERS IN THE
SIGNATURE GATHERING TO BE DEPOSITED and TO BE PAID BY DELFIN AND HIS
VOLUNTEERS IS P2,571,200.00;

3. THE PENDING PETITION BEFORE THE COMELEC IS ONLY ON THE SIGNATURE

GATHERING WHICH BY LAW COMELEC IS DUTY BOUND "TO SUPERVISE
CLOSELY" PURSUANT TO ITS "INITIATORY JURISDICTION" UPHELD BY THE
HONORABLE COURT IN ITS RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE
OF SUBIC BAY METROPOLITAN AUTHORITY VS . COMELEC, ET . AL. G.R. NO.
125416;

4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS THE ENABLING LAW
IMPLEMENTING THE POWER OF PEOPLE INITIATIVE TO PROPOSE AMENDMENTS
TO THE CONSTITUTION. SENATOR DEFENSOR-SANTIAGO’S SENATE BILL NO. 1290
IS A DUPLICATION OF WHAT ARE ALREADY PROVIDED FOR IN REP. ACT NO. 6735;

5. COMELEC RESOLUTION NO. 2300 PROMULGATED ON JANUARY 16, 1991

PURSUANT TO REP. ACT 6735 WAS UPHELD BY THE HONORABLE COURT IN THE
RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC BAY,
METROPOLITAN AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416 WHERE THE
HONORABLE COURT SAID: "THE COMMISSION ON ELECTIONS CAN DO NO LESS
BY SEASONABLY AND JUDICIOUSLY PROMULGATING GUIDELINES AND RULES
FOR BOTH NATIONAL AND LOCAL USE, IN IMPLEMENTING OF THESE LAWS." cralaw virtua1aw library

6. EVEN SENATOR DEFENSOR-SANTIAGO’S SENATE BILL NO. 1290 CONTAINS A

PROVISION DELEGATING TO THE COMELEC THE POWER TO "PROMULGATE SUCH
RULES AND REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE
PURPOSES OF THIS ACT." (SEC. 12, S.B. NO. 1290, ENCLOSED AS ANNEX E,
PETITION);

7. THE LIFTING OF THE LIMITATION ON THE TERM OF OFFICE OF ELECTIVE

OFFICIALS PROVIDED UNDER THE 1987 CONSTITUTION IS NOT A "REVISION" OF
THE CONSTITUTION. IT IS ONLY AN AMENDMENT. "AMENDMENT ENVISAGES AN
ALTERATION OF ONE OR A FEW SPECIFIC PROVISIONS OF THE CONSTITUTION.
REVISION CONTEMPLATES A RE-EXAMINATION OF THE ENTIRE DOCUMENT TO
DETERMINE HOW AND TO WHAT EXTENT IT SHOULD BE ALTERED." (PP. 412-413,
2ND. ED. 1992, 1097 PHIL. CONSTITUTION, BY JOAQUIN G. BERNAS, SJ.).

Also on 2 January 1997, private respondent Delfin filed in his own behalf a Comment 16 which
starts off with an assertion that the instant petition is a "knee-jerk reaction to a draft ‘Petition for
Initiative on the 1987 Constitution’ . . . which is not formally filed yet." What he filed on 6
December 1996 was an "Initiatory Pleading" or "Initiatory Petition," which was legally necessary
to start the signature campaign to amend the Constitution or to put the movement to gather
signatures under COMELEC power and function. On the substantive allegations of the
petitioners, Delfin maintain as follows: chanrob1es virtual 1aw library

(1) Contrary to the claim of the petitioners, there is a law, R.A. No. 6735, which governs the
conduct of initiative to amend the Constitution. The absence therein of a subtitle for such
initiative is not fatal, since subtitles are not requirements for the validity or sufficiency of laws.

(2) Section 9(b) of R.A. No. 6735 specifically provides that the proposition in an initiative to
amend the Constitution approved by the majority of the votes cast in the plebiscite shall become
effective as of the day of the plebiscite.

(3) The claim that COMELEC Resolution No. 2300 is ultra vires is contradicted by (a) Section 2,
Article IX-C of the Constitution, which grants the COMELEC the power to enforce and
administer all laws and regulations relative to the conduct of an election, plebiscite, initiative,
referendum, and recall; and (b) Section 20 of R.A. 6735, which empowers the COMELEC to
promulgate such rules and regulations as may be necessary to carry out the purposes of the Act.

(4) The proposed initiative does not involve a revision of, but mere amendment to, the
Constitution because it seeks to alter only a few specific provisions of the Constitution, or more
specifically, only those which lay term limits. It does not seek to reexamine or overhaul the
entire document.

As to the public expenditures for registration of voters, Delfin considers petitioners’ estimate of
P180 million as unreliable, for only the COMELEC can give the exact figure. Besides, if there
will be a plebiscite it will be simultaneous with the 1997 Barangay Elections. In any event, fund
requirements for initiative will be a priority government expense because it will be for the
exercise of the sovereign power of the people.

In the Comment 17 for the public respondent COMELEC, filed also on 2 January 1997, the
Office of the Solicitor General contends that:chanrob1es virtual 1aw library

(1) R.A. No. 6735 deals with, inter alia, people’s initiative to amend the Constitution. Its Section
2 on Statement of Policy explicitly affirms, recognizes, and guarantees that power; and its
Section 3, which enumerates the three systems of initiative, includes initiative on the
Constitution and defines the same as the power to propose amendments to the Constitution.
Likewise, its Section 5 repeatedly mentions initiative on the Constitution.

(2) A separate subtitle on initiative on the Constitution is not necessary in R.A. No. 6735
because, being national in scope, that system of initiative is deemed included in the subtitle on
National Initiative and Referendum; and Senator Tolentino simply overlooked pertinent
provisions of the law when he claimed that nothing therein was provided for initiative on the
Constitution.

(3) Senate Bill No. 1290 is neither a competent nor a material proof that R.A. No. 6735 does not
deal with initiative on the Constitution.

(4) Extension of term limits of elected officials constitutes a mere amendment to the
Constitution, not a revision thereof.

(5) COMELEC Resolution No. 2300 was validly issued under Section 20 of R.A. No. 6735 and
under the Omnibus Election Code. The rule-making power of the COMELEC to implement the
provisions of R.A. No. 6735 was in fact upheld by this Court in Subic Bay Metropolitan
Authority v. COMELEC.

On 14 January 1997, this Court (a) confirmed nunc pro tunc the temporary restraining order; (b)
noted the aforementioned Comments and the Motion to Lift Temporary Restraining Order filed
by private respondents through Atty. Quadra, as well as the latter’s Manifestation stating that he
is the counsel for private respondents Alberto and Carmen Pedrosa only and the Comment he
filed was for the Pedrosas; and (c) granted the Motion for Intervention filed on 6 January 1997
by Senator Raul Roco and allowed him to file his Petition in Intervention not later than 20
January 1997; and (d) set the case for hearing on 23 January 1997 at 9:30 a.m.

On 17 January 1997, the Demokrasya-Ipagtanggol ang Konstitusyon (DIK) and the Movement
of Attorneys for Brotherhood Integrity and Nationalism, Inc. (MABINI), filed a Motion for
Intervention. Attached to the motion was their Petition in Intervention, which was later replaced
by an Amended Petition in Intervention wherein they contend that: chanrob1es virtual 1aw library

(1) The Delfin proposal does not involve a mere amendment to, but a revision of, the
Constitution because, in the words of Fr. Joaquin Bernas, SJ., 18 it would involve a change from
a political philosophy that rejects unlimited tenure to one that accepts unlimited tenure; and
although the change might appear to be an isolated one, it can affect other provisions, such as, on
synchronization of elections and on the State policy of guaranteeing equal access to opportunities
for public service and prohibiting political dynasties. 19 A revision cannot be done by initiative
which, by express provision of Section 2 of Article XVII of the Constitution, is limited to
amendments.

(2) The prohibition against reelection of the President and the limits provided for all other
national and local elective officials are based on the philosophy of governance, "to open up the
political arena to as many as there are Filipinos qualified to handle the demands of leadership, to
break the concentration of political and economic powers in the hands of a few, and to promote
effective proper empowerment for participation in policy and decision-making for the common
good" ; hence, to remove the term limits is to negate and nullify the noble vision of the 1987
Constitution.

(3) The Delfin proposal runs counter to the purpose of initiative particularly in a conflict-of-
interest situation. Initiative is intended as a fallback position that may be availed of by the people
only if they are dissatisfied with the performance of their elective officials, but not as a premium
for good performance. 20

(4) R.A. No 6735 is deficient and inadequate in itself to be called the enabling law that
implements the people’s initiative on amendments to the Constitution. It fails to state (a) the
proper parties who may file the petition, (b) the appropriate agency before whom the petition is
to be filed, (c) the contents of the petition, (d) the publication of the same, (e) the ways and
means of gathering the signatures of the voters nationwide and 3% per legislative district, (f) the
proper parties who may oppose or question the veracity of the signatures, (g) the role of the
COMELEC in the verification of the signatures and the sufficiency of the petition, (h) the appeal
from any decision of the COMELEC, (i) the holding of a plebiscite, and (g) the appropriation of
funds for such people’s initiative. Accordingly, there being no enabling law, the COMELEC has
no jurisdiction to hear Delfin’s petition.

(5) The deficiency of R.A. No. 6735 cannot be rectified or remedied by COMELEC Resolution
No. 2300, since the COMELEC is without authority to legislate the procedure for a people’s
initiative under Section 2 of Article XVII of the Constitution. That function exclusively pertains
to Congress. Section 20 of R.A. No. 6735 does not constitute a legal basis for the Resolution, as
the former does not set a sufficient standard for a valid delegation of power.

On 20 January 1997, Senator Raul Roco filed his Petition in Intervention. 21 He avers that R.A.
No. 6735 is the enabling law that implements the people’s right to initiate constitutional
amendments. This law is a consolidation of Senate Bill No. 17 and House Bill No. 21505; he co-
authored the House Bill and even delivered a sponsorship speech thereon. He likewise submits
that the COMELEC was empowered under Section 20 of that law to promulgate COMELEC
Resolution No. 2300. Nevertheless, he contends that the respondent Commission is without
jurisdiction to take cognizance of the Delfin Petition and to order its publication because the said
petition is not the initiatory pleading contemplated under the Constitution, Republic Act No.
6735, and COMELEC Resolution No. 2300. What vests jurisdiction upon the COMELEC in an
initiative on the Constitution is the filing of a petition for initiative which is signed by the
required number of registered voters. He also submits that the proponents of a constitutional
amendment cannot avail of the authority and resources of the COMELEC to assist them in
securing the required number of signatures, as the COMELEC’s role in an initiative on the
Constitution is limited to the determination of the sufficiency of the initiative petition and the
call and supervision of a plebiscite, if warranted. chanroblesvirtuallawlibrary

On 20 January 1997, LABAN filed a Motion for Leave to Intervene.

The following day, the IBP filed a Motion for Intervention to which it attached a Petition in
Intervention raising the following arguments: chanrob1es virtual 1aw library

(1) Congress has failed to enact an enabling law mandated under Section 2, Article XVII of the
1987 Constitution.

(2) COMELEC Resolution No. 2300 cannot substitute for the required implementing law on the
initiative to amend the Constitution.

(3) The Petition for Initiative suffers from a fatal defect in that it does not have the required
number of signatures.

(4) The petition seeks, in effect a revision of the Constitution, which can be proposed only by
Congress or a constitutional convention. 22

On 21 January 1997, we promulgated a Resolution (a) granting the Motions for Intervention filed
by the DIK and MABINI and by the IBP, as well as the Motion for Leave to Intervene filed by
LABAN; (b) admitting the Amended Petition in Intervention of DIK and MABINI, and the
Petitions in Intervention of Senator Roco and of the IBP; (c) requiring the respondents to file
within a nonextendible period of five days their Consolidated Comments on the aforesaid
Petitions in Intervention; and (d) requiring LABAN to file its Petition in Intervention within a
nonextendible period of three days from notice, and the respondents to comment thereon within a
nonextendible period of five days from receipt of the said Petition in Intervention.

At the hearing of the case on 23 January 1997, the parties argued on the following pivotal issues,
which the Court formulated in light of the allegations and arguments raised in the pleadings so
far filed: chanrob1es virtual 1aw library

1. Whether R.A. No. 6735, entitled An Act Providing for a System of Initiative and Referendum
and Appropriating Funds Therefor, was intended to include or cover initiative on amendments to
the Constitution; and if so, whether the Act, as worded, adequately covers such initiative.

2. Whether that portion of COMELEC Resolution No. 2300 (In re: Rules and Regulations
Governing the Conduct of Initiative on the Constitution, and Initiative and Referendum on
National and Local Laws) regarding the conduct of initiative on amendments to the Constitution
is valid, considering the absence in the law of specific provisions on the conduct of such
initiative.

3. Whether the lifting of term limits of elective national and local officials, as proposed in the
draft "Petition for Initiative on the 1987 Constitution," would constitute a revision of, or an
amendment to, the Constitution.

4. Whether the COMELEC can take cognizance of, or has jurisdiction over, a petition solely
intended to obtain an order (a) fixing the time and dates for signature gathering; (b) instructing
municipal election officers to assist Delfin’s movement and volunteers in establishing signature
stations; and (c) directing or causing the publication of, inter alia, the unsigned proposed Petition
for Initiative on the 1987 Constitution.

5. Whether it is proper for the Supreme Court to take cognizance of the petition when there is a
pending case before the COMELEC.

After hearing them on the issues, we required the parties to submit simultaneously their
respective memoranda within twenty days and requested intervenor Senator Roco to submit
copies of the deliberations on House Bill No. 21505.

On 27 January 1997, LABAN filed its Petition in Intervention wherein it adopts the allegations
and arguments in the main Petition. It further submits that the COMELEC should have dismissed
the Delfin Petition for failure to state a sufficient cause of action and that the Commission’s
failure or refusal to do so constituted grave abuse of discretion amounting to lack of jurisdiction.

On 28 January 1997, Senator Roco submitted copies of portions of both the Journal and the
Record of the House of Representatives relating to the deliberations of House Bill No. 21505, as
well as the transcripts of stenographic notes on the proceedings of the Bicameral Conference
Committee, Committee on Suffrage and Electoral Reforms, of 6 June 1989 on House Bill No.
21505 and Senate Bill No. 17.

Private respondents Alberto and Carmen Pedrosa filed their Consolidated Comments on the
Petitions in Intervention of Senator Roco, DIK and MABINI, and IBP. 23 The parties thereafter
filed, in due time, their separate memoranda. 24

As we stated in the beginning, we resolved to give due course to this special civil action.
For a more logical discussion of the formulated issues, we shall first take up the fifth issue which
appears to pose a prejudicial procedural question.

THE INSTANT PETITION IS VIABLE DESPITE THE PENDENCY IN THE COMELEC OF

THE DELFIN PETITION.

Except for the petitioners and intervenor Roco, the parties paid no serious attention to the fifth
issue, i.e., whether it is proper for this Court to take cognizance of this special civil action when
there is a pending case before the COMELEC. The petitioners provide an affirmative answer.
Thus: chanrob1es virtual 1aw library

28. The Comelec has no jurisdiction to take cognizance of the petition filed by private
respondent Delfin. This being so, it becomes imperative to stop the Comelec from proceeding
any further, and under the Rules of Court, Rule 65, Section 2, a petition for prohibition is the
proper remedy.

29. The writ of prohibition is an extraordinary judicial writ issuing out of a court of superior
jurisdiction and directed to an inferior court, for the purpose of preventing the inferior tribunal
from usurping a jurisdiction with which it is not legally vested. (People v. Vera, supra., p. 84). In
this case the writ is an urgent necessity, in view of the highly divisive and adverse environmental
consequences on the body politic of the questioned Comelec order. The consequent climate of
legal confusion and political instability begs for judicial statesmanship.

30. In the final analysis, when the system of constitutional law is threatened by the political
ambitions of man, only the Supreme Court can save a nation in peril and uphold the paramount
majesty of the Constitution.25 cralaw:red

It must be recalled that intervenor Roco filed with the COMELEC a motion to dismiss the Delfin
Petition on the ground that the COMELEC has no jurisdiction or authority to entertain the
petition. 26 The COMELEC made no ruling thereon evidently because after having heard the
arguments of Delfin and the oppositors at the hearing on 12 December 1996, it required them to
submit within five days their memoranda or oppositions/memoranda. 27 Earlier, or specifically
on 6 December 1996, it practically gave due course to the Delfin Petition by ordering Delfin to
cause the publication of the petition, together with the attached Petition for Initiative, the
signature form, and the notice of hearing; and by setting the case for hearing. The COMELEC’s
failure to act on Roco’s motion to dismiss and its insistence to hold on to the petition rendered
ripe and viable the instant petition under Section 2 of Rule 65 of the Rules of Court, which
provides: chanrob1es virtual 1aw library

SEC. 2. Petition for prohibition. — Where the proceedings of any tribunal, corporation, board, or
person, whether exercising functions judicial or ministerial, are without or in excess of its or his
jurisdiction, or with grave abuse of discretion, and there is no appeal or any other plain, speedy
and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a
verified petition in the proper court alleging the facts with certainty and praying that judgment be
rendered commanding the defendant to desist from further proceedings in the action or matter
specified therein.

It must also be noted that intervenor Roco claims that the COMELEC has no jurisdiction over
the Delfin Petition because the said petition is not supported by the required minimum number of
signatures of registered voters. LABAN also asserts that the COMELEC gravely abused its
discretion in refusing to dismiss the Delfin Petition, which does not contain the required number
of signatures. In light of these claims, the instant case may likewise be treated as a special civil
action for certiorari under Section I of Rule 65 of the Rules of Court.

In any event, as correctly pointed out by intervenor Roco in his Memorandum, this Court may
brush aside technicalities of procedure in cases of transcendental importance. As we stated in
Kilosbayan, Inc. v. Guingona, Jr.; 28

A party’s standing before this Court is a procedural technicality which it may, in the exercise of
its discretion, set aside in view of the importance of issues raised. In the landmark Emergency
Powers Cases, this Court brushed aside this technicality because the transcendental importance
to the public of these cases demands that they be settled promptly and definitely, brushing aside,
if we must, technicalities of procedure.

II

R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM OF INITIATIVE ON

AMENDMENTS TO THE CONSTITUTION, BUT IS, UNFORTUNATELY, INADEQUATE
TO COVER THAT SYSTEM.

Section 2 of Article XVII of the Constitution provides: chanrob1es virtual 1aw library

SEC. 2. Amendments to this Constitution may likewise be directly proposed by the people
through initiative upon a petition of at least twelve per centum of the total number of registered
voters, of which every legislative district must be represented by at least three per centum of the
registered voters therein. No amendment under this section shall be authorized within five years
following the ratification of this Constitution nor oftener than once every five years thereafter.

The Congress shall provide for the implementation of the exercise of this right.

This provision is not self-executory. In his book, 29 Joaquin Bernas, a member of the 1986
Constitutional Commission, stated: chanrob1es virtual 1aw library

Without implementing legislation Section 2 cannot operate. Thus, although this mode of
amending the Constitution is a mode of amendment which bypasses congressional action, in the
last analysis it still is dependent on congressional action.

Bluntly stated, the right of the people to directly propose amendments to the Constitution
through the system of initiative would remain entombed in the cold niche of the Constitution
until Congress provides for its implementation. Stated otherwise, while the Constitution has
recognized or granted that right, the people cannot exercise it if Congress, for whatever reason,
does not provide for its implementation.

This system of initiative was originally included in Section 1 of the draft Article on Amendment
or Revision proposed by the Committee on Amendments and Transitory Provisions of the 1986
Constitutional Commission in its Committee Report No. 7 (Proposed Resolution No. 332). 30
That section reads as follows: chanrob1es virtual 1aw library

SEC. 1. Any amendment to, or revision of, this Constitution may be proposed: chanrob1es virtual 1aw library

(a) by the National Assembly upon a vote of three-fourths of all its members; or

(b) by a constitutional convention; or

(c) directly by the people themselves thru initiative as provided for in Article _____ Section
_____ of the Constitution. 31

After several interpellations, but before the period of amendments, the Committee submitted a
new formulation of the concept of initiative which it denominated as Section 2; thus: chanrob1es virtual 1aw library

MR. SUAREZ.

Thank you, Madam President. May we respectfully call attention of the Members of the
Commission that pursuant to the mandate given to us last night, we submitted this afternoon a
complete Committee Report No. 7 which embodies the proposed provision governing the matter
of initiative. This is now covered by Section 2 of the complete committee report. With the
permission of the Members, may I quote Section 2: jgc:chanrobles.com.ph

"The people may, after five years from the date of the last plebiscite held, directly propose
amendments to this Constitution thru initiative upon petition of at least ten percent of the
registered voters." cralaw virtua1aw library

This completes the blanks appearing in the original Committee Report No. 7. 32

The interpellations on Section 2 showed that the details for carrying out Section 2 are left to the
legislature. Thus:
chanrob1es virtual 1aw library

FR. BERNAS.

Madam President, just two simple, clarificatory questions.

First, on Section 1 on the matter of initiative upon petition of at least 10 percent, there are no
details in the provision on how to carry this out. Do we understand therefore that we are leaving
this matter to the legislature?

MR. SUAREZ.
That is right, Madam President.

FR. BERNAS.

And do we also understand, therefore, that for as long as the legislature does not pass the
necessary implementing law on this, this will not operate?

MR. SUAREZ.

That matter was also taken up during the committee hearing, especially with respect to the
budget appropriations which would have to be legislated so that the plebiscite could be called.
We deemed it best that this matter be left to the legislature. The Gentleman is right. In any event,
as envisioned, no amendment through the power of initiative can be called until after five years
from the date of the ratification of this Constitution. Therefore, the first amendment that could be
proposed through the exercise of this initiative power would be after five years. It is reasonably
expected that within that five-year period, the National Assembly can come up with the
appropriate rules governing the exercise of this power.

FR. BERNAS.

Since the matter is left to the legislature — the details on how this is to be carried out — is it
possible that, in effect, what will be presented to the people for ratification is the work of the
legislature rather than of the people? Does this provision exclude that possibility?

MR. SUAREZ.

No, it does not exclude that possibility because even the legislature itself as a body could
propose that amendment, maybe individually or collectively, if it fails to muster the three-fourths
vote in order to constitute itself as a constituent assembly and submit that proposal to the people
for ratification through the process of an initiative.

x        x       x

MS. AQUINO.

Do I understand from the sponsor that the intention in the proposal is to vest constituent power in
the people to amend the Constitution?

MR. SUAREZ.

That is absolutely correct, Madam President.

MS. AQUINO.

I fully concur with the underlying precept of the proposal in terms of institutionalizing popular
participation in the drafting of the Constitution or in the amendment thereof, but I would have a
lot of difficulties in terms of accepting the draft of Section 2, as written. Would the sponsor agree
with me that in the hierarchy of legal mandate, constituent power has primacy over all other legal
mandates?

MR. SUAREZ.

The Commissioner is right, Madam President.

MS. AQUINO.

And would the sponsor agree with me that in the hierarchy of legal values, the Constitution is
source of all legal mandates and that therefore we require a great deal of circumspection in the
drafting and in the amendments of the Constitution?

MR. SUAREZ.

That proposition is nondebatable.

MS. AQUINO.

Such that in order to underscore the primacy of constituent power we have a separate article in
the Constitution that would specifically cover the process and the modes of amending the
Constitution?

MR. SUAREZ.

That is right, Madam President.

MS. AQUINO.

Therefore, is the sponsor inclined, as the provisions are drafted now, to again concede to the
legislature the process or the requirement of determining the mechanics of amending the
Constitution by people’s initiative?

MR. SUAREZ.

The matter of implementing this could very well be placed in the hands of the National
Assembly, not unless we can incorporate into this provision the mechanics that would adequately
cover all the conceivable situations. 33

It was made clear during the interpellations that the aforementioned Section 2 is limited to
proposals to AMEND — not to REVISE — the Constitution; thus: chanrob1es virtual 1aw library

MR. SUAREZ.
. . . This proposal was suggested on the theory that this matter of initiative, which came about
because of the extraordinary developments this year, has to be separated from the traditional
modes of amending the Constitution as embodied in Section 1. The committee members felt that
this system of initiative should not extend to the revision of the entire Constitution, so we
removed it from the operation of Section 1 of the proposed Article on Amendment or Revision.
34

x        x       x

MS. AQUINO.

In which case, I am seriously bothered by providing this process of initiative as a separate

section in the Article on Amendment. Would the sponsor be amenable to accepting an
amendment in terms of realigning Section 2 as another subparagraph (c) of Section 1, instead of
setting it up as another separate section as if it were a self-executing provision?

MR. SUAREZ.

We would be amenable except that, as we clarified a while ago, this process of initiative is
limited to the matter of amendment and should not expand into a revision which contemplates a
total overhaul of the Constitution. That was the sense that was conveyed by the Committee.

MS. AQUINO.

In other words, the Committee was attempting to distinguish the coverage of modes (a) and (b)
in Section 1 to include the process of revision; whereas the process of initiation to amend, which
is given to the public, would only apply to amendments?

MR. SUAREZ.

That is right. Those were the terms envisioned in the Committee. 35

Amendments to the proposed Section 2 were thereafter introduced by then Commissioner Hilario
G. Davide, Jr., which the Committee accepted. Thus: chanrob1es virtual 1aw library

MR. DAVIDE.

Thank you Madam President. I propose to substitute the entire Section 2 with the following: chanrob1es virtual 1aw library

x        x       x

MR. DAVIDE.

Madam President, I have modified the proposed amendment after taking into account the
modifications submitted by the sponsor himself and the honorable Commissioners Guingona,
Monsod, Rama, Ople, de los Reyes and Romulo. The modified amendment in substitution of the
proposed Section 2 will now read as follows: jgc:chanrobles.com.ph

"SEC. 2. — AMENDMENTS TO THIS CONSTITUTION MAY LIKEWISE BE DIRECTLY

PROPOSED BY THE PEOPLE THROUGH INITIATIVE UPON A PETITION OF AT LEAST
TWELVE PERCENT OF THE TOTAL NUMBER OF REGISTERED VOTERS, OF WHICH
EVERY LEGISLATIVE DISTRICT MUST BE REPRESENTED BY AT LEAST THREE
PERCENT OF THE REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER THIS
SECTION SHALL BE AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE
RATIFICATION OF THIS CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE
YEARS THEREAFTER.

THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE IMPLEMENTATION

OF THE EXERCISE OF THIS RIGHT.

MR. SUAREZ.

Madam President, considering that the proposed amendment is reflective of the sense contained
in Section 2 of our completed Committee Report No. 7, we accept the proposed amendment. 36

The interpellations which ensued on the proposed modified amendment to Section 2 clearly
showed that it was a legislative act which must implement the exercise of the right. Thus:chanrob1es virtual 1aw library

MR. ROMULO.

Under Commissioner Davide’s amendment, is it possible for the legislature to set forth certain
procedures to carry out the initiative . . .?

MR. DAVIDE.

It can.

x        x       x

MR. ROMULO.

But the Commissioner’s amendment does not prevent the legislature from asking another body to
set the proposition in proper form.

MR. DAVIDE.

The Commissioner is correct. In other words, the implementation of this particular right would
be subject to legislation, provided the legislature cannot determine anymore the percentage of the
requirement.

MR. ROMULO.
But the procedures, including the determination of the proper form for submission to the people,
may be subject to legislation.

MR. DAVIDE.

As long as it will not destroy the substantive right to initiate. In other words, none of the
procedures to be proposed by the legislative body must diminish or impair the right conceded
here.

MR. ROMULO.

In that provision of the Constitution can the procedures which I have discussed be legislated?

MR. DAVIDE.

Yes. 37

Commissioner Davide also reaffirmed that his modified amendment strictly confines initiative to
AMENDMENTS to — NOT REVISION of — the Constitution. Thus: chanrob1es virtual 1aw library

MR. DAVIDE.

With pleasure, Madam President.

MR. MAAMBONG.

My first question: Commissioner Davide’s proposed amendment on line 1 refers to

"amendment." Does it not cover the word "revision" as defined by Commissioner Padilla when
he made the distinction between the words "amendments" and "revision" ?

MR. DAVIDE.

No, it does not, because "amendments" and "revision" should be covered by Section 1. So
insofar as initiative is concerned, it can only relate to "amendments" not "revision." 38

Commissioner Davide further emphasized that the process of proposing amendments through
initiative must be more rigorous and difficult than the initiative on legislation. Thus: chanrob1es virtual 1aw library

MR. DAVIDE.

A distinction has to be made that under this proposal, what is involved is an amendment to the
Constitution. To amend a Constitution would ordinarily require a proposal by the National
Assembly by a vote of three-fourths; and to call a constitutional convention would require a
higher number. Moreover, just to submit the issue of calling a constitutional convention, a
majority of the National Assembly is required, the import being that the process of amendment
must be made more rigorous and difficult than probably initiating an ordinary legislation or
putting an end to a law proposed by the National Assembly by way of a referendum. I cannot
agree to reducing the requirement approved by the Committee on the Legislative because it
would require another voting by the Committee, and the voting as precisely based on a
requirement of 10 percent. Perhaps, I might present such a proposal, by way of an amendment,
when the Commission shall take up the Article on the Legislative or on the National Assembly
on plenary sessions. 39

The Davide modified amendments to Section 2 were subjected to amendments, and the final
version, which the Commission approved by a vote of 31 in favor and 3 against, reads as
follows:chanrob1es virtual 1aw library

MR. DAVIDE.

Thank you Madam President. Section 2, as amended, reads as follows: "AMENDMENT TO

THIS CONSTITUTION MAY LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE
THROUGH INITIATIVE UPON A PETITION OF AT LEAST TWELVE PERCENT OF THE
TOTAL NUMBER OF REGISTERED VOTERS, OF WHICH EVERY LEGISLATIVE
DISTRICT MUST BE REPRESENTED BY AT LEAST THREE PERCENT OF THE
REGISTERED VOTERS THEREOF. NO AMENDMENT UNDER THIS SECTION SHALL
BE AUTHORIZED WITHIN FIVE YEARS FOLLOWING THE RATIFICATION OF THIS
CONSTITUTION NOR OFTENER THAN ONCE EVERY FIVE YEARS THEREAFTER.

THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE FOR THE IMPLEMENTATION

OF THE EXERCISE OF THIS RIGHT. 40

The entire proposed Article on Amendments or Revisions was approved on second reading on 9
July 1986. 41 Thereafter, upon his motion for reconsideration, Commissioner Gascon was
allowed to introduce an amendment to Section 2 which, nevertheless, was withdrawn. In view
thereof, the Article was again approved on Second and Third Readings on 1 August 1986. 42

However, the Committee on Style recommended that the approved Section 2 be amended by
changing "percent" to "per centum" and "thereof" to "therein" and deleting the phrase "by law" in
the second paragraph so that said paragraph reads: The Congress 43 shall provide for the
implementation of the exercise of this right. 44 This amendment was approved and is the text of
the present second paragraph of Section 2.

The conclusion then is inevitable that, indeed, the system of initiative on the Constitution under
Section 2 of Article XVII of the Constitution is not self-executory.

Has Congress "provided" for the implementation of the exercise of this right? Those who answer
the question in the affirmative, like the private respondents and intervenor Senator Roco, point to
us R.A. No. 6735.

There is, of course, no other better way for Congress to implement the exercise of the right than
through the passage of a statute or legislative act. This is the essence or rationale of the last
minute amendment by the Constitutional Commission to substitute the last paragraph of Section
2 of Article XVII then reading:chanrob1es virtual 1aw library

The Congress 45 shall by law provide for the implementation of the exercise of this right.

with

The Congress shall provide for the implementation of the exercise of this right.

This substitute amendment was an investiture on Congress of a power to provide for the rules
implementing the exercise of the right. The "rules" means "the details on how [the right] is to be
carried out." 46

We agree that R.A. No. 6735 was, as its history reveals, intended to cover initiative to propose
amendments to the Constitution. The Act is a consolidation of House Bill No. 21505 and Senate
Bill No. 17. The former was prepared by the Committee on Suffrage and Electoral Reforms of
the House of Representatives on the basis of two House Bills referred to it, viz., (a) House Bill
No. 497, 47 which dealt with the initiative and referendum mentioned in Sections 1 and 32 of
Article VI of the Constitution; and (b) House Bill No. 988, 48 which dealt with the subject
matter of House Bill No. 497, as well as with initiative and referendum under Section 3 of
Article X (Local Government) and initiative provided for in Section 2 of Article XVII of the
Constitution. Senate Bill No. 17 49 solely dealt with initiative and referendum concerning
ordinances or resolutions of local government units. The Bicameral Conference Committee
consolidated Senate Bill No. 17 and House Bill No. 21505 into a draft bill, which was
subsequently approved on 8 June 1989 by the Senate 50 and by the House of Representatives. 51
This approved bill is now R.A. No. 6735.

But is R.A. No. 6735 a full compliance with the power and duty of Congress to "provide for the
implementation of the exercise of the right?"

A careful scrutiny of the Act yields a negative answer.

First. Contrary to the assertion of public respondent COMELEC, Section 2 of the Act does not
suggest an initiative on amendments to the Constitution. The said section reads: chanrob1es virtual 1aw library

SEC. 2. Statement and Policy. — The power of the people under a system of initiative and
referendum to directly propose, enact, approve or reject, in whole or in part, the Constitution,
laws, ordinances, or resolutions passed by any legislative body upon compliance with the
requirements of this Act is hereby affirmed, recognized and guaranteed. (Emphasis supplied).

The inclusion of the word "Constitution" therein was a delayed afterthought. That word is neither
germane nor relevant to said section, which exclusively relates to initiative and referendum on
national laws and local laws, ordinances, and resolutions. That section is silent as to amendments
on the Constitution. As pointed out earlier, initiative on the Constitution is confined only to
proposals to AMEND. The people are not accorded the power to "directly propose, enact,
approve, or reject, in whole or in part, the Constitution" through the system of initiative. They
can only do so with respect to "laws, ordinances, or resolutions." cralaw virtua1aw library

The foregoing conclusion is further buttressed by the fact that this section was lifted from
Section 1 of Senate Bill No. 17, which solely referred to a statement of policy on local initiative
and referendum and appropriately used the phrases "propose and enact," "approve or reject" and
"in whole or in part." 52

Second. It is true that Section 3 (Definition of Terms) of the Act defines initiative on
amendments to the Constitution and mentions it as one of the three systems of initiative, and that
Section 5 (Requirements) restates the constitutional requirements as to the percentage of the
registered voters who must submit the proposal. But unlike in the case of the other systems of
initiative, the Act does not provide for the contents of a petition for initiative on the Constitution.
Section 5, paragraph (c) requires, among other things, statement of the proposed law sought to be
enacted, approved or rejected, amended or repealed, as the case may be. It does not include, as
among the contents of the petition, the provisions of the Constitution sought to be amended, in
the case of initiative on the Constitution. Said paragraph (c) reads in full as follows: chanroblesvirtuallawlibrary:red

(c) The petition shall state the following: chanrob1es virtual 1aw library

c.1 contents or text of the proposed law sought to be enacted, approved or rejected, amended or
repealed, as the case may be;

c.2 the proposition;

c.3 the reason or reasons therefor;

c.4 that it is not one of the exceptions provided therein;

c.5 signatures of the petitioners or registered voters; and

c.6 an abstract or summary proposition is not more than one hundred (100) words which shall be
legibly written or printed at the top of every page of the petition. (Emphasis supplied).

The use of the clause "proposed laws sought to be enacted, approved or rejected, amended or
repealed" only strengthens the conclusion that Section 2, quoted earlier, excludes initiative on
amendments to the Constitution.

Third. While the Act provides subtitles for National Initiative and Referendum (Subtitle II) and
for Local Initiative and Referendum (Subtitle III), no subtitle is provided for initiative on the
Constitution. This conspicuous silence as to the latter simply means that the main thrust of the
Act is initiative and referendum on national and local laws. If Congress intended R.A. No. 6735
to fully provide for the implementation of the initiative on amendments to the Constitution, it
could have provided for a subtitle therefor, considering that in the order of things, the primacy of
interest, or hierarchy of values, the right of the people to directly propose amendments to the
Constitution is far more important than the initiative on national and local laws.
We cannot accept the argument that the initiative on amendments to the Constitution is
subsumed under the subtitle on National Initiative and Referendum because it is national in
scope. Our reading of Subtitle II (National Initiative and Referendum) and Subtitle III (Local
Initiative and Referendum) leaves no room for doubt that the classification is not based on the
scope of the initiative involved, but on its nature and character. It is "national initiative," if what
is proposed to be adopted or enacted is a national law, or a law which only Congress can pass. It
is "local initiative" if what is proposed to be adopted or enacted is a law, ordinance, or resolution
which only the legislative bodies of the governments of the autonomous regions, provinces,
cities, municipalities, and barangays can pass. This classification of initiative into national and
local is actually based on Section 3 of the Act, which we quote for emphasis and clearer
understanding: chanrob1es virtual 1aw library

SEC. 3. Definition of Terms —

x        x       x

There are three (3) systems of initiative, namely: chanrob1es virtual 1aw library

a.1 Initiative on the Constitution which refers to a petition proposing amendments to the
Constitution;

a.2 Initiative on Statutes which refers to a petition proposing to enact a national legislation; and

a.3 Initiative on local legislation which refers to a petition proposing to enact a regional,
provincial, city, municipal, or barangay law, resolution or ordinance. (Emphasis supplied).

Hence, to complete the classification under subtitles there should have been a subtitle on
initiative on amendments to the Constitution. 53

A further examination of the Act even reveals that the subtitling is not accurate. Provisions not
germane to the subtitle on National Initiative and Referendum are placed therein, like (1)
paragraphs (b) and (c) of Section 9, which reads: chanrob1es virtual 1aw library

(b) The proposition in an initiative on the Constitution approved by the majority of the votes cast
in the plebiscite shall become effective as to the day of the plebiscite.

(c) A national or local initiative proposition approved by majority of the votes cast in an election
called for the purpose shall become effective fifteen (15) days after certification and
proclamation of the Commission. (Emphasis supplied).

(2) that portion of Section 11 (Indirect Initiative) referring to indirect initiative with the
legislative bodies of local governments; thus: chanrob1es virtual 1aw library

SEC. 11. Indirect Initiative. — Any duly accredited people’s organization, as defined by law,
may file a petition for indirect initiative with the House of Representatives, and other legislative
bodies. . .
and (3) Section 12 on Appeal, since it applies to decisions of the COMELEC on the findings of
sufficiency or insufficiency of the petition for initiative or referendum, which could be petitions
for both national and local initiative and referendum.

Upon the other hand, Section 18 on "Authority of Courts" under subtitle III on Local Initiative
and Referendum is misplaced, 54 since the provision therein applies to both national and local
initiative and referendum. It reads: chanrob1es virtual 1aw library

SEC. 18. Authority of Courts. — Nothing in this Act shall prevent or preclude the proper courts
from declaring null and void any proposition approved pursuant to this Act for violation of the
Constitution or want of capacity of the local legislative body to enact the said measure.

Curiously, too, while R.A. No. 6735 exerted utmost diligence and care in providing for the
details in the implementation of initiative and referendum on national and local legislation
thereby giving them special attention, it failed, rather intentionally, to do so on the system of
initiative on amendments to the Constitution. Anent the initiative on national legislation, the Act
provides for the following: chanrob1es virtual 1aw library

(a) The required percentage of registered voters to sign the petition and the contents of the
petition;

(b) The conduct and date of the initiative;

(c) The submission to the electorate of the proposition and the required number of votes for its
approval;

(d) The certification by the COMELEC of the approval of the proposition;

(e) The publication of the approved proposition in the Official Gazette or in a newspaper of
general circulation in the Philippines; and

(f) The effects of the approval or rejection of the proposition. 55

As regards local initiative, the Act provides for the following: chanrob1es virtual 1aw library

(a) The preliminary requirement as to the number of signatures of registered voters for the
petition;

(b) The submission of the petition to the local legislative body concerned;

(c) The effect of the legislative body’s failure to favorably act thereon, and the invocation of the
power of initiative as a consequence thereof;

(d) The formulation of the proposition;

(e) The period within which to gather the signatures;

(f) The persons before whom the petition shall be signed;

(g) The issuance of a certification by the COMELEC through its official in the local government
unit concerned as to whether the required number of signatures have been obtained;

(h) The setting of a date by the COMELEC for the submission of the proposition to the
registered voters for their approval, which must be within the period specified therein;

(i) The issuance of a certification of the result;

(j) The date of effectivity of the approved proposition;

(k) The limitations on local initiative; and

(l) The limitations upon local legislative bodies. 56

Upon the other hand, as to initiative on amendments to the Constitution, R.A. No. 6735, in all of
its twenty-three sections, merely (a) mentions, the word "Constitution" in Section 2; (b) defines
"initiative on the Constitution" and includes it in the enumeration of the three systems of
initiative in Section 3; (c) speaks of "plebiscite" as the process by which the proposition in an
initiative on the Constitution may be approved or rejected by the people; (d) reiterates the
constitutional requirements as to the number of voters who should sign the petition; and (e)
provides for the date of effectivity of the approved proposition.

There was, therefore, an obvious downgrading of the more important or the paramount system of
initiative. R.A. No. 6735 thus delivered a humiliating blow to the system of initiative on
amendments to the Constitution by merely paying it a reluctant lip service. 57

The foregoing brings us to the conclusion that R.A. No. 6735 is incomplete, inadequate, or
wanting in essential terms and conditions insofar as initiative on amendments to the Constitution
is concerned. Its lacunae on this substantive matter are fatal and cannot be cured by
"empowering" the COMELEC "to promulgate such rules and regulations as may be necessary to
carry out the purposes of [the] Act. 58

The rule is that what has been delegated, cannot be delegated or as expressed in a Latin maxim:
potestas delegata non delegari potest. 59 The recognized exceptions to the rule are as follows:chanrob1es virtual 1aw library

(1) Delegation of tariff powers to the President under Section 28(2) of Article VI of the
Constitution;

(2) Delegation of emergency powers to the President under Section 23(2) of Article VI of the
Constitution;

(3) Delegation to the people at large;

(4) Delegation to local governments; and

(5) Delegation to administrative bodies. 60

Empowering the COMELEC, an administrative body exercising quasi-judicial functions, to

promulgate rules and regulations is a form of delegation of legislative authority under no. 5
above. However, in every case of permissible delegation, there must be a showing that the
delegation itself is valid. It is valid only if the law (a) is complete in itself, setting forth therein
the policy to be executed, carried out, or implemented by the delegate; and (b) fixes a standard
— the limits of which are sufficiently determinate and determinable — to which the delegate
must conform in the performance of his functions. 61 A sufficient standard is one which defines
legislative policy, marks its limits, maps out its boundaries and specifies the public agency to
apply it. It indicates the circumstances under which the legislative command is to be effected. 62

Insofar as initiative to propose amendments to the Constitution is concerned, R.A. No. 6735
miserably failed to satisfy both requirements in subordinate legislation. The delegation of the
power to the COMELEC is then invalid.

III

COMELEC RESOLUTION NO. 2300, INSOFAR AS IT PRESCRIBES RULES AND

REGULATIONS ON THE CONDUCT OF INITIATIVE ON AMENDMENTS TO THE
CONSTITUTION, IS VOID.

It logically follows that the COMELEC cannot validly promulgate rules and regulations to
implement the exercise of the right of the people to directly propose amendments to the
Constitution through the system of initiative. It does not have that power under R.A. No. 6735.
Reliance on the COMELEC’s power under Section 2(1) of Article IX-C of the Constitution is
misplaced, for the laws and regulations referred to therein are those promulgated by the
COMELEC under (a) Section 3 of Article IX-C of the Constitution, or (b) a law where
subordinate legislation is authorized and which satisfies the "completeness" and the "sufficient
standard" tests.

IV

COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE ABUSE OF

DISCRETION IN ENTERTAINING THE DELFIN PETITION.

Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance with the power of
Congress to implement the right to initiate constitutional amendments, or that it has validly
vested upon the COMELEC the power of subordinate legislation and that COMELEC Resolution
No. 2300 is valid, the COMELEC acted without jurisdiction or with grave abuse of discretion in
entertaining the Delfin Petition.
Under Section 2 of Article XVII of the Constitution and Section 5(b)of R.A. No. 6735, a petition
for initiative on the Constitution must be signed by at least 12% of the total number of registered
voters of which every legislative district is represented by at least 3% of the registered voters
therein. The Delfin Petition does not contain signatures of the required number of voters. Delfin
himself admits that he has not yet gathered signatures and that the purpose of his petition is
primarily to obtain assistance in his drive to gather signatures. Without the required signatures,
the petition cannot be deemed validly initiated.

The COMELEC acquires jurisdiction over a petition for initiative only after its filing. The
petition then is the initiatory pleading. Nothing before its filing is cognizable by the COMELEC,
sitting en banc. The only participation of the COMELEC or its personnel before the filing of
such petition are (1) to prescribe the form of the petition; 63 (2) to issue through its Election
Records and Statistics Office a certificate on the total number of registered voters in each
legislative district; 64 (3) to assist, through its election registrars, in the establishment of
signature stations; 65 and (4) to verify, through its election registrars, the signatures on the basis
of the registry list of voters, voters’ affidavits, and voters’ identification cards used in the
immediately preceding election. 66

Since the Delfin Petition is not the initiatory petition under R.A. No. 6735 and COMELEC
Resolution No. 2300, it cannot be entertained or given cognizance of by the COMELEC. The
respondent Commission must have known that the petition does not fall under any of the actions
or proceedings under the COMELEC Rules of Procedure or under Resolution No. 2300, for
which reason it did not assign to the petition a docket number. Hence, the said petition was
merely entered as UND, meaning, undocketed. That petition was nothing more than a mere scrap
of paper, which should not have been dignified by the Order of 6 December 1996, the hearing on
12 December 1996, and the order directing Delfin and the oppositors to file their memoranda or
oppositions. In so dignifying it, the COMELEC acted without jurisdiction or with grave abuse of
discretion and merely wasted its time, energy, and resources.

The foregoing considered, further discussion on the issue of whether the proposal to lift the term
limits of elective national and local officials is an amendment to, and not a revision of, the
Constitution is rendered unnecessary, if not academic.

CONCLUSION

This petition must then be granted, and the COMELEC should be permanently enjoined from
entertaining or taking cognizance of any petition for initiative on amendments to the Constitution
until a sufficient law shall have been validly enacted to provide for the implementation of the
system.

We feel, however, that the system of initiative to propose amendments to the Constitution should
no longer be kept in the cold; it should be given flesh and blood, energy and strength. Congress
should not tarry any longer in complying with the constitutional mandate to provide for the
implementation of the right of the people under that system. chanroblesvirtualawlibrary

WHEREFORE, judgment is hereby rendered

a) GRANTING the instant petition;

b) DECLARING R. A. No. 6735 inadequate to cover the system of initiative on amendments to

the Constitution, and to have failed to provide sufficient standard for subordinate legislation;

c) DECLARING void those parts of Resolution No. 2300 of the Commission on Elections
prescribing rules and regulations on the conduct of initiative or amendments to the Constitution;
and

d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition

(UND-96-037).

The Temporary Restraining Order issued on 18 December 1996 is made permanent as against the
Commission on Elections, but is LIFTED as against private respondents.

Resolution on the matter of contempt is hereby reserved.

SO ORDERED.
[G.R. No. L-1123. March 5, 1947.]

ALEJO MABANAG, ET AL., Petitioners, v. JOSE LOPEZ VITO, ET AL., Respondents.

CONSTITUTIONAL AND POLITICAL LAW; JUDICIARY; POLITICAL QUESTIONS NOT

WITHIN PROVINCE OF. — Political questions are not within the province of the judiciary,
except to the extent that power to deal with such questions has been conferred upon the courts by
express constitutional or statutory provisions.

3. ID.; ID.; ID.; PROPOSAL OF CONSTITUTIONAL AMENDMENT A POLITICAL

QUESTION. — If ratification of a constitutional amendment is a political question, a proposal
which leads to ratification has to be a political question. The two steps complement each other in
a scheme intended to achieve a single objective. It is to be noted that the amendatory process as
provided in section 1 of Article XV of the Philippine Constitution "consists of (only) two distinct
parts: proposal and ratification." There is no logic in attaching political character to one and
with-holding that character from the other. Proposal to amend the Constitution is a highly
politics function performed by the Congress in its sovereign legislative capacity and committed
to its charge by the Constitution itself. The exercise of this power is even independent of any
intervention by the Chief Executive. If on grounds of expediency scrupulous attention of the
judiciary be needed to safeguard public interest, there is less reason for judicial inquiry into the
validity of a proposal than into that of a ratification.

4. EVIDENCE; DULY AUTHENTICATED BILL OR RESOLUTION, CONCLUSIVENESS

OF. — A duly authenticated bill or resolution imports absolute verity and is binding on the
courts. The rule conforms to the policy of the law making body as expressed in section 313 of
the old Code of Civil Procedure, as amended by Act No. 2210.

DECISION

TUASON, J.:

This is a petition for prohibition to prevent the enforcement of a congressional resolution

designated "Resolution of both houses proposing an amendment to the Constitution of the
Philippines to be appended as an ordinance thereto." The members of the Commission on
Elections, the Treasurer of the Philippines, the Auditor General, and the Director of the Bureau
of Printing are made defendants, and the petitioners are eight senators, seventeen representatives,
and the presidents of the Democratic Alliance, the Popular Front and the Philippine Youth Party.
The validity of the above-mentioned resolution is attacked as contrary to the Constitution.

The case was heard on the pleadings and stipulation of facts. In our view of the case it is
unnecessary to go into the facts at length. We will mention only the facts essential for the proper
understanding of the issues. For this purpose it suffices to say that three of the plaintiff senators
and eight of the plaintiff representatives had been proclaimed by a majority vote of the
Commission on Elections as having been elected senators and representatives in the elections
held on April 23, 1946. The three senators were suspended by the Senate shortly after the
opening of the first session of Congress following the elections, on account of alleged
irregularities in their election. The eight representatives since their election had not been allowed
to sit in the lower House, except to take part in the election of the Speaker, for the same reason,
although they had not been formally suspended. A resolution for their suspension had been
introduced in the House of Representatives, but that resolution had not been acted upon
definitely by the House when the present petition was filed.

As a consequence these three senators and eight representatives did not take part in the passage
of the questioned resolution, nor was their membership reckoned within the computation of the
necessary three-fourths vote which is required in proposing an amendment to the Constitution. If
these members of Congress had been counted, the affirmative votes in favor of the proposed
amendment would have been short of the necessary three-fourths vote in either branch of
Congress.

At the threshold we are met with the question of the jurisdiction of this Court. The respondents
deny that this Court has jurisdiction, relying on the conclusiveness on the courts of an enrolled
bill or resolution. There is some merit in the petitioners’ contention that this is confusing
jurisdiction, which is a matter of substantive law, with conclusiveness of an enactment or
resolution, which is a matter of evidence and practice. This objection, however, is purely
academic. Whatever distinction there is in the juridical sense between the two concepts, in
practice and in their operation they boil down to the same thing. Basically the two notions are
synonymous in that both are founded on the regard which the judiciary accords a co-equal
coordinate, and independent departments of the Government. If a political question conclusively
binds the judges out of respect to the political departments, a duly certified law or resolution also
binds the judges under the "enrolled bill rule" born of that respect.

It is a doctrine too well established to need citation of authorities, that political questions are not
within the province of the judiciary, except to the extent that power to deal with such questions
has been conferred upon the courts by express constitutional or statutory provision. (16 C. J.S
431.) This doctrine is predicated on the principle of the separation of powers, a principle also too
well known to require elucidation or citation of authorities. The difficulty lies in determining
what matters fall within the meaning of political question. The term is not susceptible of exact
definition, and precedents and authorities are not always in full harmony as to the scope of the
restrictions, on this ground, on the courts to meddle with the actions of the political departments
of the government.

But there is one case approaching this in its circumstances: Coleman v. Miller, a relatively recent
decision of the United States Supreme Court reported and annotated in 122 A. L. R., 695. That
case, by a majority decision delivered by Mr. Chief Justice Hughes, is authority for the
conclusion that the efficacy of ratification by state legislature of a proposed amendment to the
Federal Constitution is a political question and hence not justiciable. The Court further held that
the decision by Congress, in its control of the Secretary of State, of the questions of whether an
amendment has been adopted within a reasonable time from the date of submission to the state
legislature, is not subject to review by the court.

If ratification of an amendment is a political question, a proposal which leads to ratification has

to be a political question. The two steps complement each other in a scheme intended to achieve
a single objective. It is to be noted that the amendatory process as provided in section I of Article
XV of the Philippine Constitution "consists of (only) two distinct parts: proposal and
ratification." There is no logic in attaching political character to one and withholding that
character from the other. Proposal to amend the Constitution is a highly political function
performed by the Congress in its sovereign legislative capacity and committed to its charge by
the Constitution itself. The exercise of this power is even in dependent of any intervention by the
Chief Executive. If on grounds of expediency scrupulous attention of the judiciary be needed to
safeguard public interest, there is less reason for judicial inquiry into the validity of a proposal
then into that of a ratification. As the Mississippi Supreme Court has once said: chanrob1es virtual 1aw library

There is nothing in the nature of the submission which should cause the free exercise of it to be
obstructed, or that could render it dangerous to the stability of the government; because the
measure derives all its vital force from the action of the people at the ballot box , and there can
never be danger in submitting in an established form, to a free people, the proposition whether
they will change their fundamental law. The means provided for the exercise of their sovereign
right of changing their constitution should receive such a construction as not to trammel the
exercise of the right. Difficulties and embarrassments in its exercise are in derogation of the right
of free government, which is inherent in the people; and the best security against tumult and
revolution is the free and unobstructed privilege to the people of the State to change their
constitution in the mode prescribed by the instrument." (Green v. Weller, 32 Miss., 650; note, 10
L. R. A., N. S., 150.)

Mr. Justice Black, in a concurring opinion joined in by Justices Roberts, Flankfurter and
Douglas, in Miller v. Coleman, supra, finds no basis for discriminating between proposal and
ratification. From his forceful opinion we quote the following paragraphs: jgc:chanrobles.com.ph

"The Constitution grant Congress exclusive power to control submission of constitutional

amendments. Final determination by Congress that ratification by three-fourths of the States has
taken place ’is conclusive upon the courts.’ In the exercise of that power, Congress, of course, is
governed by the Constitution. However, whether submission, intervening procedure or
Congressional determination of ratification conforms to the commands of the Constitution, call
for decisions by a ’political department’ of questions of a type which this Court has frequently
designated ’political.’ And decision of a ’political question’ by the ’political department’ to
which the Constitution has committed it ’conclusively binds the judges, as well as all other
officers, citizens and subjects of . . . government.’ Proclamation under authority of Congress that
an amendment has been ratified will carry with it a solemn assurance by the Congress that
ratification has taken place as the Constitution commands. Upon this assurance a proclaimed
amendment must be accepted as a part of the Constitution, leaving to the judiciary its traditional
authority of interpretation. To the extent that the Court’s opinion in the present case even
impliedly assumes a power to make judicial interpretation of the exclusive constitutional
authority of Congress over submission and ratification of amendments, we are unable to agree.

"The State court below assumed jurisdiction to determine whether the proper procedure is being
followed between submission and final adoption. However, it is apparent that judicial review of
or pronouncements upon a supposed limitation of a ’reasonable time’ within which Congress
may accept ratification; as to whether duly authorized State officials have proceeded properly in
ratifying or voting for ratification; or whether a State may reverse its action once taken upon a
proposed amendment; and kindred questions, are all consistent only with an ultimate control over
the amending process in the courts. And this must inevitably embarrass the course of amendment
by subjecting to judicial interference matters that we believe were entrusted by the Constitution
solely to the political branch of government.

"The Court here treats the amending process of the Constitution in some respects as subject to
judicial construction, in others as subject to the final authority of the Congress. There is no
disapproval of the conclusion arrived at in Drillon v. Gloss, that the Constitution impliedly
requires that a properly submitted amendment must die unless ratified within a ’reasonable time.’
Nor does the Court now disapprove its prior assumption of power to make such a
pronouncement. And it is not made clear that only Congress has constitutional power to
determine if there is any such implication in Article 5 of the Constitution. On the other hand, the
Court’s opinion declares that Congress has the exclusive power to decide the ’political questions’
of whether a State whose legislation has once acted upon a proposed amendment may
subsequently reverse its position, and whether, in the circumstances of such a case as this, an
amendment is dead because an ’unreasonable’ time has elapsed. No such division between the
political and judicial branches of the government is made by Article 5 which grants power over
the amending of the Constitution to Congress alone. Undivided control of that process has been
given by the Article exclusively and completely to Congress. The process itself is ’political’ in
its entirety, from submission until an amendment becomes part of the Constitution, and is not
subject to judicial guidance, control or interference at any point."
cralaw virtua1aw library

Mr. Justice Frankfurter, in another concurring opinion to which the other three justices
subscribed, arrives at the same conclusion. Though his thesis was the petitioner’s lack of
standing in court — a point which not having been raised by the parties herein we will not decide
— his reasoning inevitably extends to a consideration of the nature of the legislative proceeding
the legality of which the petitioners in that case assailed. From a different angle he sees the
matter as political. saying:
jgc:chanrobles.com.ph

"The right of the Kansas senators to be here is rested on recognition by Leser v. Garnett, 258 U.
S., 130; 66 Law. ed., 505; 42 S. Ct., 217, of a voter’s right to protect his franchise. The historic
source of this doctrine and the reasons for it were explained in Nixon v. Herndon, 273 U. S., 536,
540; 71 Law. ed., 759, 761; 47 S. Ct., 446. That was an action for $5,000 damages against the
Judges of Elections- for refusing to permit the plaintiff to vote at a primary election in Texas. In
disposing of the objection that the plaintiff had no cause of action because the subject matter of
the suit was political, Mr. Justice Holmes thus spoke for the Court: ’Of course the petition
concerns political action, but it alleges and seeks to recover for private damage. That private
damage may be caused by such political action and may be recovered for in a suit at law hardly
has been doubted for over two hundred years, since Ashby White, 2 Ld. Raym., 938; 92 Eng.
Reprint, 126; 1 Eng. Rul. Cas., 521; 3 Ld. Raym., 320; 92 Eng. Reprint, 710, and has been
recognized by this Court.’ ’Private damage’ is the clue to the famous ruling in Ashby v. White,
supra, and determines its scope as well as that of cases in this Court of which it is the
justification. The judgment of Lord Holt is permeated with the conception that a voter’s
franchise is a personal right, assessable in money damage of which the exact amount ’is
peculiarly appropriate for the determination of a jury,’ see Wiley v. Sinkler, 179 U. S., 58, 6a; 45
Law. ed., 84, 88; 21 S. Ct., 17, and for which there is no remedy outside the law
courts.’Although this matter relates to the parliament,’ said Lord Holt, ’yet it is an injury
precedaneous to the parliament, as my Lord Hale said in the case of Bernardiston v. Some, 2
Lev., 114, 116; 83 Eng. Peprint, 475. The parliament cannot judge of this injury, nor give
damage to the plaintiff for it: they cannot make him a recompense.’ (2 Ld. Raym., 938, 958; 92
Eng. Reprint, 126; 1 Eng. Rul. Cas., 521.)

"The reasoning of Ashby v. White and the practice which has followed it leave intra-
parliamentary controversies to parliaments and outside the scrutiny of law courts. The
procedures for voting in legislative assemblies — who are members, how and when they should
vote, what is the requisite number of votes for different phases of legislative activity, what votes
were cast and how they were counted — surely are matters that not merely concern political
action but are of the very essence of political action, if ’political’ has any connotation at all.
Marshall Field & Co. v. Clark, 143 U. S., 649, 670, et seq.; 36 Law. ed., 294, 302; 12 S. Ct., 495;
Leser V8. Garnett, 268 U. S., 130, 137; 66 Law. ed., 505, 511; 42 S. Ct., 217. In no sense are
they matters of private damage.’ They pertain to legislators not as individuals but as political
representatives executing the legislative process. To open the law courts to such controversies is
to have courts sit in judgment on the manifold disputes engendered by procedures for voting in
legislative assemblies. If the doctrine of Ashby v. White indicating the private rights of a voting
citizen has not been doubted for over two hundred years, it is equally significant that for over
two hundred years Ashby v. White has not been sought to be put to purposes like the present. In
seeking redness here these Kansas senators have wholly misconceived the functions of this
Court. The writ of certiorari to the Kansas Supreme Court should therefore he dismissed." cralaw virtua1aw library

We share the foregoing views. In our judgment they accord with sound principles of political
jurisprudence and represent liberal and advanced thought on the working of constitutional and
popular government as conceived in the fundamental law. Taken as persuasive authorities, they
offer enlightening understanding of the spirit of the United States institutions after which ours
are patterned.

But these concurring opinions have more than persuasive value. As will be presently shown, they
are the opinions which should operate to adjudicate the questions raised by the pleadings. To
make the point clear, it is necessary, at the risk of unduly lengthening this decision, to make a
statement and an analysis of the Coleman v. Miller case. Fortunately, the annotation on that case
in the American Law Reports, supra, comes to our aid and lightens our labor in this phase of the
controversy.
Coleman v. Miller was an original proceeding in mandamus brought in the Supreme Court of
Kansas by twenty-one members of the Senate, including twenty senators who had voted against a
resolution ratifying the Child Labor Amendment, and by three members of the House of
representatives, to compel the Secretary of the Senate to erase an indorsement on the resolution
to the effect that it had been adopted by the Senate and to indorse thereon the words "as not
passed They sought to restrain the offices of the Senate and House of Representatives from
signing the resolution, and the Secretary of State of Kansas from authenticating it and delivering
it to the Governor.

The background of the petition appears to have been that the Child Labor Amendment was
proposed by Congress ill June, 1924; that in January, 1925, the legislature of Kansas adopted a
resolution rejecting it and a copy of the ,resolution was sent to the Secretary of State of the
United States; that in January, 1927, a new resolution was introduced in the Senate of Kansas
ratifying the proposed amendment; that there were forty senators, twenty of whom voted for and
twenty against the resolution; and that as a result of the tie, the Lieutenant Governor cast his vote
in favor of the resolution.

The power of the Lieutenant Governor to vote was challenged, and the petition set forth the prior
rejection of the proposed amendment and alleged that in the period from June 1924 to March
1927, the proposed amendment had been r ejected by both houses of the legislatures of twenty-
six states and had been ratified only in five states, and that by reason of that rejection and the
failure of ratification within a reasonable time, the proposed amendment had lost its vitality.

The Supreme Court of Kansas entertained jurisdiction of all the issues but dismissed the petition
on the merits. When the case reached the Supreme Court of the United States the questions were
framed substantially in the following manner: chanrob1es virtual 1aw library

First, whether the court had jurisdiction; that is, whether the petitioners had standing to seek to
have the judgment of the state court reversed; second, whether the Lieutenant Governor had the
right to vote in case of a tie, as he did, it being the contention of the petitioners that "in the light
of the powers and duties of the Lieutenant Governor and his relation to the Senate under the state
Constitution, as construed by the Supreme Court of the state, the Lieutenant Governor was not a
part of the ’legislature’ so that under Article 5 of the Federal Constitution, he could be permitted
to have a deciding vote on the ratification of the proposed amendment, when the Senate was
equally divided" ; and third, the effect of the previous rejection of the amendment and of the
lapse of time after its submission.

The first question was decided in the affirmative. The second question, regarding the authority of
the Lieutenant Governor to vote, the court avoided, stating:. Whether this contention presents a
justiciable controversy, or a question which is political in its nature and hence not justiciable, is a
question upon which the Court is equally divided and therefore the court expresses no opinion
upon that point." On the third question, the Court reached the conclusion before referred to,
namely, (1) that the efficacy of ratification by state legislature of a proposed amendment to the
Federal Constitution is a political question, within the ultimate power of Congress in the exercise
of its control and of the promulgation of the adoption of amendment, and (2) that the decision by
Congress, in its control of the action of the Secretary of State, of the questions whether an
amendment to the Federal Constitution has been adopted within a reasonable time, is not subject
to review by the court.

The net result was that the judgment of the Supreme Court of Kansas was affirmed but on the
grounds stated in the United States Supreme Court’s decision. The nine justices were aligned in
three groups. Justices Roberts, Black, Frankfurter and Douglas opined that the petitioners had no
personality to bring the petition and that all the questions raised are political and nonjusticiable.
Justices Butler and McReynolds opined that all the questions were justiciable; that the Court had
jurisdiction of all such questions, and that the petition should have been granted and the decision
of the Supreme Court of Kansas reversed on the ground that the proposal to amend had died of
old age. The Chief Justice, Mr. Justice Stone and Justice Reed regarded some of the issues as
political and nonjusticiable, passed by the question of the authority of the Lieutenant Governor to
cast a deciding vote, on the ground that the Court was equally divided, and took jurisdiction of
the rest of the questions.

The sole common ground between Ml. Justice Butler and Mr. Justice McReynolds, on the one
hand, and the Chief Justice, Mr. Justice Stone and Mr. Justice Reed, on the other, was on the
question of jurisdiction; on the result to be reached, these two groups were divided. The
agreement between Justices Roberts, Black, Frankfurter and Douglas, on the one hand, and the
Chief Justice and Justices Stone and Reed, on the other, was on the result and on that part of the
decision which declares certain questions political and nonjusticiable.

As the annotator in American Law Reports observes, the foregoing four opinions "show
interestingly divergent but confusing positions of the Justices on the issues discussed." It cites an
article in 48 Yale Law Journal, 1466, amusing entitled "Sawing a Justice in Half," which, in the
light of the divergencies in the opinions rendered, aptly queries "whether the proper procedure
for the Supreme Court could not have been to reverse the judgment below and direct dismissal of
the suit for want of jurisdiction.’’ It says that these divergencies and line-ups of the justices
"leave power to dictate the result and the grounds upon which the decision should be rested with
the four justices who concurred in Mr. Justice Black’s opinion." Referring to the failure of the
Court to decide the question of the right of the Lieutenant Governor to vote, the article points out
that from the opinions rendered the "equally divided" court would seem under any circumstances
to be an equal division of an odd number of justices, and ask "What really did happen? Did a
justice refuse to vote only this issue? And;f he did, was it because he could not make up his
mind, or is it possible to saw a justice vertical in half during the conference and have him walk
away whole?" But speaking in a more serious vein, the commentator says that decision of the
issue could not be avoided on grounds of irrelevance, since if the court had jurisdiction of the
case, decision of the issue in favor of the petitioners would have required reversal of the
judgment below regardless of the disposal of the other issues.

From this analysis the conclusion is that the concurring opinions should be considered as laying
down the rule of the case.

The respondent’s other chief reliance is on the contention that a duly authenticated bill or
resolution imports absolute verity and is binding on the courts. This is the rule prevailing in
England. In the United States, "In point of numbers, the jurisdictions are divided almost equally
and con the general principle (of these, two or three have changed from their original position),
two or three adopted a special variety of view (as in Illinois), three or four are not clear, and one
or two have not yet made their decisions." (IV Wigmore on Evidence, 3d Edition, 685, footnote.)
It is important to bear in mind, in this connection, that the United States Supreme Court is on the
side of those which favor the rule. (Harwood v. Wentworth, 40 Law. ed., 1069; Lyon v. Wood,
38 Law. ed., 854; Field v. Clark, 36 Law. ed., 294.)

If for no other reason than that it conforms to the expressed policy of our law making body, we
choose to follow the rule. Section 313 of the old Code of Civil Procedure, as amended by Act
No. 2210, provides: "Official documents may be proved as follows: . . . (2) the proceedings of
the Philippine Commission, or of any legislatives body that may be provided for in the Philippine
Islands, or of Congress, by the journals of those bodies or of either house thereof, or by
published statutes or resolutions, or by copies certified by the clerk of secretary, or printed by
their order; Provided, That in the case of Acts of the Philippine Commission or the Philippine
Legislature, when there is an existence of a copy signed by the presiding officers and secretaries
of said bodies, it shall be conclusive proof of the provisions of such Acts and of the due
enactment thereof." cralaw virtua1aw library

But there is more than statutory sanction for conclusiveness.

This topic has been the subject of a great number of decisions and commentaries written with
evident vehemence. Arguments for and against the rule have been extensive and exhaustive. It
would be presumptuous on our part to pretend to add more, even if we could, to what has already
been said. With such vast mass of cases to guide our ,judgment and discretion, our labor is
reduced to an intelligent selection and borrowing of materials and arguments under the criterion
of adaptability to a sound public policy.

The reasons adduced in support of enrollment as contrasted with those which opposed it are, in
our opinion, almost decisive. Some of these reasons are summarized in 50 American
Jurisprudence, section 150 as follows: jgc:chanrobles.com.ph

"Sec. 150. Reasons for Conclusiveness. — It has been declared that the rule against going behind
the enrolled bill is required by the respect due to a coequal and independent department of the
govern, and it would be an inquisition into the conduct of the members of the legislature, a very
delicate power, the frequent exercise of which must lead to endless confusion in the
administration of the law. The rule is also one of convenience, because courts could not rely on
the published session laws, but would be required to look beyond these to the journals of the
legislature and often to any printed bills and amendments which might be found after the
adjournment of the legislature. Otherwise, after relying on the prima facie evidence of the
enrolled bills, authenticated as exacted by the Constitution, for years, it might be ascertained
from the journals that an act theretofore enforced had never become a law. In this respect, it has
been declared that there is quite enough uncertainty as to what the law is without saying that no
one may be certain that an act of the legislature has become such until the issue has been
determined by some court whose decision might not be regarded as conclusive in an action
between the parties." cralaw virtua1aw library
From other decisions, selected and quoted in IV Wigmore on Evidence, 696, 697, we extract
these passages: jgc:chanrobles.com.ph

"I think the rule thus adopted accords with public policy. Indeed, in my estimation, few things
would be more mischievous than the introduction of the opposite rule. . . . The rule contended for
is that the Court should look at the journals of the Legislature to ascertain whether the copy of
the act attested and filed with the Secretary of State conforms in its contents with the statements
of such journals. This proposition means, if it has any legal value whatever, that, in the event of a
material discrepancy between the journal and the enrolled copy, the former is to be taken as the
standard of veracity and the act is to be rejected. This is the test which is to be applied not only to
the statutes now before the Court, but to all statutes; not only to laws which have been recently
passed, but to laws the most ancient. To my mind, nothing can be more certain than that the
acceptance of this doctrine by the Court would unsettle the entire statute law of the State. We
have before us some evidence of the little reliability of these legislative journal . . . Can any one
deny that if the laws of the State are to be tested by a comparison with these journals, so
imperfect, so unauthenticated, the stability of all written law will be shaken to its very
foundations? . . . We are to remember the danger, under the prevalence of such a doctrine, to be
apprehended from the intentional corruption of evidences of this character. It is scarcely too
much to say that the legal existence of almost every legislative act would be at the mercy of all
persons having access to these journals. . . . ([1866], Beasley, C.J., in Pangborn v. Young, 32 N.
J. L., 29, 34.)

"But it is argued that if the authenticated roll is conclusive upon the Courts, then less than a
quorum of each House may by the aid of corrupt presiding officers impose laws upon the State in
defiance of the inhibition of the Constitution. It must be admitted that the consequence stated
would be possible Public authority and politic power must of necessity be confided to officers,
who being human may violate the trusts reposed in them. This perhaps cannot be avoided
absolutely. But it applies also to all human agencies. It is not fit that the Judiciary should claim
for itself a purity beyond all others; nor has it been able at all times with truth to say that its high
places have not been disgraced. The framers of our government have not constituted it with
faculties to supervise coordinate departments and correct or prevent abuses of their authority. It
cannot authenticate a statute; that power does not belong to it; nor can it keep a legislative
journal." (1869, Frazer, J., in Evans T S. Browne, 30 Ind., 514, 524.)

Professor Wigmore in his work on Evidence considered a classic, and described by one who
himself is a noted jurist, author, and scholar, as "a permanent contribution to American law" and
having "put the matured nineteenth century law in form to be used in a new era of growth" —
unequivocally identifies himself with those who believe in the soundness of the rule. The
distinguished professor, in answer to the argument of Constitutional necessity, i. e., the
impossibility of securing in any other way the enforcement of constitutional restrictions on
legislation action, says: jgc:chanrobles.com.ph

"(1) In the first place, note that it is impossible of consistent application. If, as it is urged, the
Judiciary are bound to enforce the constitutional requirements of three readings, a two-thirds
vote, and the like, and if therefore an act must be declared no law which in fact was not read
three times or voted upon by two-thirds, this duty is a duty to determine according to the actual
facts of the readings and the votes. Now the journals may not represent the actual facts. That
duty cannot allow us to stop with the journals, if it can be shown beyond doubt that the facts
were otherwise than therein represented. The duty to uphold a law which in fact was
constitutionally voted upon is quite as strong as the duty to repudiate an act unconstitutionally
voted upon. The Court will be going as far wrong in repudiating an act based on proper votes
falsified in the journal as it will be in upholding an act based on improper votes falsified in the
enrollment. This supposed duty, in short, is to see that the constitutional facts did exist; and it
cannot stop short with the journals. Yet, singularly enough, it is unanimously conceded that an
examination into facts as provable by the testimony of members present is not allowable. If to
support this it be said that such an inquiry would be too uncertain and impracticable, then it is
answered that this concedes the supposed constitutional duty not to be inexorable, after all; for if
the duty to get at the facts is a real and inevitable one, it must be a duty to get at them at any cost;
and if it is merely a duty that is limited by policy and practical convenience, then the argument
changes into the second one above, namely, how far it is feasible to push the inquiry with regard
to policy and practical convenience; and from this point of view there can be but one answer.

"(2) In the second place, the fact that the scruple of constitutional duty is treated thus
inconsistently and pushed only up to a certain point suggests that it perhaps is based on some
fallacious assumption whose defect is exposed only by carrying it to its logical consequences.
Such indeed seems to be the case. It rests on the fallacious notion that every constitutional
provision is ’per se’ capable of being enforced through the Judiciary and must be safeguarded by
the Judiciary because it can be in no other way. Yet there is certainly a large field of
constitutional provision which does not come before the Judiciary for enforcement, and may
remain unenforced without any possibility or judicial remedy. It is not necessary to invoke in
illustration such provisions as a clause requiring the Governor to appoint a certain officer, or the
Legislature to pass a law for a certain purpose; here the Constitute on may remain unexecuted by
the failure of Governor or Legislature to act, and yet the Judiciary cannot safeguard and enforce
the constitutional duty. A clearer illustration may be had by imagining the Constitution to require
the Executive to appoint an officer or to call out the militia whenever to the best of his belief a
certain state of facts exists; suppose he appoints or calls out when in truth he has no such belief;
can the Judiciary attempt to enforce the Constitution by inquiring into his belief? Or suppose the
Constitution to enjoin on the Legislators to pass a law upon a certain subject whenever in their
belief certain conditions exist; can the Judiciary declare the law void by inquiring and
ascertaining that the Legislature, or its majority, did not have such a belief? Or suppose the
Constitution commands the Judiciary to decide a case only after consulting a soothsayer, and in a
given case the Judiciary do not consult one; what is to be done?

"These instances illustrate a general situation in which the judicial function of applying and
enforcing the Constitution ceases to operate. That situation exists where the Constitution enjoins
duties which affect the motives and judgment of a particular independent department of
government, — Legislature, Executive, and Judiciary. Such duties are simply beyond
enforcement by any other department if the one charged fails to perform them. The Constitution
may provide that no legislator shall take a bribe, but an act would not be treated as void because
the majority had been bribed. So far as the Constitution attempts to lay injunctions in matters
leading up to and motivating the action of E3 department, injunctions must be left to the
conscience of that department to obey or disobey. Now the act of the Legislature as a whole is
for this purpose of the same nature as the vote of a single legislator. The Constitution may
expressly enjoin each legislator not to vote until he has carefully thought over the matter of
legislation; so, too, it may expressly enjoin the whole Legislature not to act finally until it has
three times heard the proposition read aloud. It is for the Legislature alone, in the latter case as
well as in the former, to take notice of this in junction; and it is no more the function of the
Judiciary in the one case than in the other to try to keep the Legislature to its duty:chanrob1es virtual 1aw library

x        x       x

"The truth is that many have been carried away with the righteous desire to check at any cost the
misdoings of Legislatures. They have set such store by the Judiciary for this purpose that they
have almost made them a second and higher Legislature. But they aim in the wrong direction.
Instead of trusting a faithful Judiciary to check an inefficient Legislature, they should turn to
improve the Legislature. The sensible solution is not to patch and mend casual errors by assailing
the Judiciary to violate legal principle and to do impossibilities with the Constitution; but to
represent ourselves with competent, careful, and honest legislators, the work of whose hands on
the statute-roll may come to reflect credit upon the name of popular government." (4 Wigmore
on Evidence, 699-702.)

The petitioners contend that the enrolled bill rule has not found acceptance in this jurisdiction,
citing the case of United States v. Pons (34 Phil., 729). It is argued that this Court examined the
journal in that case to find out whether or not the contention of the appellant was right. We think
the petitioners are in error.

It will be seen upon examination of section 313 of the Code of Civil Procedure, as amended by
Act No. 2210, that, roughly, it provides two methods of proving legislative proceedings: (1) by
the journals, or by published statutes or resolutions, or by copies certified by the clerk or
secretary or printed by their order; and (2) in case of acts of the legislature, by a copy signed by
the presiding Officers and secretaries thereof, which shall be conclusive proof of the provisions
of such Acts and of the due enactment thereof.

The Court looked into the journals in United States v. Pons because, in all probability, those
were the documents offered in evidence. It does not appear that a duly authenticated copy of the
Act was in existence or was placed before the Court; and it has not been shown that if that had
been done, this Court would not have held the copy conclusive proof of the due enactment of the
law. It is to be remembered that the Court expressly stated that it "passed over the question" of
whether the enrolled bill was conclusive as to its contents and the mode of its passage.

Even if both the journals and an authenticated copy of the Act had been presented, the disposal
of the issue by the Court on the basis of the journals does not imply rejection of the enrollment
theory, for, as already stated, the due enactment of a law may be proved in either of the two ways
specified in section 313 of Act No. 190 as amended. This Court found in the journals no signs of
irregularity in the passage of the law and did not bother itself with considering the effects of an
authenticated copy if one had been introduced. It did not do what the opponents of the rule of
conclusiveness advocate, namely, look into the journals behind the enrolled copy in order to
determine the correctness of the latter, and rule such copy out if the two, the journals and the
copy, be found in conflict with each other. No discrepancy appears to have been noted between
the two documents and the court did not say or so much as give to understand that if discrepancy
existed it would give greater weight to the journals, disregarding the explicit provision that duly
certified copies "shall be conclusive proof of the provisions of such Acts and of the due
enactment thereof." cralaw virtua1aw library

In view of the foregoing considerations, we deem it unnecessary to decide the question of

whether the senators and representatives who were ignored in the computation of the necessary
three-fourths vote were members of Congress within the meaning of section 1 of Article XV of
the Philippine Constitution.

The petition is dismissed without costs.

 G.R. No. L-28196      November 9, 1967

RAMON A. GONZALES, Petitioner, vs. COMMISSION ON ELECTIONS, DIRECTOR

OF PRINTING and AUDITOR GENERAL, Respondents.

CONCEPCION, C.J.: chanrobles virtual law library

G. R. No. L-28196 is an original action for prohibition, with preliminary injunction. chanroblesvirtualawlibrary chanrobles virtual law library

Petitioner therein prays for judgment: chanrobles virtual law library

1) Restraining: (a) the Commission on Elections from enforcing Republic Act No. 4913, or from
performing any act that will result in the holding of the plebiscite for the ratification of the
constitutional amendments proposed in Joint Resolutions Nos. 1 and 3 of the two Houses of
Congress of the Philippines, approved on March 16, 1967; (b) the Director of Printing from
printing ballots, pursuant to said Act and Resolutions; and (c) the Auditor General from passing
in audit any disbursement from the appropriation of funds made in said Republic Act No. 4913;
and chanrobles virtual law library

2) declaring said Act unconstitutional and void. chanroblesvirtualawlibrary chanrobles virtual law library

The main facts are not disputed. On March 16, 1967, the Senate and the House of
Representatives passed the following resolutions: chanrobles virtual law library

1. R. B. H. (Resolution of Both Houses) No. 1, proposing that Section 5, Article VI, of the
Constitution of the Philippines, be amended so as to increase the membership of the House of
Representatives from a maximum of 120, as provided in the present Constitution, to a maximum
of 180, to be apportioned among the several provinces as nearly as may be according to the
number of their respective inhabitants, although each province shall have, at least, one (1)
member; chanrobles virtual law library

2. R. B. H. No. 2, calling a convention to propose amendments to said Constitution, the

convention to be composed of two (2) elective delegates from each representative district, to be
"elected in the general elections to be held on the second Tuesday of November, 1971;" and chanrobles virtual law library

3. R. B. H. No. 3, proposing that Section 16, Article VI, of the same Constitution, be amended so
as to authorize Senators and members of the House of Representatives to become delegates to
the aforementioned constitutional convention, without forfeiting their respective seats in
Congress. chanroblesvirtualawlibrary chanrobles virtual law library

Subsequently, Congress passed a bill, which, upon approval by the President, on June 17, 1967,
became Republic Act No. 4913, providing that the amendments to the Constitution proposed in
the aforementioned Resolutions No. 1 and 3 be submitted, for approval by the people, at the
general elections which shall be held on November 14, 1967. chanroblesvirtualawlibrary chanrobles virtual law library

The petition in L-28196 was filed on October 21, 1967. At the hearing thereof, on October 28,
1967, the Solicitor General appeared on behalf of respondents. Moreover, Atty. Juan T. David
and counsel for the Philippine Constitution Association - hereinafter referred to as the
PHILCONSA - were allowed to argue as amici curiae. Said counsel for the PHILCONSA, Dr.
Salvador Araneta, likewise prayed that the decision in this case be deferred until after a
substantially identical case brought by said organization before the Commission on Elections,1
which was expected to decide it any time, and whose decision would, in all probability, be
appealed to this Court - had been submitted thereto for final determination, for a joint decision
on the identical issues raised in both cases. In fact, on October 31, 1967, the PHILCONSA filed
with this Court the petition in G. R. No. L-28224, for review by certiorari of the resolution of the
Commission on Elections2 dismissing the petition therein. The two (2) cases were deemed
submitted for decision on November 8, 1967, upon the filing of the answer of respondent, the
memorandum of the petitioner and the reply memorandum of respondent in L-28224. chanroblesvirtualawlibrary chanrobles virtual law library

Ramon A. Gonzales, the petitioner in L-28196, is admittedly a Filipino citizen, a taxpayer, and a
voter. He claims to have instituted case L-28196 as a class unit, for and in behalf of all citizens,
taxpayers, and voters similarly situated. Although respondents and the Solicitor General have
filed an answer denying the truth of this allegation, upon the ground that they have no knowledge
or information to form a belief as to the truth thereof, such denial would appear to be a
perfunctory one. In fact, at the hearing of case L-28196, the Solicitor General expressed himself
in favor of a judicial determination of the merits of the issued raised in said case. cha

JURISDICTION chanrobles virtual law library

As early as Angara vs. Electoral Commission,4 this Court - speaking through one of the leading
members of the Constitutional Convention and a respected professor of Constitutional Law, Dr.
Jose P. Laurel - declared that "the judicial department is the only constitutional organ which can
be called upon to determine the proper allocation of powers between the several departments and
among the integral or constituent units thereof." It is true that in Mabanag vs. Lopez Vito,5 this
Court characterizing the issue submitted thereto as a political one, declined to pass upon the
question whether or not a given number of votes cast in Congress in favor of a proposed
amendment to the Constitution - which was being submitted to the people for ratification -
satisfied the three-fourths vote requirement of the fundamental law. The force of this precedent
has been weakened, however, by Suanes vs. Chief Accountant of the Senate,6 Avelino vs.
Cuenco,7 Tañada vs. Cuenco,8 and Macias vs. Commission on Elections.9 In the first, we held
that the officers and employees of the Senate Electoral Tribunal are under its supervision and
control, not of that of the Senate President, as claimed by the latter; in the second, this Court
proceeded to determine the number of Senators necessary for a quorum in the Senate; in the
third, we nullified the election, by Senators belonging to the party having the largest number of
votes in said chamber, purporting to act on behalf of the party having the second largest number
of votes therein, of two (2) Senators belonging to the first party, as members, for the second
party, of the, Senate Electoral Tribunal; and in the fourth, we declared unconstitutional an act of
Congress purporting to apportion the representative districts for the House of Representatives,
upon the ground that the apportionment had not been made as may be possible according to the
number of inhabitants of each province. Thus we rejected the theory, advanced in these four (4)
cases, that the issues therein raised were political questions the determination of which is beyond
judicial review. chanroblesvirtualawlibrary chanrobles virtual law library

Indeed, the power to amend the Constitution or to propose amendments thereto is not included in
the general grant of legislative powers to Congress.10 It is part of the inherent powers of the
people - as the repository of sovereignty in a republican state, such as ours11 - to make, and,
hence, to amend their own Fundamental Law. Congress may propose amendments to the
Constitution merely because the same explicitly grants such power.12 Hence, when exercising the
same, it is said that Senators and Members of the House of Representatives act, not as members
of Congress, but as component elements of a constituent assembly. When acting as such, the
members of Congress derive their authority from the Constitution, unlike the people, when
performing the same function,13 for their authority does not emanate from the Constitution - they
are the very source of all powers of government, including the Constitution itself . chanroblesvirtualawlibrary chanrobles virtual law library

Since, when proposing, as a constituent assembly, amendments to the Constitution, the members
of Congress derive their authority from the Fundamental Law, it follows, necessarily, that they
do not have the final say on whether or not their acts are within or beyond constitutional limits.
Otherwise, they could brush aside and set the same at naught, contrary to the basic tenet that ours
is a government of laws, not of men, and to the rigid nature of our Constitution. Such rigidity is
stressed by the fact that, the Constitution expressly confers upon the Supreme Court,14 the power
to declare a treaty unconstitutional,15 despite the eminently political character of treaty-making
power. chanroblesvirtualawlibrary chanrobles virtual law library

In short, the issue whether or not a Resolution of Congress - acting as a constituent assembly -
violates the Constitution essentially justiciable, not political, and, hence, subject to judicial
review, and, to the extent that this view may be inconsistent with the stand taken in Mabanag vs.
Lopez Vito,16 the latter should be deemed modified accordingly. The Members of the Court are
unanimous on this point.

THE MERITS chanrobles virtual law library

Section 1 of Article XV of the Constitution, as amended, reads:

The Congress in joint session assembled by a vote of three-fourths of all the Members of the
Senate and of the House of Representatives voting separately, may propose amendments to this
Constitution or call a convention for that purpose. Such amendments shall be valid as part of this
Constitution when approved by a majority of the votes cast at an election at which the
amendments are submitted to the people for their ratification.
Pursuant to this provision, amendments to the Constitution may be proposed, either by Congress,
or by a convention called by Congress for that purpose. In either case, the vote of "three-fourths
of all the members of the Senate and of the House of Representatives voting separately" is
necessary. And, "such amendments shall be valid as part of" the "Constitution when approved by
a majority of the votes cast at an election at which the amendments are submitted to the people
for their ratification." chanrobles virtual law library

In the cases at bar, it is conceded that the R. B. H. Nos. 1 and 3 have been approved by a vote of
three-fourths of all the members of the Senate and of the House of Representatives voting
separately. This, notwithstanding, it is urged that said resolutions are null and void because: chanrobles virtual law library

1. The Members of Congress, which approved the proposed amendments, as well as the
resolution calling a convention to propose amendments, are, at best, de facto Congressmen; chanrobles virtual law library

2. Congress may adopt either one of two alternatives propose - amendments or call a convention
therefore but may not avail of both - that is to say, propose amendment and call a convention - at
the same time; chanrobles virtual law library

3. The election, in which proposals for amendment to the Constitution shall be submitted for
ratification, must be a special election, not a general election, in which officers of the national
and local governments - such as the elections scheduled to be held on November 14, 1967 - will
be chosen; and chanrobles virtual law library

4. The spirit of the Constitution demands that the election, in which proposals for amendment
shall be submitted to the people for ratification, must be held under such conditions - which,
allegedly, do not exist - as to give the people a reasonable opportunity to have a fair grasp of the
nature and implications of said amendments. chanroblesvirtualawlibrary chanrobles virtual law library

Legality of Congress and Legal Status of the Congressmen chanrobles virtual law library

The first objection is based upon Section 5, Article VI, of the Constitution, which provides:

The House of Representatives shall be composed of not more than one hundred and twenty
Members who shall be apportioned among the several provinces as nearly as may be according
to the number of their respective inhabitants, but each province shall have at least one Member.
The Congress shall by law make an apportionment within three years after the return of every
enumeration, and not otherwise. Until such apportionment shall have been made, the House of
Representatives shall have the same number of Members as that fixed by law for the National
Assembly, who shall be elected by the qualified electors from the present Assembly districts.
Each representative district shall comprise, as far as practicable, contiguous and compact
territory.

It is urged that the last enumeration or census took place in 1960; that, no apportionment having
been made within three (3) years thereafter, the Congress of the Philippines and/or the election of
its Members became illegal; that Congress and its Members, likewise, became a de facto
Congress and/or de facto congressmen, respectively; and that, consequently, the disputed
Resolutions, proposing amendments to the Constitution, as well as Republic Act No. 4913, are
null and void.chanroblesvirtualawlibrary chanrobles virtual law library

It is not true, however, that Congress has not made an apportionment within three years after the
enumeration or census made in 1960. It did actually pass a bill, which became Republic Act No.
3040,17 purporting to make said apportionment. This Act was, however, declared
unconstitutional, upon the ground that the apportionment therein undertaken had not been made
according to the number of inhabitants of the different provinces of the Philippines.18 chanrobles virtual law library

Moreover, we are unable to agree with the theory that, in view of the failure of Congress to make
a valid apportionment within the period stated in the Constitution, Congress became an
"unconstitutional Congress" and that, in consequence thereof, the Members of its House of
Representatives are de facto officers. The major premise of this process of reasoning is that the
constitutional provision on "apportionment within three years after the return of every
enumeration, and not otherwise," is mandatory. The fact that Congress is under legal obligation
to make said apportionment does not justify, however, the conclusion that failure to comply with
such obligation rendered Congress illegal or unconstitutional, or that its Members have become
de facto officers. chanroblesvirtualawlibrary chanrobles virtual law library

It is conceded that, since the adoption of the Constitution in 1935, Congress has not made a valid
apportionment as required in said fundamental law. The effect of this omission has been
envisioned in the Constitution, pursuant to which:

. . . Until such apportionment shall have been made, the House of Representatives shall have the
same number of Members as that fixed by law for the National Assembly, who shall be elected
by the qualified electors from the present Assembly districts. . . . .

The provision does not support the view that, upon the expiration of the period to make the
apportionment, a Congress which fails to make it is dissolved or becomes illegal. On the
contrary, it implies necessarily that Congress shall continue to function with the representative
districts existing at the time of the expiration of said period. chanroblesvirtualawlibrary chanrobles virtual law library

It is argued that the above-quoted provision refers only to the elections held in 1935. This theory
assumes that an apportionment had to be made necessarily before the first elections to be held
after the inauguration of the Commonwealth of the Philippines, or in 1938.19 The assumption, is,
however, unwarranted, for there had been no enumeration in 1935, and nobody could foretell
when it would be made. Those who drafted and adopted the Constitution in 1935 could be
certain, therefore, that the three-year period, after the earliest possible enumeration, would expire
after the elections in 1938. chanroblesvirtualawlibrary chanrobles virtual law library

What is more, considering that several provisions of the Constitution, particularly those on the
legislative department, were amended in 1940, by establishing a bicameral Congress, those who
drafted and adopted said amendment, incorporating therein the provision of the original
Constitution regarding the apportionment of the districts for representatives, must have known
that the three-year period therefor would expire after the elections scheduled to be held and
actually held in 1941. chanrobles virtual law library
Thus, the events contemporaneous with the framing and ratification of the original Constitution
in 1935 and of the amendment thereof in 1940 strongly indicate that the provision concerning
said apportionment and the effect of the failure to make it were expected to be applied to
conditions obtaining after the elections in 1935 and 1938, and even after subsequent elections.
virtual law library
chanroblesvirtualawlibrary chanrobles

Then again, since the report of the Director of the Census on the last enumeration was submitted
to the President on November 30, 1960, it follows that the three-year period to make the
apportionment did not expire until 1963, or after the Presidential elections in 1961. There can be
no question, therefore, that the Senate and the House of Representatives organized or constituted
on December 30, 1961, were de jure bodies, and that the Members thereof were de jure officers.
Pursuant to the theory of petitioners herein, upon expiration of said period of three years, or late
in 1963, Congress became illegal and its Members, or at least, those of the House of
Representatives, became illegal holder of their respective offices, and were de facto officers. chanroblesvirtualawlibrary chanrobles virtual law library

Petitioners do not allege that the expiration of said three-year period without a reapportionment,
had the effect of abrogating or repealing the legal provision creating Congress, or, at least, the
House of Representatives, and are not aware of any rule or principle of law that would warrant
such conclusion. Neither do they allege that the term of office of the members of said House
automatically expired or that they ipso facto forfeited their seats in Congress, upon the lapse of
said period for reapportionment. In fact, neither our political law, nor our law on public officers,
in particular, supports the view that failure to discharge a mandatory duty, whatever it may be,
would automatically result in the forfeiture of an office, in the absence of a statute to this
effect. chanroblesvirtualawlibrary chanrobles virtual law library

Similarly, it would seem obvious that the provision of our Election Law relative to the election
of Members of Congress in 1965 were not repealed in consequence of the failure of said body to
make an apportionment within three (3) years after the census of 1960. Inasmuch as the general
elections in 1965 were presumably held in conformity with said Election Law, and the legal
provisions creating Congress - with a House of Representatives composed of members elected
by qualified voters of representative districts as they existed at the time of said elections -
remained in force, we can not see how said Members of the House of Representatives can be
regarded as de facto officers owing to the failure of their predecessors in office to make a
reapportionment within the period aforementioned. chanroblesvirtualawlibrary chanrobles virtual law library

Upon the other hand, the Constitution authorizes the impeachment of the President, the Vice-
President, the Justices of the Supreme Court and the Auditor General for, inter alia, culpable
violation of the Constitution,20 the enforcement of which is, not only their mandatory duty, but
also, their main function. This provision indicates that, despite the violation of such mandatory
duty, the title to their respective offices remains unimpaired, until dismissal or ouster pursuant to
a judgment of conviction rendered in accordance with Article IX of the Constitution. In short, the
loss of office or the extinction of title thereto is not automatic. chanroblesvirtualawlibrary chanrobles virtual law library

Even if we assumed, however, that the present Members of Congress are merely de facto
officers, it would not follow that the contested resolutions and Republic Act No. 4913 are null
and void. In fact, the main reasons for the existence of the de facto doctrine is that public interest
demands that acts of persons holding, under color of title, an office created by a valid statute be,
likewise, deemed valid insofar as the public - as distinguished from the officer in question - is
concerned.21 Indeed, otherwise, those dealing with officers and employees of the Government
would be entitled to demand from them satisfactory proof of their title to the positions they hold,
before dealing with them, or before recognizing their authority or obeying their commands, even
if they should act within the limits of the authority vested in their respective offices, positions or
employments.22 One can imagine this great inconvenience, hardships and evils that would result
in the absence of the de facto doctrine. chanroblesvirtualawlibrary chanrobles virtual law library

As a consequence, the title of a de facto officer cannot be assailed collaterally.23 It may not be
contested except directly, by quo warranto proceedings. Neither may the validity of his acts be
questioned upon the ground that he is merely a de facto officer.24 And the reasons are obvious:
(1) it would be an indirect inquiry into the title to the office; and (2) the acts of a de facto officer,
if within the competence of his office, are valid, insofar as the public is concerned. chanroblesvirtualawlibrary chanrobles virtual law library

It is argued that the foregoing rules do not apply to the cases at bar because the acts therein
involved have not been completed and petitioners herein are not third parties. This pretense is
untenable. It is inconsistent with Tayko vs. Capistrano.25 In that case, one of the parties to a suit
being heard before Judge Capistrano objected to his continuing to hear the case, for the reason
that, meanwhile, he had reached the age of retirement. This Court held that the objection could
not be entertained, because the Judge was at least, a de facto Judge, whose title can not be
assailed collaterally. It should be noted that Tayko was not a third party insofar as the Judge was
concerned. Tayko was one of the parties in the aforementioned suit. Moreover, Judge Capistrano
had not, as yet, finished hearing the case, much less rendered decision therein. No rights had
vested in favor of the parties, in consequence of the acts of said Judge. Yet, Tayko's objection
was overruled. Needless to say, insofar as Congress is concerned, its acts, as regards the
Resolutions herein contested and Republic Act No. 4913, are complete. Congress has nothing
else to do in connection therewith. chanroblesvirtualawlibrary chanrobles virtual law library

The Court is, also, unanimous in holding that the objection under consideration is untenable.

Available Alternatives to Congress

Atty. Juan T. David, as amicus curiae, maintains that Congress may either propose amendments
to the Constitution or call a convention for that purpose, but it can not do both, at the same time.
This theory is based upon the fact that the two (2) alternatives are connected in the Constitution
by the disjunctive "or." Such basis is, however, a weak one, in the absence of other
circumstances - and none has brought to our attention - supporting the conclusion drawn by the
amicus curiae. In fact, the term "or" has, oftentimes, been held to mean "and," or vice-versa,
when the spirit or context of the law warrants it.26 chanrobles virtual law library

It is, also, noteworthy that R. B. H. Nos. 1 and 3 propose amendments to the constitutional
provision on Congress, to be submitted to the people for ratification on November 14, 1967,
whereas R. B. H. No. 2 calls for a convention in 1971, to consider proposals for amendment
to the Constitution, in general. In other words, the subject-matter of R. B. H. No. 2 is
different from that of R B. H. Nos. 1 and 3. Moreover, the amendments proposed under R.
B. H. Nos. 1 and 3, will be submitted for ratification several years before those that may be
proposed by the constitutional convention called in R. B. H. No. 2. Again, although the
three (3) resolutions were passed on the same date, they were taken up and put to a vote
separately, or one after the other. In other words, they were not passed at the same time.
virtual law library
chanroblesvirtualawlibrarychanrobles

In any event, we do not find, either in the Constitution, or in the history thereof anything
that would negate the authority of different Congresses to approve the contested
Resolutions, or of the same Congress to pass the same in, different sessions or different
days of the same congressional session. And, neither has any plausible reason been
advanced to justify the denial of authority to adopt said resolutions on the same day. chanroblesvirtualawlibrarychanrobles virtual law library

Counsel ask: Since Congress has decided to call a constitutional convention to propose
amendments, why not let the whole thing be submitted to said convention, instead of,
likewise, proposing some specific amendments, to be submitted for ratification before said
convention is held? The force of this argument must be conceded. but the same impugns
the wisdom of the action taken by Congress, not its authority to take it. One seeming
purpose thereof to permit Members of Congress to run for election as delegates to the
constitutional convention and participate in the proceedings therein, without forfeiting
their seats in Congress. Whether or not this should be done is a political question, not
subject to review by the courts of justice. chanroblesvirtualawlibrarychanrobles virtual law library

On this question there is no disagreement among the members of the Court.

May Constitutional Amendments Be Submitted for Ratification in a General Election?

Article XV of the Constitution provides:

. . . The Congress in joint session assembled, by a vote of three-fourths of all the Members
of the Senate and of the House of Representatives voting separately, may propose
amendments to this Constitution or call a contention for that purpose. Such amendments
shall be valid as part of this Constitution when approved by a majority of the votes cast at
an election at which the amendments are submitted to the people for their ratification.

There is in this provision nothing to indicate that the "election" therein referred to is a
"special," not a general, election. The circumstance that three previous amendments to the
Constitution had been submitted to the people for ratification in special elections merely
shows that Congress deemed it best to do so under the circumstances then obtaining. It
does not negate its authority to submit proposed amendments for ratification in general
elections. chanroblesvirtualawlibrary chanrobles virtual law library

It would be better, from the viewpoint of a thorough discussion of the proposed

amendments, that the same be submitted to the people's approval independently of the
election of public officials. And there is no denying the fact that an adequate appraisal of
the merits and demerits proposed amendments is likely to be overshadowed by the great
attention usually commanded by the choice of personalities involved in general elections,
particularly when provincial and municipal officials are to be chosen. But, then, these
considerations are addressed to the wisdom of holding a plebiscite simultaneously with the
election of public officer. They do not deny the authority of Congress to choose either
alternative, as implied in the term "election" used, without qualification, in the
abovequoted provision of the Constitution. Such authority becomes even more patent when
we consider: (1) that the term "election," normally refers to the choice or selection of
candidates to public office by popular vote; and (2) that the word used in Article V of the
Constitution, concerning the grant of suffrage to women is, not "election," but
"plebiscite." chanrobles virtual law library

Petitioners maintain that the term "election," as used in Section 1 of Art. XV of the
Constitution, should be construed as meaning a special election. Some members of the
Court even feel that said term ("election") refers to a "plebiscite," without any "election,"
general or special, of public officers. They opine that constitutional amendments are, in
general, if not always, of such important, if not transcendental and vital nature as to
demand that the attention of the people be focused exclusively on the subject-matter
thereof, so that their votes thereon may reflect no more than their intelligent, impartial and
considered view on the merits of the proposed amendments, unimpaired, or, at least,
undiluted by extraneous, if not insidious factors, let alone the partisan political
considerations that are likely to affect the selection of elective officials. chanroblesvirtualawlibrary chanrobles virtual law library

This, certainly, is a situation to be hoped for. It is a goal the attainment of which should be
promoted. The ideal conditions are, however, one thing. The question whether the
Constitution forbids the submission of proposals for amendment to the people except under
such conditions, is another thing. Much as the writer and those who concur in this opinion
admire the contrary view, they find themselves unable to subscribe thereto without, in
effect, reading into the Constitution what they believe is not written thereon and can not
fairly be deduced from the letter thereof, since the spirit of the law should not be a matter
of sheer speculation. chanroblesvirtualawlibrarychanrobles virtual law library

The majority view - although the votes in favor thereof are insufficient to declare Republic
Act No. 4913 unconstitutional - as ably set forth in the opinion penned by Mr. Justice
Sanchez, is, however, otherwise. chanroblesvirtualawlibrarychanrobles virtual law library

Would the Submission now of the Contested Amendments to the People Violate the Spirit of
the Constitution? chanrobles virtual law library

It should be noted that the contested Resolutions were approved on March 16, 1967, so
that, by November 14, 1967, our citizenry shall have had practically eight (8) months to be
informed on the amendments in question. Then again, Section 2 of Republic Act No. 4913
provides:chanrobles virtual law library

(1) that "the amendments shall be published in three consecutive issues of the Official
Gazette, at least twenty days prior to the election;" chanrobles virtual law library

(2) that "a printed copy of the proposed amendments shall be posted in a conspicuous place
in every municipality, city and provincial office building and in every polling place not
later than October 14, 1967," and that said copy "shall remain posted therein until after
the election;"chanrobles virtual law library

(3) that "at least five copies of said amendment shall be kept in each polling place, to be
made available for examination by the qualified electors during election day;" chanrobles virtual law library

(4) that "when practicable, copies in the principal native languages, as may be determined
by the Commission on Elections, shall be kept in each polling place;" chanrobles virtual law library

(5) that "the Commission on Elections shall make available copies of said amendments in
English, Spanish and, whenever practicable, in the principal native languages, for free
distributing:" and chanrobles virtual law library

(6) that the contested Resolutions "shall be printed in full" on the back of the ballots which
shall be used on November 14, 1967. chanroblesvirtualawlibrarychanrobles virtual law library

We are not prepared to say that the foregoing measures are palpably inadequate to comply
with the constitutional requirement that proposals for amendment be "submitted to the
people for their ratification," and that said measures are manifestly insufficient, from a
constitutional viewpoint, to inform the people of the amendment sought to be made. chanroblesvirtualawlibrary chanrobles virtual law library

These were substantially the same means availed of to inform the people of the subject
submitted to them for ratification, from the original Constitution down to the Parity
Amendment. Thus, referring to the original Constitution, Section 1 of Act No. 4200,
provides:

Said Constitution, with the Ordinance appended thereto, shall be published in the Official
Gazette, in English and in Spanish, for three consecutive issues at least fifteen days prior to
said election, and a printed copy of said Constitution, with the Ordinance appended
thereto, shall be posted in a conspicuous place in each municipal and provincial
government office building and in each polling place not later than the twenty-second day
of April, nineteen hundred and thirty-five, and shall remain posted therein continually
until after the termination of the election. At least ten copies of the Constitution with the
Ordinance appended thereto, in English and in Spanish, shall be kept at each polling place
available for examination by the qualified electors during election day. Whenever
practicable, copies in the principal local dialects as may be determined by the Secretary of
the Interior shall also be kept in each polling place.

The provision concerning woman's suffrage is Section 1 of Commonwealth Act No. 34,
reading:

Said Article V of the Constitution shall be published in the Official Gazette, in English and
in Spanish, for three consecutive issues at least fifteen days prior to said election, and the
said Article V shall be posted in a conspicuous place in each municipal and provincial office
building and in each polling place not later than the twenty-second day of April, nineteen
and thirty-seven, and shall remain posted therein continually until after the termination of
the plebiscite. At least ten copies of said Article V of the Constitution, in English and in
Spanish, shall be kept at each polling place available for examination by the qualified
electors during the plebiscite. Whenever practicable, copies in the principal native
languages, as may be determined by the Secretary of the Interior, shall also be kept in each
polling place.

Similarly, Section 2, Commonwealth Act No. 517, referring to the 1940 amendments, is of
the following tenor:

The said amendments shall be published in English and Spanish in three consecutive issues
of the Official Gazette at least twenty days prior to the election. A printed copy thereof
shall be posted in a conspicuous place in every municipal, city, and provincial government
office building and in every polling place not later than May eighteen, nineteen hundred
and forty, and shall remain posted therein until after the election. At least ten copies of said
amendments shall be kept in each polling place to be made available for examination by the
qualified electors during election day. When practicable, copies in the principal native
languages, as may be determined by the Secretary of the Interior, shall also be kept therein.

As regards the Parity Amendment, Section 2 of Republic Act No. 73 is to the effect that:

The said amendment shall be published in English and Spanish in three consecutive issues
of the Official Gazette at least twenty days prior to the election. A printed copy thereof
shall be posted in a conspicuous place in every municipal, city, and provincial government
office building and in every polling place not later than February eleven, nineteen hundred
and forty-seven, and shall remain posted therein until after the election. At least, ten copies
of the said amendment shall be kept in each polling place to be made available for
examination by the qualified electors during election day. When practicable, copies in the
principal native languages, as may be determined by the Commission on Elections, shall
also be kept in each polling place.

The main difference between the present situation and that obtaining in connection with
the former proposals does not arise from the law enacted therefor. The difference springs
from the circumstance that the major political parties had taken sides on previous
amendments to the Constitution - except, perhaps, the woman's suffrage - and,
consequently, debated thereon at some length before the plebiscite took place. Upon the
other hand, said political parties have not seemingly made an issue on the amendments now
being contested and have, accordingly, refrained from discussing the same in the current
political campaign. Such debates or polemics as may have taken place - on a rather limited
scale - on the latest proposals for amendment, have been due principally to the initiative of
a few civic organizations and some militant members of our citizenry who have voiced their
opinion thereon. A legislation cannot, however, be nullified by reason of the failure of
certain sectors of the community to discuss it sufficiently. Its constitutionality or
unconstitutionality depends upon no other factors than those existing at the time of the
enactment thereof, unaffected by the acts or omissions of law enforcing agencies,
particularly those that take place subsequently to the passage or approval of the law. chanroblesvirtualawlibrary chanrobles virtual law library
Referring particularly to the contested proposals for amendment, the sufficiency or
insufficiency, from a constitutional angle, of the submission thereof for ratification to the
people on November 14, 1967, depends - in the view of those who concur in this opinion,
and who, insofar as this phase of the case, constitute the minority - upon whether the
provisions of Republic Act No. 4913 are such as to fairly apprise the people of the gist, the
main idea or the substance of said proposals, which is - under R. B. H. No. 1 - the increase
of the maximum number of seats in the House of Representatives, from 120 to 180, and -
under R. B. H. No. 3 - the authority given to the members of Congress to run for delegates
to the Constitutional Convention and, if elected thereto, to discharge the duties of such
delegates, without forfeiting their seats in Congress. We - who constitute the minority -
believe that Republic Act No. 4913 satisfies such requirement and that said Act is,
accordingly, constitutional. chanroblesvirtualawlibrary chanrobles virtual law library

A considerable portion of the people may not know how over 160 of the proposed
maximum of representative districts are actually apportioned by R. B. H. No. 1 among the
provinces in the Philippines. It is not improbable, however, that they are not interested in
the details of the apportionment, or that a careful reading thereof may tend in their simple
minds, to impair a clear vision thereof. Upon the other hand, those who are more
sophisticated, may enlighten themselves sufficiently by reading the copies of the proposed
amendments posted in public places, the copies kept in the polling places and the text of
contested resolutions, as printed in full on the back of the ballots they will use. chanroblesvirtualawlibrary chanrobles virtual law library

It is, likewise, conceivable that as many people, if not more, may fail to realize or envisage
the effect of R. B. H. No. 3 upon the work of the Constitutional Convention or upon the
future of our Republic. But, then, nobody can foretell such effect with certainty. From our
viewpoint, the provisions of Article XV of the Constitution are satisfied so long as the
electorate knows that R. B. H. No. 3 permits Congressmen to retain their seats as
legislators, even if they should run for and assume the functions of delegates to the
Convention. chanroblesvirtualawlibrarychanrobles virtual law library

We are impressed by the factors considered by our distinguished and esteemed brethren,
who opine otherwise, but, we feel that such factors affect the wisdom of Republic Act No.
4913 and that of R. B. H. Nos. 1 and 3, not the authority of Congress to approve the
same.chanroblesvirtualawlibrary chanrobles virtual law library

The system of checks and balances underlying the judicial power to strike down acts of the
Executive or of Congress transcending the confines set forth in the fundamental laws is not
in derogation of the principle of separation of powers, pursuant to which each department
is supreme within its own sphere. The determination of the conditions under which the
proposed amendments shall be submitted to the people is concededly a matter which falls
within the legislative sphere. We do not believe it has been satisfactorily shown that
Congress has exceeded the limits thereof in enacting Republic Act No. 4913. Presumably, it
could have done something better to enlighten the people on the subject-matter thereof.
But, then, no law is perfect. No product of human endeavor is beyond improvement.
Otherwise, no legislation would be constitutional and valid. Six (6) Members of this Court
believe, however, said Act and R. B. H. Nos. 1 and 3 violate the spirit of the
Constitution. chanroblesvirtualawlibrarychanrobles virtual law library

Inasmuch as there are less than eight (8) votes in favor of declaring Republic Act 4913 and
R. B. H. Nos. 1 and 3 unconstitutional and invalid, the petitions in these two (2) cases must
be, as they are hereby, dismiss and the writs therein prayed for denied, without special
pronouncement as to costs. It is so ordered. chanroblesvirtualawlibrary chanrobles virtual law library

Makalintal and Bengzon, J.P., JJ., concur.

Fernando, J., concurs fully with the above opinion, adding a few words on the question of
jurisdiction.

Separate Opinions chanrobles virtual law library

MAKALINTAL, J., concurring: chanrobles virtual law library

I concur in the foregoing opinion of the Chief Justice. I would make some additional
observations in connection with my concurrence. Sections 2 and 4 of Republic Act No. 4913
provide:

Sec. 2. The amendments shall be published in three consecutive issues of the Official
Gazette at least twenty days prior to the election. A printed copy thereof shall be posted in
a conspicuous place in every municipality, city and provincial office building and in every
polling place not later than October fourteen, nineteen hundred and sixty-seven, and shall
remain posted therein until after the election. At least five copies of the said amendments
shall be kept in each polling place to be made available for examination by the qualified
electors during election day. When practicable, copies in the principal native languages, as
may be determined by the Commission on Elections, shall be kept in each polling place.
The Commission on Elections shall make available copies of each amendments in English,
Spanish and, whenever practicable, in the principal native languages, for free distribution.

xxx      xxx      xxx chanrobles virtual law library

Sec. 4. The ballots which shall be used in the election for the approval of said amendments
shall be printed in English and Pilipino and shall be in the size and form prescribed by the
Commission on Elections: Provided, however, That at the back of said ballot there shall be
printed in full Resolutions of both Houses of Congress Numbered One and Three, both
adopted on March sixteen, nineteen hundred and sixty-seven, proposing the amendments:
Provided, further, That the questionnaire appearing on the face of the ballot shall be as
follows:chanrobles virtual law library

Are you in favor of the proposed amendment to Section five of Article VI of our
Constitution printed at the back of this ballot? chanrobles virtual law library
Are you in favor of the proposed amendment to section sixteen of Article VI of our
Constitution printed at the back of this ballot? chanrobles virtual law library

To vote for the approval of the proposed amendments, the voter shall write the word "yes"
or its equivalent in Pilipino or in the local dialect in the blank space after each question; to
vote for the rejection thereof, he shall write the word "No" or its equivalent in Pilipino or
in the local dialect.

I believe that intrinsically, that is, considered in itself and without reference to extraneous
factors and circumstances, the manner prescribed in the aforesaid provisions is sufficient
for the purpose of having the proposed amendments submitted to the people for their
ratification, as enjoined in Section 1, Article XV of the Constitution. I am at a loss to say
what else should have been required by the Act to make it adhere more closely to the
constitutional requirement. Certainly it would have been out of place to provide, for
instance, that government officials and employees should go out and explain the
amendments to the people, or that they should be the subject of any particular means or
form of public discussion. chanroblesvirtualawlibrarychanrobles virtual law library

The objection of some members of the Court to Republic Act No. 4913 seems to me
predicated on the fact that there are so many other issues at stake in the coming general
election that the attention of the electorate, cannot be entirely focused on the proposed
amendments, such that there is a failure to properly submit them for ratification within the
intendment of the Constitution. If that is so, then the defect is not intrinsic in the law but in
its implementation. The same manner of submitting the proposed amendments to the
people for ratification may, in a different setting, be sufficient for the purpose. Yet I cannot
conceive that the constitutionality or unconstitutionality of a law may be made to depend
willy-nilly on factors not inherent in its provisions. For a law to be struck down as
unconstitutional it must be so by reason of some irreconcilable conflict between it and the
Constitution. Otherwise a law may be either valid or invalid, according to circumstances
not found in its provisions, such as the zeal with which they are carried out. To such a
thesis I cannot agree. The criterion would be too broad and relative, and dependent upon
individual opinions that at best are subjective. What one may regard as sufficient
compliance with the requirement of submission to the people, within the context of the
same law, may not be so to another. The question is susceptible of as many views as there
are viewers; and I do not think this Court would be justified in saying that its own view on
the matter is the correct one, to the exclusion of the opinions of others. chanroblesvirtualawlibrarychanrobles virtual law library

On the other hand, I reject the argument that the ratification must necessarily be in a
special election or plebiscite called for that purpose alone. While such procedure is highly
to be preferred, the Constitution speaks simply of "an election at which the amendments
are submitted to the people for their ratification," and I do not subscribe to the restrictive
interpretation that the petitioners would place on this provision, namely, that it means only
a special election.
BENGZON, J.P., J., concurring: chanrobles virtual law library

It is the glory of our institutions that they are founded upon law, that no one can exercise
any authority over the rights and interests of others except pursuant to and in the manner
authorized by law.1 Based upon this principle, petitioners Ramon A. Gonzales and
Philippine Constitution Association (PHILCONSA) come to this Court in separate
petitions. chanroblesvirtualawlibrary chanrobles virtual law library

Petitioner Gonzales, as taxpayer, voter and citizen, and allegedly in representation thru
class suit of all citizens of this country, filed this suit for prohibition with preliminary
injunction to restrain the Commission on Elections, Director of Printing and Auditor
General from implementing and/or complying with Republic Act 4913, assailing said law as
unconstitutional. chanroblesvirtualawlibrarychanrobles virtual law library

Petitioner PHILCONSA, as a civic, non-profit and non-partisan corporation, assails the

constitutionality not only of Republic Act 4913 but also of Resolutions of Both Houses Nos.
1 and 3 of March 16, 1967. chanroblesvirtualawlibrary chanrobles virtual law library

Republic Act 4913, effective June 17, 1967, is an Act submitting to the Filipino people for
approval the amendments to the Constitution of the Philippines proposed by the Congress
of the Philippines in Resolutions of Both Houses Numbered 1 and 3, adopted on March 16,
1967. Said Republic Act fixes the date and manner of the election at which the aforesaid
proposed amendments shall be voted upon by the people, and appropriates funds for said
election. Resolutions of Both Houses Nos. 1 and 3 propose two amendments to the
Constitution: the first, to amend Sec. 5, Art. VI, by increasing the maximum membership
of the House of Representatives from 120 to 180, apportioning 160 of said 180 seats and
eliminating the provision that Congress shall by law make an apportionment within three
years after the return of every enumeration; the second, to amend Sec. 16, Art. VI, by
allowing Senators and Representatives to be delegates to a constitutional convention
without forfeiting their seats. chanroblesvirtualawlibrarychanrobles virtual law library

Since both petitions relate to the proposed amendments, they are considered together
herein.chanroblesvirtualawlibrarychanrobles virtual law library

Specifically and briefly, petitioner Gonzales' objections are as follows: (1) Republic Act
4913 violates Sec. 1, Art. XV of the Constitution, in submitting the proposed amendments
to the Constitution, to the people for approval, at the general election of 1967 instead of at a
special election solely for that purpose; (2) Republic Act 4913 violates Sec. 1, Art. XV of the
Constitution, since it was not passed with the 3/4 vote in joint session required when
Congress proposes amendments to the Constitution, said Republic Act being a step in or
part of the process of proposing amendments to the Constitution; and (3) Republic Act
4913 violates the due process clause of the Constitution (Sec. 1, Subsec. 1, Art. III), in not
requiring that the substance of the proposed amendments be stated on the face of the ballot
or otherwise rendering clear the import of the proposed amendments, such as by stating
the provisions before and after said amendments, instead of printing at the back of the
ballot only the proposed amendments. chanroblesvirtualawlibrarychanrobles virtual law library
Since observance of Constitutional provisions on the procedure for amending the
Constitution is concerned, the issue is cognizable by this Court under its powers to review
an Act of Congress to determine its conformity to the fundamental law. For though the
Constitution leaves Congress free to propose whatever Constitutional amendment it deems
fit, so that the substance or content of said proposed amendment is a matter of policy and
wisdom and thus a political question, the Constitution nevertheless imposes requisites as to
the manner or procedure of proposing such amendments, e.g., the three-fourths vote
requirement. Said procedure or manner, therefore, from being left to the discretion of
Congress, as a matter of policy and wisdom, is fixed by the Constitution. And to that
extent, all questions bearing on whether Congress in proposing amendments followed the
procedure required by the Constitution, is perforce justiciable, it not being a matter of
policy or wisdom. chanroblesvirtualawlibrarychanrobles virtual law library

Turning then to petitioner Gonzales' first objection, Sec. 1, Art. XV clearly does not bear
him on the point. It nowhere requires that the ratification be thru an election solely for that
purpose. It only requires that it be at "an election at which the amendments are submitted
to the people for their ratification." To join it with an election for candidates to public
office, that is, to make it concurrent with such election, does not render it any less an
election at which the proposed amendments are submitted to the people for their
ratification. To prohibition being found in the plain terms of the Constitution, none should
be inferred. Had the framers of requiring Constitution thought of requiring a special
election for the purpose only of the proposed amendments, they could have said so, by
qualifying the phrase with some word such as "special" or "solely" or "exclusively". They
did not.chanroblesvirtualawlibrarychanrobles virtual law library

It is not herein decided that such concurrence of election is wise, or that it would not have
been better to provide for a separate election exclusively for the ratification of the proposed
amendments. The point however is that such separate and exclusive election, even if it may
be better or wiser, which again, is not for this Court to decide, is not included in the
procedure required by the Constitution to amend the same. The function of the Judiciary is
"not to pass upon questions of wisdom, justice or expediency of legislation".2 It is limited to
determining whether the action taken by the Legislative Department has violated the
Constitution or not. On this score, I am of the opinion that it has not. chanroblesvirtualawlibrarychanrobles virtual law library

Petitioner Gonzales' second point is that Republic Act 4913 is deficient for not having been
passed by Congress in joint session by 3/4 vote. chanroblesvirtualawlibrary chanrobles virtual law library

Sec. 1, Art. XV of the Constitution provides:

Sec. 1. The Congress in joint session assembled, by a vote of three-fourths of all the
members of the Senate and of the House of Representatives voting separately, may propose
amendments to this Constitution or call a convention for that purpose. Such amendments
shall be valid as part of this Constitution when approved by a majority of the votes cast at
an election to which the amendments are submitted to the people for their ratification.
Does Republic Act 4913 propose amendments to the Constitution? If by the term "propose
amendment" is meant to determine WHAT said amendment shall be, then Republic Act
4913 does not; Resolutions of Both Houses 1 and 3 already did that. If, on the other hand, it
means, or also means, to provide for how, when, and by what means the amendments shall
be submitted to the people for approval, then it does. chanroblesvirtualawlibrarychanrobles virtual law library

A careful reading of Sec. 1, Art. XV shows that the first sense. is the one intended. Said
Section has two sentences: in the first, it requires the 3/4 voting in joint session, for
Congress to "propose amendments". And then in the second sentence, it provides that
"such amendments . . . shall be submitted to the people for their ratification". This clearly
indicates that by the term "propose amendments" in the first sentence is meant to frame
the substance or the content or the WHAT-element of the amendments; for it is this and
this alone that is submitted to the people for their ratification. The details of when the
election shall be held for approval or rejection of the proposed amendments, or the manner
of holding it, are not submitted for ratification to form part of the Constitution. Stated
differently, the plain language of Section 1, Art. XV, shows that the act of proposing
amendments is distinct from - albeit related to - that of submitting the amendments to the
people for their ratification; and that the 3/4 voting requirement applies only to the first
step, not to the second one.
chanroblesvirtualawlibrary chanrobles virtual law library

It follows that the submission of proposed amendments can be done thru an ordinary
statute passed by Congress. The Constitution does not expressly state by whom the
submission shall be undertaken; the rule is that a power not lodged elsewhere under the
Constitution is deemed to reside with the legislative body, under the doctrine of residuary
powers. Congress therefore validly enacted Republic Act 4913 to fix the details of the date
and manner of submitting the proposed amendments to the people for their ratification.
Since it does not "propose amendments" in the sense referred to by Sec. 1, Art. XV of the
Constitution, but merely provides for how and when the amendments, already proposed,
are going to be voted upon, the same does not need the 3/4 vote in joint session required in
Sec. 1, Art. XV of the Constitution. Furthermore, Republic Act 4913 is an appropriation
measure. Sec. 6 thereof appropriates P1,000,000 for carrying out its provisions. Sec. 18,
Art. VI of the Constitution states that "All appropriation . . . bills shall originate
exclusively in the House of Representatives". Republic Act 4913, therefore, could not have
been validly adopted in a joint session, reinforcing the view that Sec. 1, Art. XV does not
apply to such a measure providing for the holding of the election to ratify the proposed
amendments, which must perforce appropriate funds for its purpose. chanroblesvirtualawlibrarychanrobles virtual law library

Petitioner Gonzales contends, thirdly, that Republic Act 4913 offends against substantive
due process. An examination of the provisions of the law shows no violation of the due
process clause of the Constitution. The publication in the Official Gazette at least 20 days
before the election, the posting of notices in public buildings not later than October 14,
1967, to remain posted until after the elections, the placing of copies of the proposed
amendments in the polling places, aside from printing the same at the back of the ballot,
provide sufficient opportunity to the voters to cast an intelligent vote on the proposal. Due
process refers only to providing fair opportunity; it does not guarantee that the
opportunity given will in fact be availed of; that is the look-out of the voter and the
responsibility of the citizen. As long as fair and reasonable opportunity to be informed is
given, and it is, the due process clause is not infringed. chanroblesvirtualawlibrary chanrobles virtual law library

Non-printing of the provisions to be amended as they now stand, and the printing of the
full proposed amendments at the back of the ballot instead of the substance thereof at the
face of the ballot, do not deprive the voter of fair opportunity to be informed. The present
wording of the Constitution is not being veiled or suppressed from him; he is conclusively
presumed to know them and they are available should he want to check on what he is
conclusively presumed to know. Should the voters choose to remain ignorant of the present
Constitution, the fault does not lie with Congress. For opportunity to familiarize oneself
with the Constitution as it stands has been available thru all these years. Perhaps it would
have been more convenient for the voters if the present wording of the provisions were also
to be printed on the ballot. The same however is a matter of policy. As long as the method
adopted provides sufficiently reasonable chance to intelligently vote on the amendments,
and I think it does in this case, it is not constitutionally defective. chanroblesvirtualawlibrarychanrobles virtual law library

Petitioner Gonzales' other arguments touch on the merits or wisdom of the proposed
amendments. These are for the people in their sovereign capacity to decide, not for this
Court.chanroblesvirtualawlibrarychanrobles virtual law library

Two arguments were further advanced: first, that Congress cannot both call a convention
and propose amendments; second, that the present Congress is a de facto one, since no
apportionment law was adopted within three years from the last census of 1960, so that the
Representatives elected in 1961 are de facto officers only. Not being de jure, they cannot
propose amendments, it is argued. chanroblesvirtualawlibrarychanrobles virtual law library

As to the first point, Sec. 1 of Art. XV states that Congress "may propose amendments or
call a convention for that purpose". The term "or", however, is frequently used as having
the same meaning as "and" particularly in permissive, affirmative sentences so that the
interpretation of the word "or" as "and" in the Constitution in such use will not change its
meaning (Vicksburg S. & P. R. Co. v. Goodenough, 32 So. 404, 411, 108 La, 442). And it
should be pointed out that the resolutions proposing amendments (R.B.H. Nos. 1 and 3) are
different from that calling for a convention (R.B.H. No. 2). Surely, if Congress deems it
better or wise to amend the Constitution before a convention called for is elected, it should
not be fettered from doing so. For our purposes in this case, suffice it to note that the
Constitution does not prohibit it from doing so. chanroblesvirtualawlibrary chanrobles virtual law library

As to the second argument, it is also true that Sec. 5 of Art. VI of the Constitution provides
in part that "The Congress shall by law make an apportionment within three years after
the return of every enumeration, and not otherwise". It however further states in the next
sentence: "Until such apportionment shall have been made, the House of Representatives
shall have the same number of Members as that fixed by law for the National Assembly,
who shall be elected by the qualified electors from the present assembly districts." The
failure of Congress, therefore, to pass a valid redistricting law since the time the above
provision was adopted, does not render the present districting illegal or unconstitutional.
For the Constitution itself provides for its continuance in such case, rendering legal and de
jure the status quo.
chanroblesvirtualawlibrarychanrobles virtual law library

For the above reasons, I vote to uphold the constitutionality of Republic Act 4913, and fully
concur with the opinion of the Chief Justice.

FERNANDO, J., concurring: chanrobles virtual law library

At the outset, we are faced with a question of jurisdiction. The opinion prepared by the
Chief Justice discusses the matter with a fullness that erases doubts and misgivings and
clarifies the applicable principles. A few words may however be added. chanroblesvirtualawlibrarychanrobles virtual law library

We start from the premise that only where it can be shown that the question is to be solved
by public opinion or where the matter has been left by the Constitution to the sole
discretion of any of the political branches, as was so clearly stated by the then Justice
Concepcion in Tañada v. Cuenco,1 may this Court avoid passing on the issue before it.
Whatever may be said about the present question, it is hard to speak with certitude
considering Article XV, that Congress may be entrusted with the full and uncontrolled
discretion on the procedure leading to proposals for an amendment of the Constitution.
library
chanroblesvirtualawlibrarychanrobles virtual law

It may be said however that in Mabanag v. Lopez Vito,2 this Court through Justice Tuason
followed Coleman v. Miller,3 in its holding that certain aspects of the amending process
may be considered political. His opinion quoted with approval the view of Justice Black, to
which three other members of the United States Supreme Court agreed, that the process
itself is political in its entirety, "from submission until an amendment becomes part of the
Constitution, and is not subject to judicial guidance, control or interference at any point."
In a sense that would solve the matter neatly. The judiciary would be spared the at times
arduous and in every case soul-searching process of determining whether the procedure for
amendments required by the Constitution has been followed. chanroblesvirtualawlibrary chanrobles virtual law library

At the same time, without impugning the motives of Congress, which cannot be judicially
inquired into at any rate, it is not beyond the realm of possibility that a failure to observe
the requirements of Article XV would occur. In the event that judicial intervention is
sought, to rely automatically on the theory of political question to avoid passing on such a
matter of delicacy might under certain circumstances be considered, and rightly so, as
nothing less than judicial abdication or surrender. chanroblesvirtualawlibrarychanrobles virtual law library

What appears regrettable is that a major opinion of an esteemed jurist, the late Justice
Tuason, would no longer be controlling. There is comfort in the thought that the view that
then prevailed was itself a product of the times. It could very well be that considering the
circumstances existing in 1947 as well as the particular amendment sought to be
incorporated in the Constitution, the parity rights ordinance, the better part of wisdom in
view of the grave economic situation then confronting the country would be to avoid the
existence of any obstacle to its being submitted for ratification. Moreover, the Republic
being less than a year old, American Supreme Court opinions on constitutional questions
were-invariably accorded uncritical acceptance. Thus the approach followed by Justice
Tuason is not difficult to understand. It may be said that there is less propensity now,
which is all to the good, for this Court to accord that much deference to constitutional
views coming from the quarter. chanroblesvirtualawlibrary chanrobles virtual law library

Nor is this mode of viewing the opinion of Justice Tuason to do injustice to his memory.
For as he stated in another major opinion in Araneta v. Dinglasan,4 in ascertaining the
meaning to be given the Emergency Powers Act,5 one should not ignore what would ensue
if a particular mode of construction were followed. As he so emphatically stated, "We test a
rule by its results."
chanrobles virtual law library

The consequences of a judicial veto on the then proposed amendment on the economic
survival of the country, an erroneous appraisal it turned out later, constituted an effective
argument for its submission. Why not then consider the question political and let the
people decide? That assumption could have been indulged in. It could very well be the
inarticulate major premise. For many it did bear the stamp of judicial statesmanship. chanroblesvirtualawlibrary chanrobles virtual law library

The opinion of Chief Justice Concepcion renders crystal-clear why as of this date and in
the foreseeable future judicial inquiry to assure the utmost compliance with the
constitutional requirement would be a more appropriate response.

SANCHEZ, J., in separate opinion: chanrobles virtual law library

Right at the outset, the writer expresses his deep appreciation to Mr. Justice Calixto O.
Zaldivar and Mr. Justice Fred Ruiz Castro for their invaluable contribution to the
substance and form of the opinion which follows. chanroblesvirtualawlibrarychanrobles virtual law library

Directly under attack in this, a petition for prohibition, is the constitutionality of Republic
Act 4913, approved on June 17, 1967. This Act seeks to implement Resolutions 1 and 3
adopted by the Senate and the House of Representatives on March 16, 1967 with the end in
view of amending vital portions of the Constitution. chanroblesvirtualawlibrary chanrobles virtual law library

Since the problem here presented has its roots in the resolutions aforesaid of both houses of
Congress, it may just as well be that we recite in brief the salient features thereof.
Resolution No. 1 increases the membership of the House of Representatives from 120 to 180
members, and immediately apportions 160 seats. A companion resolution is Resolution No.
3 which permits Senators and Congressmen - without forfeiting their seats in Congress - to
be members of the Constitutional Convention1 to be convened, as provided in another
resolution - Resolution No. 2. Parenthetically, two of these proposed amendments to the
Constitution (Resolutions I and 3) are to be submitted to the people for their ratification
next November 14, 1967. Resolution No. 2 just adverted to calls for a constitutional
convention also to propose amendments to the Constitution. The delegates thereto are to be
elected on the second Tuesday of November 1970; the convention to sit on June 1, 1971;
and the amendments proposed by the convention to be submitted to the people thereafter
for their ratification. chanroblesvirtualawlibrary chanrobles virtual law library

Of importance now are the proposed amendments increasing the number of members of
the House of representatives under Resolution No. 1, and that in Resolution No. 3 which
gives Senators and Congressmen the right to sit as members of the constitutional
convention to be convened on June 1, 1971. Because, these are the two amendments to be
submitted to the people in the general elections soon to be held on November 14, 1967,
upon the provisions of Section 1, Republic Act 4913, which reads:

The amendments to the Constitution of the Philippines proposed by the Congress of the
Philippines in Resolutions of both Houses Numbered One and Three, both adopted on
March sixteen, nineteen hundred and sixty- seven, shall be submitted to the people for
approval at the general election which shall be held on November fourteen, nineteen
hundred and sixty- seven, in accordance with the provisions of this Act.

Republic Act 4913 projects the basic angle of the problem thrust upon us - the manner in
which the amendments proposed by Congress just adverted to be brought to the people's
attention.
chanroblesvirtualawlibrary chanrobles virtual law library

First, to the controlling constitutional precept. In order that proposed amendments to the
Constitution may become effective, Section 1, Article XV thereof commands that such
amendments must be "approved by a majority of the votes cast at an election at which
amendments are submitted to the people for their ratification."2 The accent is on two words
complementing each other, namely, "submitted" and "ratification." chanrobles virtual law library

1. We are forced to take a long hard look at the core of the problem facing us. And this,
because the amendments submitted are transcendental and encompassing. The ceiling of
the number of Congressmen is sought to be elevated from 120 to 180 members; and
Senators and Congressmen may run in constitutional conventions without forfeiting their
seats. These certainly affect the people as a whole. The increase in the number of
Congressmen has its proportional increase in the people's tax burdens. They may not look
at this with favor, what with the constitutional provision (Section 5, Article VI) that
Congress "shall by law make an apportionment", without the necessity of disturbing the
present constitutionally provided number of Congressmen. People in Quezon City, for
instance, may balk at the specific apportionment of the 160 seats set forth in Resolution No.
1, and ask for a Congressman of their own, on the theory of equal representation. And
then, people may question the propriety of permitting the increased 180 Congressmen from
taking part in the forthcoming constitutional convention and future conventions for fear
that they may dominate its proceedings. They may entertain the belief that, if at all,
increase in the number of Congressmen should be a proper topic for deliberation in a
constitutional convention which, anyway, will soon take place. They probably would ask:
Why the hurry? These ponderables require the people's close scrutiny. chanroblesvirtualawlibrary chanrobles virtual law library
2. With these as backdrop, we perforce go into the philosophy behind the constitutional
directive that constitutional amendments be submitted to the people for their
ratification.
chanroblesvirtualawlibrarychanrobles virtual law library

A constitutional amendment is not a temporary expedient. Unlike a statute which may

suffer amendments three or more times in the same year, it is intended to stand the test of
time. It is an expression of the people's sovereign will. chanroblesvirtualawlibrarychanrobles virtual law library

And so, our approach to the problem of the mechanics of submission for ratification of
amendments is that reasoning on the basis of the spirit of the Constitution is just as important
as reasoning by a strict adherence to the phraseology thereof. We underscore this, because it
is within the realm of possibility that a Constitution maybe overhauled. Supposing three-
fourths of the Constitution is to be amended. Or, the proposal is to eliminate the all
important; Bill of Rights in its entirety. We believe it to be beyond debate that in some such
situations the amendments ought to call for a constitutional convention rather than a
legislative proposal. And yet, nothing there is in the books or in the Constitution itself.
which would require such amendments to be adopted by a constitutional convention. And
then, too, the spirit of the supreme enactment, we are sure, forbids that proposals therefor
be initiated by Congress and thereafter presented to the people for their ratification. chanroblesvirtualawlibrarychanrobles virtual law library

In the context just adverted to, we take the view that the words "submitted to the people
for their ratification", if construed in the light of the nature of the Constitution - a
fundamental charter that is legislation direct from the people, an - expression of their
sovereign will - is that it can only be amended by the people expressing themselves
according to the procedure ordained by the Constitution. Therefore, amendments must be
fairly laid before the people for their blessing or spurning. The people are not to be mere
rubber stamps. They are not to vote blindly. They must be afforded ample opportunity to
mull over the original provisions compare them with the proposed amendments, and try to
reach a conclusion as the dictates of their conscience suggest, free from the incubus of
extraneous or possibly in insidious influences. We believe, the word "submitted" can only
mean that the government, within its maximum capabilities, should strain every effort to
inform very citizen of the provisions to be amended, and the proposed amendments and the
meaning, nature and effects thereof. By this, we are not to be understood as saying that, if
one citizen or 100 citizens or 1,000 citizens cannot be reached, then there is no submission
within the meaning of the word as intended by the framers of the Constitution. What the
Constitution in effect directs is that the government, in submitting an amendment for
ratification, should put every instrumentality or agency within its structural framework to
enlighten the people, educate them with respect to their act of ratification or rejection. For,
as we have earlier stated, one thing is submission and another is ratification. There must be
fair submission, intelligent, consent or rejection. If with all these safeguards the people still
approve the amendment no matter how prejudicial it is to them, then so be it. For, the
people decree their own fate. chanroblesvirtualawlibrarychanrobles virtual law library

Aptly had it been said:

. . . The great men who builded the structure of our state in this respect had the mental
vision of a good Constitution voiced by Judge Cooley, who has said "A good Constitution
should beyond the reach of temporary excitement and popular caprice or passion. It is
needed for stability and steadiness; it must yield to the thought of the people; not to the
whim of the people, or the thought evolved the excitement or hot blood, but the sober
second thought, which alone, if the government is to be safe, can be allowed efficiency. . . .
Changes in government are to be feared unless the benefit is certain. As Montaign says: "All
great mutations shake and disorder a state. Good does not necessarily succeed evil; another
evil may succeed and a worse." Am. Law Rev. 1889, p. 3113

3. Tersely put, the issue before us funnels down to this proposition: If the people are not
sufficiently informed of the amendments to be voted upon, to conscientiously deliberate
thereon, to express their will in a genuine manner can it be said that in accordance with the
constitutional mandate, "the amendments are submitted to the people for their
ratification?" Our answer is "No". chanroblesvirtualawlibrarychanrobles virtual law library

We examine Republic Act 4913, approved on June 17, 1967 - the statute that submits to the
people the constitutional amendments proposed by Congress in Resolutions 1 and 3.
Section 2 of the Act provides the manner of propagation of the nature of the amendments
throughout the country. There are five parts in said Section 2, viz:

(1) The amendment shall be published in three consecutive issues of the Official Gazette at
least twenty days prior to the election. chanroblesvirtualawlibrary chanrobles virtual law library

(2) A printed copy thereof shall be posted in a conspicuous place in every municipality, city
and provincial office building and in every polling place not later than October fourteen,
nineteen hundred and sixty-seven, and shall remain posted therein until after the
election.
chanroblesvirtualawlibrary chanrobles virtual law library

(3) At least five copies of the said amendments shall be kept in each polling place to be
made available for examination by the qualified electors during election day. chanroblesvirtualawlibrarychanrobles virtual law library

(4) When practicable, copies in the principal native languages, as may be determined by
the Commission on Elections, shall be kept in each polling place. chanroblesvirtualawlibrary chanrobles virtual law library

(5) The Commission on Elections shall make available copies of said amendments in
English, Spanish and, whenever practicable, in the principal native languages, for free
distribution.

A question that comes to mind is whether the procedure for dissemination of information
regarding the amendments effectively brings the matter to the people. A dissection of the
mechanics yields disturbing thoughts. First, the Official Gazette is not widely read. It does
not reach the barrios. And even if it reaches the barrios, is it available to all? And if it is,
would all under stand English? Second, it should be conceded that many citizens, especially
those in the outlying barrios, do not go to municipal, city and/or provincial office buildings,
except on special occasions like paying taxes or responding to court summonses. And if
they do, will they notice the printed amendments posted on the bulletin board? And if they
do notice, such copy again is in English (sample submitted to this Court by the Solicitor
General) for, anyway, the statute does not require that it be in any other language or
dialect. Third, it would not help any if at least five copies are kept in the polling place for
examination by qualified electors during election day. As petitioner puts it, voting time is
not study time. And then, who can enter the polling place, except those who are about to
vote? Fourth, copies in the principal native languages shall be kept in each polling place.
But this is not, as Section 2 itself implies, in the nature of a command because such copies
shall be kept therein only "when practicable" and "as may be determined by the
Commission on Elections." Even if it be said that these are available before election, a
citizen may not intrude into the school building where the polling places are usually located
without disturbing the school classes being held there. Fifth, it is true that the Comelec is
directed to make available copies of such amendments in English, Spanish or whenever
practicable, in the principal native languages, for free distribution. However, Comelec is
not required to actively distribute them to the people. This is significant as to people in the
provinces, especially those in the far-flung barrios who are completely unmindful of the
discussions that go on now and then in the cities and centers of population on the merits
and demerits of the amendments. Rather, Comelec, in this case, is but a passive agency
which may hold copies available, but which copies may not be distributed at all. Finally, it
is of common knowledge that Comelec has more than its hands full in these pre-election
days. They cannot possibly make extensive distribution. chanroblesvirtualawlibrary chanrobles virtual law library

Voters will soon go to the polls to say "yes" or "no". But even the official sample ballot
submitted to this Court would show that only the amendments are printed at the back. And
this, in pursuance to Republic Act 4913 itself. chanroblesvirtualawlibrary chanrobles virtual law library

Surely enough, the voters do not have the benefit of proper notice of the proposed
amendments thru dissemination by publication in extenso. People do not have at hand the
necessary data on which to base their stand on the merits and demerits of said
amendments. chanroblesvirtualawlibrarychanrobles virtual law library

We, therefore, hold that there is no proper submission of the proposed constitutional
amendments within the meaning and intendment of Section 1, Article XV of the
Constitution.chanroblesvirtualawlibrarychanrobles virtual law library

4. Contemporary history is witness to the fact that during the present election campaign
the focus is on the election of candidates. The constitutional amendments are crowded out.
Candidates on the homestretch, and their leaders as well as the voters, gear their undivided
efforts to the election of officials; the constitutional amendments cut no ice with them. The
truth is that even in the ballot itself, the space accorded to the casting of "yes" or "no" vote
would give one the impression that the constitutional amendments are but a bootstrap to
the electoral ballot. Worse still, the fortunes of many elective officials, on the national and
local levels, are inextricably intertwined with the results of the votes on the plebiscite. In a
clash between votes for a candidate and conscience on the merits and demerits of the
constitutional amendments, we are quite certain that it is the latter that will be dented. chanroblesvirtualawlibrary chanrobles virtual law library
5. That proper submission of amendments to the people to enable them to equally ratify
them properly is the meat of the constitutional requirement, is reflected in the sequence of
uniform past practices. The Constitution had been amended thrice - in 1939, 1940 and
1947. In each case, the amendments were embodied in resolutions adopted by the
Legislature, which thereafter fixed the dates at which the proposed amendments were to be
ratified or rejected. These plebiscites have been referred to either as an "election" or
"general election". At no time, however, was the vote for the amendments of the
Constitution held simultaneously with the election officials, national or local. Even with
regard to the 1947 parity amendment; the record shows that the sole issue was the 1947
parity amendment; and the special elections simultaneously held in only three provinces,
Iloilo, Pangasinan and Bukidnon, were merely incidental thereto. chanroblesvirtualawlibrarychanrobles virtual law library

In the end we say that the people are the last ramparts that guard against indiscriminate
changes in the Constitution that is theirs. Is it too much to ask that reasonable guarantee be
made that in the matter of the alterations of the law of the land, their true voice be heard?
The answer perhaps is best expressed in the following thoughts: "It must be remembered
that the Constitution is the people's enactment. No proposed change can become effective
unless they will it so through the compelling force of need of it and desire for it."4 chanrobles virtual law library

For the reasons given, our vote is that Republic Act 4913 must be stricken down as in
violation of the Constitution.
chanroblesvirtualawlib
 [G.R. No. L-60258. January 31, 1984.]

SAMUEL C. OCCEÑA, Petitioner, v. THE COMMISSION ON ELECTIONS, Respondent.

Samuel Occeña in his own behalf.

The Solicitor General for Respondent.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO FORM ASSOCIATIONS;

SUBJECT TO POLICE POWER OF THE STATE. — The right to form associations or societies
for purposes not contrary to law is neither absolute nor illimitable; it is always subject to the
pervasive and dominant police power of the state and may constitutionally be regulated or
curtailed to serve appropriate and important public interests (Gonzales v. Comelec, 27 SCRA
835; Imbong v. Comelec, 35 SCRA 28). Whether a restriction imposed is constitutionally
permissible or not depends upon the circumstances of each case.

DECISION
PLANA, J.:

This petition for prohibition seeks the declaration as unconstitutional of sections 4 and 22 of
Batas Pambansa Blg. 222, otherwise known as the Barangay Election Act of 1982, insofar as it
prohibits any candidate in the Barangay election of May 17, 1982 "from representing or allowing
himself to be represented as a candidate of any political party . . . or prohibits a political party,
political group, political committee . . . from intervening in the nomination of a candidate in the
barangay election or in the filing of his certificate of candidacy, or giving aid or support directly
or indirectly, material or otherwise, favorable to or against his campaign for election." On this
basis, it is prayed that —
". . . judgment be rendered declaring the 1982 Barangay elections NULL AND VOID ab initio,
for being UNCONSTITUTIONAL, and directing the holding of new barangay elections without
any ban on the involvement of political parties, political committees, political organizations and
other political group." 1

The constitutionality of the prohibition vis-a-vis non-political groups is not challenged.

This Court has considered the Comments of the Solicitor General as an Answer and deemed the
case submitted for decision after the oral arguments on May 5, 1982. 2

The legal provisions in question read as follows: jgc:chanrobles.com.ph

"SEC. 4. Conduct of elections. — The barangay election shall be non-partisan and shall be
conducted in an expeditions and inexpensive manner.

"No person who filed a certificate of candidacy shall represent or allow himself to be represented
as a candidate of any political party or any other organization; and no political party, political
group, political committee, civic, religious, professional or other organization or organized group
of whatever nature shall intervene in his nomination or in the filing of his certificate of candidacy
or give aid or support directly or indirectly, material or otherwise, favorable to or against his
campaign for election: Provided, That this provision shall not apply to the members of the family
of a candidate within the fourth civil degree of consanguinity or affinity nor to the personal
campaign staff of the candidate which shall not be more than one for every one hundred
registered voters in his barangay: Provided, further, That without prejudice to any liability that
may be incurred, no permit to hold a public meeting shall be denied on the ground that the
provisions of this paragraph may or will be violated.

"Nothing in this section, however, shall be construed as in any manner affecting or constituting
an impairment of the freedom of individuals to support or oppose any candidate for any barangay
office.

"SEC. 22. Penalties. — Violations of this Act shall constitute prohibited acts under Sec. 178 of
the 1978 Election Code and shall be prosecuted and penalized in accordance with the provisions
of said code."cralaw virtua1aw library

The petitioner contends —

(a) That the ban on the intervention of political parties in the election of barangay officials is
violative of the constitutional guarantee of the right to form associations and societies for
purposes not contrary to law.

(b) That the ban is incompatible with a democracy and a parliamentary system of government.

The right to form associations or societies for purposes not contrary to law is neither absolute nor
illimitable; it is always subject to the pervasive and dominant police power of the state and may
constitutionally be regulated or curtailed to serve appropriate and important public interests
(Gonzales v. Comelec, 27 SCRA 835; Imbong v. Comelec, 35 SCRA 28). Whether a restriction
imposed is constitutionally permissible or not depends upon the circumstances of each case.

Examining Section 4 of the Barangay Election Act of 1982, be it noted that thereunder, the right
to organize is intact. Political parties may freely be formed although there is a restriction on their
activities, i.e., their intervention in the election of barangay officials on May 17, 1982 is
proscribed. But the ban is narrow, not total. It operates only on concerted or group action of
political parties. Members of political and kindred organizations, acting individually, may
intervene in the barangay election. As the law says: "Nothing (therein) . . . shall be construed as
in any manner affecting or constituting an impairment of the freedom of individuals to support or
oppose any candidate for any barangay office." Moreover, members of the family of a candidate
within the fourth civil degree of consanguinity or affinity as well as the personal campaign staff
of a candidate (not more than 1 for every 100 registered voters in his barangay) can engage in
individual or group action to promote the election of their candidate. chanrobles.com : virtual law library

Aside from the narrow character of the restriction thus impose, the limitation is essential to meet
the felt need of the hour. Explaining the reason for the non-partisan character of the barangay
election when he sponsored Parliamentary Bill 2125 which later became BP Blg. 222, Minister
of State for political Affairs Leonardo B. Perez said: jgc:chanrobles.com.ph

"Mr. Speaker, we must not lose sight of the fact that the barangay is the basic unit not only of our
social structure but also of our political structure. As much as possible, we believe that it would
be a more prudent policy to insulate the barangays from the influence of partisan politics.

"Mr. Speaker, we have seen the salutary results of the non-partisan election of the members of
the Constitutional Convention of 1971. We all recall, Mr. Speaker, that the election of Concon
delegates was non-partisan and, therefore, when history will judge that Constitutional
Convention, it can be safely stated that Constitutional Convention did not belong to any political
party because it was chosen under a non-partisan method; that it was a constitutional convention
that was really of the people, for the people and by the people. So we should not be concerned
and our attention should not be focused on the process but on the after effects of the process. We
would like to say later on, Mr. Speaker, that the barangays, although it is true they are already
considered regular units of our government, are non-partisan, they constitute the base of the
pyramid of our social and political structure, and I think that in order that base will not be subject
to instability because of the influence of political forces, it is better that we elect the officials
thereof through a non-partisan system." cralaw virtua1aw library

There are other reasons for insulating the barangay from the divisive and debilitating effects of a
partisan political campaign. The Barangay Captain and the Barangay Council, apart from their
legislative and consultative powers, also act as an agency for neutral community action such as
the distribution of basic foodstuff and as an instrument in conducting plebiscites and referenda.
The Barangay Captain, together with the members of the Lupon Tagapayapa appointed by him,
exercises administrative supervision over the barangay conciliation panels in the latter’s work of
settling local disputes. The Barangay Captain himself settles or helps settle local controversies
within the barangay either through mediation or arbitration. It would definitely enhance the
objective and impartial discharge of their duties for barangay officials to be shielded from
political party loyalty. In fine, the ban against the participation of political parties in the barangay
election is an appropriate legislative response to the unwholesome effects of partisan bias in the
impartial discharge of the duties imposed on the barangay and its officials as the basic unit of our
political and social structure. chanrobles law library : red

This is not the first time that a restriction as that prescribed in Section 4 of Batas Pambansa Blg.
222 has been judicially challenged. In Imbong v. Comelec, supra, the first paragraph of Section
8(a) of Republic Act No. 6132 was assailed as unconstitutional for allegedly being violative of
the constitutional guarantees of due process, equal protection of the laws, freedom of expression,
freedom of assembly and freedom of association. Like Section 4 of BP Blg. 222, Section 8(a) of
RA 6132 prohibited: chanrob1es virtual 1aw library

1. any candidate for delegate to the (Constitutional) Convention.

(a) from representing, or.

(b) allowing himself to be represented as being a candidate of any political party or any other
organization; and

2. any political party, political group, political committee, civic, religious, professional or other
organizations or organized group of whatever nature from.

(a) intervening in the nomination of any such candidate or in the filing of his certificate, or

(b) from giving aid or support directly or indirectly, material or otherwise, favorable to or against
his campaign for election.

In refusing to declare the assailed legal provisions as unconstitutional, this Court, speaking thru
Mr. Justice Makasiar, said: jgc:chanrobles.com.ph

"The ban against all political parties or organized groups of whatever nature contained in par. 1
of Sec. 8(a), is confined to party or organization support or assistance, whether material, moral,
emotional or otherwise. The very Sec. 8(a) in its proviso permits the candidate to utilize in his
campaign the help of the members of his family within the fourth degree of consanguinity or
affinity, and a campaign staff composed of not more than one for every ten precincts in his
district. . . . The right of a member of any political party or association to support him or oppose
his opponent is preserved as long as such member acts individually. . . .

"It is therefore patent that the restriction contained in Sec. 8(a) is so narrow that the basic
constitutional rights themselves remain substantially intact and inviolate. And it is therefore a
valid infringement of the aforesaid constitutional guarantees invoked by petitioners. . .

"In the said Gonzales v. Comelec case, this Court gave ‘due recognition to the legislative
concern to cleanse, and if possible, render spotless, the electoral process,’ impressed as it was by
the explanation made by the author of R.A. No. 4880, Sen. Lorenzo Tañada, who appeared as
amicus curiae, ‘that such provisions were deemed by the legislative body to be part and parcel of
the necessary and appropriate response not merely to a clear and present danger but to the actual
existence of a grave and substantive evil of excessive partisanship, dishonesty and corruption as
well as of violence that of late has marred election campaigns and partisan political activities in
this country. He did invite our attention likewise to the well settled doctrine that in the choice of
remedies for an admitted malady requiring governmental action, on the legislature primarily rests
the responsibility. Nor should the cure prescribed by it, unless clearly repugnant to fundamental
rights, be ignored or disregarded.’

"But aside from the clear and imminent danger of the debasement of the electoral process, as
conceded by Senator Pelaez, the basic motivation, according to Senate Majority Floor Leader
Senator Arturo Tolentino, the sponsor of the Puyat-Tolentino amendment embodied in par. 1 of
Sec. 8(a) of R.A. No. 6132, is to assure the candidates equal protection of the laws by according
them equality of chances. The primary purpose of the prohibition then is also to avert the clear
and present danger of another substantive evil, the denial of the equal protection of the laws. The
candidates must depend on their individual merits and not on the support of political parties or
organizations. Senator Tolentino and Senator Salonga emphasized that under this provision, the
poor candidate has an even chance as against the rich candidate. We are not prepared to disagree
with them, because such a conclusion, predicated as it is on empirical logic, finds support in our
recent political history and experience. Both senators stressed that the independent candidate
who wins in the election against a candidate of the major political parties, is a rare phenomenon
in this country and the victory of an independent candidate mainly rests on his ability to match
the resources, financial and otherwise, of the political parties or organization supporting his
opponent. This position is further strengthened by the principle that the guarantee of social
justice under Sec. 5, Art. II of the Constitution, includes the guarantee of equal opportunity,
equality of political rights, and equality before the law enunciated by Mr. Justice Tuason in the
case Guido v. Rural Progress Administration.

"While it may be true that a party’s support of a candidate is not wrong per se, it is equally true
that Congress in the exercise of its broad law-making authority can declare certain acts as mala
prohibita when justified by the exigencies of the times. One such act is the party or organization
support proscribed in Sec. 8(a), which ban is a valid limitation on the freedom of association as
well as expression, for the reasons aforestated.

"Senator Tolentino emphasized that ‘equality of chances may be better attained by banning all
organization support.’"

x        x       x

"The political parties and the other organized groups have built-in advantages because of their
machinery and other facilities, which, the individual candidate who is without any organization
support, does not have.

x        x       x
"The freedom of association also implies the liberty not to associate or join with others or join
any existing organization. A person may run independently on his own merits without need of
catering to a political party or any other association for support. And he, as much as the
candidate whose candidacy does not evoke sympathy from any political party or organized
group, must be afforded equal chances. As emphasized by Senators Tolentino and Salonga, this
bar is to assure equal chances to a candidate with talent and imbued with patriotism as well as
nobility of purpose, to that the country can utilize their services if elected." cralaw virtua1aw library

Since Section 4 of the Barangay Election Act is almost a verbatim copy of the first paragraph of
Section 8(a) of Republic Act No. 6132, the quoted arguments in support of the constitutionality
of the latter apply as well in support of the former.

II

The petitioner argues that in a democracy, all elections necessarily must be partisan. This is not
so. For in a representative democracy such as ours, there is merely a guarantee of participation
by the people in the affairs of government thru their chosen representatives, without assurance
that in every instance concerted partisan activity in the selection of those representatives shall be
allowed, unless otherwise mandated expressly or impliedly by the Constitution. The case of
Imbong v. Comelec has precisely rejected the petitioner’s posture. cralawnad

Nor does a parliamentary system of government carry the guarantee that elections in all levels of
government shall be partisan. Under the Constitution, there is an implicit guarantee of political
party participation in the elections for President and members of the Batasang Pambansa. For the
outcome of the elections for President determines the subsequent accredition of political parties.

"The political parties whose respective candidates for President have obtained the first and
second highest number of votes in the last preceding election for President under this
Constitution shall be entitled to accredition if each has obtained at least ten percent (10%) of the
total number of votes cast in such ejection. If the candidates for President obtaining the two
highest number of votes do not each obtain at least ten percent (10%) of the total number of
votes cast, or in case no election for President shall as yet have been held, the Commission on
Elections shall grant accredition to political parties as may be provided by law." (Art. XII-C Sec.
8.)

On the other hand, the presence and participation of majority and minority parties are essential to
the proper working of the Batasang Pambansa, the operation of which assumes that there is a
ruling political party that determines the program of government and a fiscalizing political party
or parties to curb possible abuses of the dominant group.

Outside of the cases where the Constitution clearly requires that the selection of particular
officials shall be thru the ballot and with the participation of political parties, the lawmaking
body, in the exercise of its power to enact laws regulating the conduct of elections, may in our
view ban or restrict partisan elections. We are not aware of any constitutional provision
expressly or impliedly requiring that barangay officials shall be elected thru partisan electoral
process. Indeed, it would be within the competence of the National Assembly to prescribe that
the barangay captain and councilmen, rather than elected, shall be appointed by designated
officials such as the City or Municipal Mayors or Provincial Governors. If barangay officials
could thus be made appointive, we do not think it would be constitutionally obnoxious to
prescribe that they shall be elective, but without political party or partisan involvement in the
process in order to promote objectivity and lack of partisan bias in the performance of their
duties that are better discharged in the absence of political attachment.
chanrobles.com : virtual law library

WHEREFORE, the petition is denied for lack of merit. No costs.

SO ORDERED.

[G.R. No. L-34150. October 16, 1971.]

ARTURO M. TOLENTINO, Petitioner, v. COMMISSION ON ELECTIONS, and THE

CHIEF ACCOUNTANT, THE AUDITOR, and THE DISBURSING OFFICER OF THE
1971 CONSTITUTIONAL CONVENTION, Respondents, RAUL S. MANGLAPUS, JESUS
G. BARRERA, PABLO S. TRILLANA III, VICTOR DE LA SERNA, MARCELO B.
FERNAN, JOSE Y. FERIA, LEONARDO SIGUION REYNA, VICTOR F. ORTEGA, and
JUAN V. BORRA, intervenors.

Arturo M. Tolentino in his own behalf.

Ramon A. Gonzales for respondents Chief Accountant and Auditor of the 1971
Constitutional Convention.

Emmanuel Pelaez, Jorge M. Juco and Tomas L. Echivarre for respondent Disbursing
Officer of the 1971 Constitutional Convention.

Intervenors in their own behalf.

SYLLABUS

1. POLITICAL LAW; JUDICIAL DEPARTMENT; DETERMINATION OF PROPER

ALLOCATION OF POWERS IN GOVERNMENT. — As early as Angara v. Electoral
Commission (63 Phil. 139, 157), this Court — speaking through one of the leading members of
the Constitutional Convention and a respected professor of Constitutional Law, Dr. Jose P.
Laurel — declared that "the judicial department is the only constitutional organ which can called
upon to determine the proper allocation of powers between the several departments and among
the integral or constituent units thereof."
cralaw virtua1aw library

2. CONSTITUTIONAL LAW; AMENDMENTS TO CONSTITUTION; POWER TO AMEND

OR PROPOSE AMENDMENTS VESTED IN THE PEOPLE. — The power to amend the
Constitution or to propose amendments thereto is not included in the general grant of legislative
powers to Congress (Section 1, Art. VI, Constitution of the Philippines). It is part of the inherent
powers of the people — is the repository of sovereignty in a republican state, such as ours
(Section 1, Art. II, Constitution of the Philippines) — to make, and, hence, to amend their own
Fundamental Law.

3. ID.; ID.; ID.; CONGRESS, AS CONSTITUENT ASSEMBLY ALSO EMPOWERED TO

PROPOSE AMENDMENTS. — Congress may propose amendments to the Constitution merely
because the same explicitly grants such power (Sec. 1, Art. XV. Constitution of the Philippines).
Hence, when exercising the same, it is said that Senators and members of the House of
Representatives act, not as members of Congress, but as component elements of a constituent
assembly. When acting as such, the members of Congress derive their authority from the
Constitution, unlike the people, when performing the same function, (Of amending the
Constitution) for their authority does not emanate from the Constitution — they are the very
source of all powers of government, including the Constitution itself .
DECISION

BARREDO, J.:

Petition for prohibition principally to restrain the respondent Commission on Elections "from
undertaking to hold a plebiscite on November 8, 1971," at which the proposed constitutional
amendment "reducing the voting age" in Section 1 of Article V of the Constitution of the
Philippines to eighteen years "shall be submitted" for ratification by the people pursuant to
Organic Resolution No. 1 of the Constitutional Convention of 1971, and the subsequent
implementing resolutions, by declaring said resolutions to be without the force and effect of law
in so far as they direct the holding of such plebiscite and by also declaring the acts of the
respondent Commission (COMELEC) performed and to be done by it in obedience to the
aforesaid Convention resolutions to be null and void, for being violative of the Constitution of
the Philippines.

As a preliminary step, since the petition named as respondent only the COMELEC, the Court
required that copies thereof be served on the Solicitor General and the Constitutional
Convention, through its President, for such action as they may deem proper to take. In due time,
respondent COMELEC filed its answer joining issues with petitioner. To further put things in
proper order, and considering that the fiscal officers of the Convention are indispensable parties
in a proceeding of this nature, since the acts sought to be enjoined involve the expenditure of
funds appropriated by law for the Convention, the Court also ordered that the Disbursing Officer,
Chief Accountant and Auditor of the Convention be made respondents. After the petition was so
amended, the first appeared thru Senator Emmanuel Pelaez and the last two thru Delegate
Ramon Gonzales. All said respondents, thru counsel, resist petitioner’s action.

For reasons of orderliness and to avoid unnecessary duplication of arguments and even possible
confusion, and considering that with the principal parties being duly represented by able counsel,
their interests would be adequately protected already, the Court had to limit the number of
intervenors from the ranks of the delegates to the Convention who, more or less, have legal
interest in the success of the respondents, and so, only Delegates Raul S. Manglapus, Jesus G.
Barrera, Pablo S. Trillana III, Victor de la Serna, Marcelo B. Fernan, Jose Y. Feria, Leonardo
Siguion Reyna, Victor Ortega and Juan B. Borra, all distinguished lawyers in their own right,
have been allowed to intervene jointly. The Court feels that with such an array of brilliant and
dedicated counsel, all interests involved should be duly and amply represented and protected. At
any rate, notwithstanding that their corresponding motions for leave to intervene or to appear as
amicus curiae 1 have been denied, the pleadings filed by the other delegates and some private
parties, the latter in representation of their minor children allegedly to be affected by the result of
this case are with the records and the Court acknowledges that they have not been without value
as materials in the extensive study that has been undertaken in this case.

The background facts are beyond dispute. The Constitutional Convention of 1971 came into
being by virtue of two resolutions of the Congress of the Philippines approved in its capacity as a
constituent assembly convened for the purpose of calling a convention to propose amendments to
the Constitution, namely, Resolutions 2 and 4 of the joint sessions of Congress held on March
16, 1967 and June 17, 1969, respectively. The delegates to the said Constitution were all elected
under and by virtue of said resolutions and the implementing legislation thereof, Republic Act
6132. The pertinent portions of Resolution No. 2 read as follows: jgc:chanrobles.com.ph

"SECTION 1. There is hereby called a convention to propose amendments to the Constitution of

the Philippines, to be composed of two elective Delegates from each representative district who
shall have the same qualifications as those required of Members of the House of Representatives.

x        x       x

"SECTION 7. The amendments proposed by the Convention shall be valid and considered part
of the Constitution when approved by a majority of the votes cast in an election at which they are
submitted to the people for their ratification pursuant to Article XV of the Constitution." cralaw virtua1aw library

Resolution No. 4 merely modified the number of delegates to represent the different cities and
provinces fixed originally in Resolution No. 2.

After the election of the delegates held on November 10, 1970, the Convention held its inaugural
session on June 1, 1971. Its preliminary labors of election of officers, organization of committees
and other preparatory works over, as its first formal proposal to amend the Constitution, its
session which began on September 27, 1971, or more accurately, at about 3:30 in the morning of
September 28, 1971, the Convention approved Organic Resolution No. 1 reading thus: jgc:chanrobles.com.ph

"CC ORGANIC RESOLUTION NO. 1

"A RESOLUTION AMENDING SECTION ONE OF ARTICLE V OF THE CONSTITUTION

OF THE PHILIPPINES SO AS TO LOWER THE VOTING AGE TO 18.

"BE IT RESOLVED as it is hereby resolved by the 1971 Constitutional Convention: jgc:chanrobles.com.ph

"Section 1. Section One of Article V of the Constitution of the Philippines is amended to as

follows: jgc:chanrobles.com.ph

"Section 1. Suffrage may be exercised by (male) citizens of the Philippines not otherwise
disqualified by law, who are (twenty-one) EIGHTEEN years or over and are able to read and
write, and who shall have resided in the Philippines for one year and in the municipality wherein
they propose to vote for at least six months preceding the election.’

"Section 2. This amendment shall be valid as part of the Constitution of the Philippines when
approved by a majority of the votes cast in a plebiscite to coincide with the local elections in
November 1971.

"Section 3. This partial amendment, which refers only to the age qualification for the exercise of
suffrage shall be without prejudice to other amendments that will be proposed in the future by
the 1971 Constitutional Convention on other portions of the amended Section or on other
portions of the entire Constitution.

"Section 4. The Convention hereby authorizes the use of the sum of P75,000.00 from its savings
or from its unexpended funds for the expense of the advanced plebiscite; provided, however that
should there be no savings or unexpended sums, the Delegates waive P250.00 each or the
equivalent of 2-1/2 days per diem.’"

By a letter dated September 28, 1971, President Diosdado Macapagal, called upon respondent
Comelec "to help the Convention implement (the above) resolution." The said letter reads: jgc:chanrobles.com.ph

"September 28, 1971 - "The Commission on Elections

Manila

Thru the Chairman

Gentlemen: chanrob1es virtual 1aw library

Last night the Constitutional Convention passed Resolution No. 1 quoted as follows: chanrob1es virtual 1aw library

x        x       x

(see above)

Pursuant to the provision of Section 14, Republic Act No. 6132 otherwise known as the
Constitutional Convention Act of 1971, may we call upon you to help the Convention implement
this resolution: chanrob1es virtual 1aw library

Sincerely,

(Sgd.) DIOSDADO P. MACAPAGAL

DIOSDADO P. MACAPAGAL

President"

On September 30, 1971, COMELEC "RESOLVED to inform the Constitutional Convention that
it will hold the plebiscite on condition that: jgc:chanrobles.com.ph

"(a) The Constitutional Convention will undertake the printing of separate official ballots,
election returns and tally sheets for the use of said plebiscite at its expense;

"(b) The Constitutional Convention will adopt its own security measures for the printing and
shipment of said ballots and election forms; and

"(c) Said official ballots and election forms will be delivered to the Commission in time so that
they could be distributed at the same time that the Commission will distribute its official and
sample ballots to be used in the elections on November 8, 1971." cralaw virtua1aw library

What happened afterwards may best be stated by quoting from intervenors’ statement of the
genesis of the above proposal: jgc:chanrobles.com.ph

"The President of the Convention also issued an order forming an Ad Hoc Committee to
implement the Resolution.

"This Committee issued implementing guidelines which were approved by the President who
then transmitted them to the Commission on Elections.

"The Committee on Plebiscite and Ratification filed a report on the progress of the
implementation of the plebiscite in the afternoon of October 7, 1971, enclosing copies of the
order, resolution and letters of transmittal above referred to (Copy of the report is hereto attached
as Annex 8-Memorandum)

"RECESS RESOLUTION

"In its plenary session in the evening of October 7, 1971, the Convention approved a resolution
authored by Delegate Antonio Olmedo of Davao Oriental, calling for a recess of the Convention
from November 1, 1971 to November 9, 1971 to permit the delegates to campaign for the
ratification of Organic Resolution No. 1. (Copies of the resolution and the transcript of debate
thereon are hereto attached as Annexes 9 and 9-A Memorandum, respectively).

"RESOLUTION CONFIRMING IMPLEMENTATION

"On October 12, 1971, the Convention passed Resolution No. 24 submitted by Delegate Jose
Ozamiz confirming the authority of the President of the Convention to implement Organic
Resolution No. 1, including the creation of the Ad Hoc Committee ratifying all acts performed in
connection with said implementation." cralaw virtua1aw library
Upon these facts, the main thrust of the petition is that Organic Resolution No. 1 and the other
implementing resolutions thereof subsequently approved by the Convention have no force and
effect as laws in so far as they provide for the holding of a plebiscite co incident with the
elections of eight senators and all city, provincial and municipal Officials to be held on
November 8, 1971, hence all of Comelec’s acts in obedience thereof and tending to carry out the
holding of the plebiscite directed by said resolutions are null and void, on the ground that the
calling and holding of such a plebiscite is, by the Constitution, a power lodged exclusively in
Congress, as a legislative body, and may not be exercised by the Convention, and that, under
Section 1, Article XV of the Constitution, the proposed amendment in question cannot be
presented to the people for ratification separately from each and all of the other amendments to
be drafted and proposed by the Convention. On the other hand, respondents and intervenors posit
that the power to provide for, fix the date and lay down the details of the plebiscite for the
ratification of any amendment the Convention may deem proper to propose is within the
authority of the Convention as a necessary consequence and part of its power to propose
amendments and that this power includes that of submitting such amendments either individually
or jointly at such time and manner as the Convention may direct in its discretion. The Court’s
delicate task now is to decide which of these two poses is really in accord with the letter and
spirit of the Constitution.

As a preliminary and prejudicial matter, the intervenors raise the question of jurisdiction. They
contend that the issue before Us is a political question and that the Convention being a legislative
body of the highest order is sovereign, and as such, its acts impugned by petitioner are beyond
the control of the Congress and the courts. In this connection, it is to be noted that none of the
respondent has joined intervenors in this posture. In fact, respondents Chief Accountant and
Auditor of the Convention, expressly concede the jurisdiction of this Court in their answer
acknowledging that the issue herein is a justiciable one.

Strangely, intervenors cite in support of this contention portions of the decision of this Court in
the case of Gonzales v. Comelec, 21 SCRA 774, wherein the members of the Court, despite their
being divided in their opinions as to the other matters therein involved, were precisely
unanimous in upholding its jurisdiction. Obviously, distinguished counsel have either failed to
grasp the full impact of the portions of Our decision they have quoted or would misapply them
by taking them out of context.

There should be no more doubt as to the position of this Court regarding its jurisdiction vis-a-vis
the constitutionality of the acts of the Congress, acting as a constituent assembly, and, for that
matter, those of a constitutional convention called for the purpose of proposing amendments to
the Constitution, which concededly is at par with the former. A simple reading of Our ruling in
that very case of Gonzales relied upon by intervenors should dispel any lingering misgivings as
regards that point. Succinctly but comprehensively, Chief Justice Concepcion held for the Court
thus:jgc:chanrobles.com.ph

"As early as Angara v. Electoral Commission (63 Phil. 139, 157), this Court — speaking through
one of the leading members of the Constitutional Convention and a respected professor of
Constitutional Law, Dr. Jose P. Laurel — declared that ‘the judicial department is the only
constitutional organ which can be called upon to determine the proper allocation of powers
between the several departments and among the integral or constituent units thereof.’

"It is true that in Mabanag v. Lopez Vito (supra), this Court characterizing the issue submitted
thereto as a political one, declined to pass upon the question whether or not a given number of
votes cast in Congress in favor of a proposed amendment to the Constitution — which was being
submitted to the people for ratification — satisfied the three-fourths vote requirement of the
fundamental law. The force of this precedent has been weakened, however, by Suanes v. Chief
Accountant of the Senate (81 Phil: 818), Avelino v. Cuenco, (L-2851, March 4 & 14, 1943),
Tañada v. Cuenco, (L-10520, Feb. 28, 1957) and Macias v. Commission on Elections, (L-18684,
Sept. 14, 1961). In the first we held that the officers and employees of the Senate Electoral
Tribunal are under its supervision and control, not of that of the Senate President, as claimed by
the latter; in the second, this Court proceeded to determine the number of Senators necessary for
quorum in the Senate; in the third, we nullified the election, by Senators belonging to the party
having the largest number of votes in said chamber, purporting to act, on behalf of the party
having the second largest number of votes therein of two (2) Senators belonging to the first
party, as members, for the second party, of the Senate Electoral Tribunal; and in the fourth, we
declared unconstitutional an act of Congress purporting to apportion the representatives districts
for the House of Representatives, upon the ground that the apportionment had not been made as
may be possible according to the number of inhabitants of each province. Thus we rejected the
theory, advanced in these four (4) cases that the issues therein raised were political questions the
determination of which is beyond judicial review.

"Indeed, the power to amend the Constitution or to propose amendments thereto is not included
in the general grant of legislative powers to Congress (Section 1. Art. VI, Constitution of the
Philippines). It is part of the inherent powers of the people — as the repository sovereignty in a
republican state, such as ours (Section 1, Art, II, Constitution of the Philippines) — to make, and,
hence, to amend their own Fundamental Law. Congress may propose amendments to the
Constitution merely because the same explicitly grants such power. (Section 1, Art. XV,
Constitution of the Philippines) Hence, when exercising the same it is said that Senators and
members of the House of Representatives act, not as members of Congress, but as component
elements of a constituent assembly. When acting as such, the members of Congress derive their
authority from the Constitution, unlike the people, when performing the same function, (Of
amending the Constitution) for their authority does not emanate from the Constitution — they
are the very source of all powers of government including the Constitution itself .

"Since, when proposing, as a constituent assembly, amendments to the Constitution, the

members of Congress derive their authority from the Fundamental Law, it follows, necessarily,
that they do not have the final say on whether or not their acts are within or beyond constitutional
limits. Otherwise. they could brush aside and set the same at naught, contrary to the basic tenet
that ours is a government of laws, not of men, and to the rigid nature of our Constitution. Such
rigidity is stressed by the fact that, the Constitution expressly confers upon the Supreme Court,
(And, inferentially, to lower courts.) the power to declare a treaty unconstitutional. (Sec. 2 (1),
Art. VIII of the Constitution), despite the eminently political character of treaty-making power.

"In short, the issue whether or not a Resolution of Congress — acting as a constituent assembly
— violates the Constitution is essentially justiciable not political, and, hence, subject to judicial
review, and, to the extent that this view may be inconsistent with the stand taken in Mabanag v.
Lopez Vito, (supra) the latter should be deemed modified accordingly. The Members of the
Court are unanimous on this point." cralaw virtua1aw library

No one can rightly claim that within the domain of its legitimate authority, the Convention is not
supreme. Nowhere in his petition and in his oral argument and memoranda does petitioner point
otherwise. Actually, what respondents and intervenors are seemingly reluctant to admit is that
the Constitutional Convention of 1971, as any other convention of the same nature, owes its
existence and derives all its authority and power from the existing Constitution of the
Philippines. This Convention has not been called by the people directly as in the case of a
revolutionary convention which drafts the first Constitution of an entirely new government born
of either a war of liberation from a mother country or of a revolution against an existing
government or of a bloodless seizure of power a la coup d’etat. As to such kind of conventions, it
is absolutely true that the convention is completely without restrain and omnipotent all wise, and
it is as to such conventions that the remarks of Delegate Manuel Roxas of the Constitutional
Convention of 1934 quoted by Senator Pelaez refer. No amount of rationalization can belie the
fact that the current convention came into being only because it was called by a resolution of a
joint session of Congress acting as a constituent assembly by authority of Section 1, Article XV
of the present Constitution which provides: jgc:chanrobles.com.ph

"ARTICLE XV — AMENDMENTS

"SECTION 1. The Congress in joint session assembled, by a vote of three-fourths of all the
Members of the Senate and of the House of Representatives voting separately. may propose
amendments to this Constitution or call a convention for the purpose. Such amendments shall be
valid as part of this Constitution when approved by a majority of the votes cast at an election at
which the amendments are submitted to the people for their ratification." cralaw virtua1aw library

True it is that once convened, this Convention became endowed with extraordinary powers
generally beyond the control of any department of the existing government, but the compass of
such powers can be co-extensive only with the purpose for which the convention was called and
as it may propose cannot have any effect as part of the Constitution until the same are duly
ratified by the people, it necessarily follows that the acts of convention, its officers and members
are not immune from attack on constitutional grounds. The present Constitution is in full force
and effect in its entirety and in everyone of its parts, the existence of the Convention
notwithstanding, and operates even within the walls of that assembly. While it is indubitable that
in its internal operation and the performance of its task to propose amendments to the
Constitution it is not subject to any degree of restraint or control by any other authority than
itself, it is equally beyond cavil that neither the Convention nor any of its officers or members
can rightfully deprive any person of life, liberty or property without due process of law, deny to
anyone in this country the equal protection of the laws or the freedom of speech and of the press
in disregard of the Bill of Rights of the existing Constitution. Nor, for that matter, can such
Convention validly pass any resolution providing for the taking of private property without just
compensation or for the imposition or exacting of any tax, import or assessment, or declare war
or call the Congress to a special session, suspend the privilege of the writ of habeas corpus,
pardon a convict or render judgment in a controversy between private individuals or between
such individuals and the state, in violation of the distribution of powers in the Constitution.

It being manifest that there are powers which the Convention may not and cannot validly assert,
much less exercise, in the light of the existing Constitution, the simple question arises, should an
act of the Convention be assailed by a citizen as being among those not granted to or inherent in
it, according to the existing Constitution, who can decide whether such a contention is correct or
not? It is of the very essence of the rule of law that somehow somewhere the power and duty to
resolve such a grave constitutional question must be lodged on some authority, or we would have
to confess that the integrated system of government established by our founding fathers contains
a wide vacuum no intelligent man could ignore, which is naturally unworthy of their learning,
experience and craftmanship in constitution-making.

We need not go far in search for the answer to the query We have posed. The very decision of
Chief Justice Concepcion in Gonzales, so much invoked by intervenors, reiterates and reenforces
the irrefutable logic and wealth of principle in the opinion written for a unanimous Court by
Justice Laurel in Angara v. Electoral Commission, 63 Phil., 134, reading: jgc:chanrobles.com.ph

". . . (I)n the main, the Constitution has blocked out with deft strokes and in bold lines, allotment
of power to the executive, the legislative and the judicial departments of the government. The
overlapping and interlacing of functions and duties between the several departments, however,
sometimes makes it hard to say where the one leaves off and the other begins. In times of social
disquietude or political excitement, the great landmark of the Constitution are apt to be forgotten
or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only
constitutional organ which can be called upon to determine the proper allocation of powers
between the several departments and among the integral or constituent units thereof.

"As any human production our Constitution is of course lacking perfection and perfectibility, but
as much as it was within the power of our people, acting through their delegates to so provide,
that instrument which is the expression of their sovereignty however limited, has established a
republican government intended to operate and function as a harmonious whole, under a system
of check and balances and subject to specific limitations and restrictions provided in the said
instrument. The Constitution sets forth in no uncertain language the restrictions and limitations
upon governmental powers and agencies. If these restrictions and limitations are transcended it
would be inconceivable if the Constitution had not provided for a mechanism by which to direct
the course of government along constitutional channels, for then the distribution of powers
would be mere verbiage, the bill of rights mere expressions of sentiment and the principles of
good government mere political apothegms. Certainly the limitations and restrictions embodied
in our Constitution are real as they should be in any living Constitution. In the United States
where no express constitutional grant is found in their constitution, the possession of this
moderating power of the courts, not to speak of its historical origin and development there. has
been set at rest by popular acquiescence for a period of more than one and half centuries. In our
case, this moderating power is granted, if not expressly, by clear implication from section 2 of
Article VIII of our Constitution.

"The Constitution is a definition of the powers or government. Who is to determine the nature,
scope and extent of such powers? The Constitution itself has provided for the instrumentality of
the judiciary as the rational way. And when the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the other departments; it does not in reality
nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation
assigned to it by the Constitution to determine conflicting claims of authority under the
Constitution and to establish for the parties in an actual controversy the rights which that
instrument secures and guarantees to them. This is in truth all that is involved in what is termed
‘judicial supremacy’ which properly is the power of judicial review under the Constitution. Even
then, this power of judicial review is limited to actual cases and controversies to be exercised
after full opportunity of argument by the parties, and limited further to the constitutional question
raised or the very lis mota presented. Any attempt at abstraction could only lead to dialectics and
barren legal questions and to strike conclusions unrelated to actualities. Narrowed as its functions
is in this manner the judiciary does not pass upon questions of wisdom, justice or expediency of
legislation. More than that, courts accord the presumption of constitutionality to legislative
enactments, not only because the legislature is presumed to abide by the Constitution but also
because the judiciary in the determination of actual cases and controversies must reflect the
wisdom and justice of the people as expressed through their representatives in the executive and
legislative departments of the government.

"But much as we might postulate on the internal checks of power provided in our Constitution, it
ought not the less to be remembered that. in the language of James Madison, the system itself is
not ‘the chief palladium of constitutional liberty.. the people who are authors of this blessing
must also be its guardians.. their eyes must be ever ready to mark, their voices to pronounce. . .
aggression on the authority of their Constitution.’ In the last and ultimate analysis then, must the
success of our government in the unfolding years to come be tested in the crucible of Filipino
minds and hearts than in consultation rooms and court chambers.

"In the case at bar, the National Assembly has by resolution (No. 8) of December 3, 1935,
confirmed the election of the herein petitioner to the said body. On the other hand. the Electoral
Commission has by resolution adopted on December 9, 1935, fixed said date as the last day for
the filing of protests against the election, returns and qualifications of members of the National
Assembly; notwithstanding the Previous confirmations made by the National Assembly as
aforesaid. If, as contended by the petitioner, the resolution of the National Assembly has the
effect of cutting off the power of the Electoral Commission to entertain protests against the
election, returns and qualifications of members of the National Assembly, submitted after
December 3, 1935 then the resolution of the Electoral Commission of December 9, 1935, is mere
surplusage and had no effect. But, if, as contended by the respondents, the Electoral Commission
has the sole power of regulating its proceedings to the exclusion of the National Assembly, then
the resolution of December 9, 1935, by which the Electoral Commission fixed said date as the
last day for filing protests against the election, returns and qualifications of members of the
National Assembly, should be upheld.

"Here is then presented an actual controversy involving as it does a conflict of a grave

constitutional nature between the National Assembly on the one hand and the Electoral
Commission on the other. From the very nature of the republican government established in our
country in the light of American experience and of our own, upon the judicial department is
thrown the solemn and inescapable obligation of interpreting the Constitution and defining
constitutional boundaries. The Electoral Commission as we shall have occasion to refer
hereafter, is a constitutional organ, created for a specific purpose, namely, to determine all
contests relating to the election, returns and qualifications of the members of the National
Assembly. Although the Electoral Commission may not be interfered with, when and while
acting within the limits of its authority, it does not follow that it is beyond the reach of the
constitutional mechanism adopted by the People and that it is not subject to constitutional
restriction. The Electoral Commission is not a separate department of the government, and even
if it were, conflicting claims of authority under the fundamental law between departmental
powers and agencies of the government are necessarily determined by the judiciary in justiciable
and appropriate cases. Discarding the English type and other European types of constitutional
government, the framers of our Constitution adopted the American type where the written
constitution is interpreted and given effect by the judicial department. In some countries which
have declined to follow the American example, provisions have been inserted in their
constitutions prohibiting the courts from exercising the power to interpret the fundamental law.
This is taken as a recognition of what otherwise would be the rule that in the absence of direct
prohibition, courts are bound to assume what is logically their function. For instance, the
Constitution of Poland of 1921 expressly provides that courts shall have no power to examine the
validity of statutes (art. 81, Chap. IV). The former Austrian Constitution contained a similar
declaration. In countries whose constitution are silent in this respect, courts have assumed this
power. This is true in Norway, Greece, Australia and South Africa. Whereas, in Czechoslovakia
(arts. 2 and 3, Preliminary Law to Constitutional Charter of the Czechoslovak, Republic,
February 29, 1920) and Spain (arts. 121-123, Title IX, Constitution of the Republic of 1931)
especial constitutional courts are established to pass upon the validity of ordinary laws. In our
case, the nature of the present controversy shows the necessity of a final constitutional arbiter to
determine the conflict of authority between two agencies created by the Constitution. Were we to
decline to take cognizance of the controversy, who will determine the conflict? And if the
conflict were left undecided and undetermined, would not a void be thus created in our
constitutional system which may in the long run prove destructive of the entire framework? To
ask these questions is to answer them. Natura vacuum abhorret, so must we avoid exhaustion in
our constitutional system. Upon principle, reason, and authority, we are clearly of the opinion
that upon the admitted facts of the present case, this court has jurisdiction over the Electoral
Commission and the subject matter of the present controversy for the purpose of determining the
character, scope and extent of the constitutional grant to the Electoral Commission as ‘the sole
judge of all contests relating to the election, returns and qualifications of the members of the
National Assembly." cralaw virtua1aw library

As the Chief Justice has made it clear in Gonzales, like Justice Laurel did in Angara, these
postulates just quoted do not apply only to conflicts of authority between the three existing
regular departments of the government but to all such conflicts between and among these
departments, or, between any of them, on the one hand, and any other constitutionally created
independent body, like the electoral tribunals in Congress, the Comelec and the constituent
assemblies constituted by the House of Congress, on the other. We see no reason of logic or
principle whatsoever, and none has been convincingly shown to Us by any of the respondents
and intervenors, why the same ruling should not apply to the present Convention, even if it is an
assembly of delegates elected directly by the people, since at best, as already demonstrated, it has
been convened by authority of and under the terms of the present Constitution.
Accordingly, We are left with no alternative but to uphold the jurisdiction of the Court over the
present case. It goes without saying that We do this not because the Court is superior to the
Convention or that the Convention is subject to the control of the Court, but simply because both
the Convention and the Court are subject to the Constitution and the rule of law, and "upon
principle, reason and authority," per Justice Laurel, supra, it is within the power, as it is the
solemn duty of the Court, under the existing Constitution to resolve the issues in which
petitioner, respondents and intervenors have joined in this case.

II

The issue of jurisdiction thus resolved, We come to the crux of the petition. Is it within the
powers of the Constitutional Convention of 1971 to order, on its own fiat. the holding of a
plebiscite for the ratification of the proposed amendment reducing to eighteen years the age for
the exercise of suffrage under Section 1 of Article V of the Constitution proposed in the
Convention’s Organic Resolution No. 1 in the manner and form provided for in said resolution
and the subsequent implementing acts and resolution of the Convention?

At the threnold, the environmental circumstances of this case demand the most accurate and
unequivocal statement of the real issue which the Court is called upon to resolve. Petitioner has
very clearly stated that he is not against the constitutional extension of the right of suffrage to the
eighteen-year-olds, as a matter of fact, he has advocated or sponsored in Congress such a
proposal, and that, in truth, the herein petition is not intended by him to prevent that the proposed
amendment here involved be submitted to the people for ratification, his only purpose in filing
the petition being to comply with his sworn duty to prevent, whenever he can, any violation of
the Constitution of the Philippines even if it is committed in the course of or in connection with
the most laudable undertaking. Indeed, as the Court sees it, the specific question raised in this
case is limited solely and only to the point of whether or not it is within the power of the
Convention to call for a plebiscite for the ratification by the people of the constitutional
amendment proposed in the abovequoted Organic Resolution No. 1, in the manner and form
provided in said resolution as well as in the subsequent implementing actions and resolution of
the Convention and its officers, at this juncture of its proceedings, when, as it is a matter of
common knowledge and judicial notice, it is not set to adjourn sine die, and is, in fact, still in the
preliminary stages of considering other reforms or amendments affecting other parts of the
existing Constitution; and, indeed, Organic Resolution No. 1 itself expressly provides that the
amendment therein proposed "shall be without prejudice to other amendments that will be
proposed in the future by the 1971 Constitutional Convention on other portions of the amended
section or on other portions of the entire Constitution." In other words, nothing that the Court
may say or do in this case should be understood as reflecting, in any degree or means, the
individual or collective stand of the members of the Court on the fundamental issue of whether
or not the eighteen-year-olds should be allowed to vote, simply because that issue is not before
Us now. There should be no doubt in the mind of anyone that, once the Court finds it
constitutionally permissible, it will not hesitate to do its part so that the said proposed
amendment may be presented to the people for their approval or rejection.

Withal, the Court rests securely in the conviction that the fire and enthusiasm of the youth have
not blinded them to the absolute necessity, under the fundamental principles of democracy to
which the Filipino people is committed, of adhering always to the rule of law. Surely, their
idealism, sincerity and purity of purpose cannot permit any other line of conduct or approach in
respect of the problem before Us. The Constitutional Convention of 1971 itself was born, in a
great measure, because of the pressure brought to bear upon the Congress of the Philippines by
various elements of the people, the youth in particular, in their incessant search for a peaceful
and orderly means of bringing about meaningful changes in the structure and bases of the
existing social and governmental institutions, including the provisions of the fundamental law
related to the well-being and economic security of the underprivileged classes of our people as
well as those concerning the preservation and protection of our natural resources and the national
patrimony, as an alternative to violent and chaotic ways of achieving such lofty ideals. In brief,
leaving aside the excesses of enthusiasm which at times have justifiably or unjustifiably marred
the demonstrations in the streets, plazas and campuses, the youth of the Philippines, in general,
like the rest of the people, do not want confusion and disorder, anarchy and violence; what they
really want are law and order, peace and orderliness, even in the pursuit of what they strongly
and urgently feel must be done to change the present order of things in this Republic of ours. It
would be tragic and contrary to the plain compulsion of these perspectives, if the Court were to
allow itself in deciding this case to be carried astray by considerations other than the imperatives
of the rule of law and of the applicable provisions of the Constitution. Needless to say, in a larger
measure than when it binds other departments of the government or any other official or entity,
the Constitution imposes upon the Court the sacred duty to give meaning and vigor to the
Constitution, by interpreting and construing its provisions in appropriate cases with the proper
parties and by striking down any act violative thereof. Here, as in all other cases, We are
resolved to discharge that duty.

During these times when most anyone feels very strongly the urgent need for constitutional
reforms, to the point of being convinced that meaningful change is the only alternative to a
violent revolution, this Court would be the last to put any obstruction or impediment to the work
of the Constitutional Convention. If there are respectable sectors opining that it has not been
called to supplant the existing Constitution in its entirety, since its enabling provision, Article
XV, from which the Convention itself draws life expressly speaks only of amendments which
shall form part of it, which opinion is not without persuasive force both in principle and in logic,
the seemingly prevailing view is that only the collective judgment of its members as to what is
warranted by the present condition of things, as they see it, can limit the extent of the
constitutional innovations the Convention may propose, hence the complete substitution of the
existing constitution is not beyond the ambit of the Convention’s authority. Desirable as it may
be to resolve this grave divergence of views, the Court does not consider this case to be properly
the one in which it should discharge its constitutional duty in such premises. The issues raised by
petitioner, even those among them in which respondents and intervenors have joined in an
apparent wish to have them squarely passed upon by the Court do not necessarily impose upon
Us the imperative obligation to express Our views thereon. The Court considers it to be of the
utmost importance that the Convention should be untrammelled and unrestrained in the
performance of its constitutionally assigned mission in the manner and form it may conceive
best, and so the Court may step in to clear up doubts as to the boundaries set down by the
Constitution only when and to the specific extent only that it would be necessary to do so to
avoid a constitutional crisis or a clearly demonstrable violation of the existing Charter. Withal, it
is a very familiar principle of constitutional law that constitutional questions are to be resolved
by the Supreme Court only when there is no alternative but to do it, and this rule is founded
precisely on the principle of respect that the Court must accord to the acts of the other coordinate
departments of the government, and certainly, the Constitutional Convention stands almost in a
unique footing in that regard.

In our discussion of the issue of jurisdiction, We have already made it clear that the Convention
came into being by a call of a joint session of Congress pursuant to Section 1 of Article XV of
the Constitution, already quoted earlier in this opinion. We reiterate also that as to matters not
related to its internal operation and the performance of its assigned mission to propose
amendments to the Constitution, the Convention and its officers and members are all subject to
all the provisions of the existing Constitution. Now We hold that even as to its latter task of
proposing amendments to the Constitution, it is subject to the provisions of Section 1 of Article
XV. This must be so, because it is plain to Us that the framers of the Constitution took care that
the process of amending the same should not be undertaken with the same ease and facility in
changing an ordinary legislation. Constitution making is the most valued power, second to none,
of the people in a constitutional democracy such as the one our founding fathers have chosen for
this nation, and which we of the succeeding generations generally cherish. And because the
Constitution affects the lives, fortunes, future and every other conceivable aspect of the lives of
all the people within the country and those subject to its sovereignty, every degree of care is
taken in preparing and drafting it. A constitution worthy of the people for which it is intended
must not be prepared in haste without adequate deliberation and study. It is obvious that
correspondingly, any amendment of the Constitution is of no less importance than the whole
Constitution itself, and perforce must be conceived and prepared with as much care and
deliberation. From the very nature of things, the drafters of an original constitution, as already
observed earlier, operate without any limitations, restraints or inhibitions save those that they
may impose upon themselves. This is not necessarily true of subsequent conventions called to
amend the original constitution. Generally, the framers of the latter see to it that their handiwork
is not lightly treated and as easily mutilated or changed, not only for reasons purely personal but
more importantly, because written constitutions are supposed to be designed so as to last for
some time, if not for ages, or for, at least, as long as they can be adopted to the needs and
exigencies of the people, hence, they must be insulated against precipitate and hasty actions
motivated by more or less passing political moods or fancies. Thus, as a rule, the original
constitutions carry with them limitations and conditions, more or less stringent, made so by the
people themselves, in regard to the process of their amendment. And when such limitations or
conditions are so incorporated in the original constitution, it does not lie in the delegates of any
subsequent convention to claim that they may ignore and disregard such conditions because they
are as powerful and omnipotent as their original counterparts.

Nothing of what is here said is to be understood as curtailing in any degree the number and
nature and the scope and extent of the amendments the Convention may deem proper to propose.
Nor does the Court propose to pass on the issue extensively and brilliantly discussed by the
parties as to whether or not the power or duty to call a plebiscite for the ratification of the
amendments to be proposed by the Convention is exclusively legislative and as such may be
exercised only by the Congress or whether the said power can be exercised concurrently by the
Convention with the Congress. In the view the Court takes of;the present case, it does not
perceive absolute necessity to resolve that question, grave and important as it may be Truth to
tell, the lack of unanimity or even of a consensus among the members of the Court in respect to
this issue creates the need for more study and deliberation, and as time is of the essence in this
case, for obvious reasons, November 8, 1971, the date set by the Convention for the plebiscite it
is calling, being nigh, We will refrain from making any pronouncement or expressing Our views
on this question until a more appropriate case comes to Us. After all, the basis of this decision is
as important and decisive as any can be.

The ultimate question, therefore, boils down to this: Is there any limitation or condition in
Section 1 of Article XV of the Constitution which is violated by the act of the Convention of
calling for a plebiscite on the sole amendment contained in Organic Resolution No. 1? The Court
holds that there is, and it is the condition and limitation that all the amendments to be proposed
by the same Convention must be submitted to the people in a single "election" or plebiscite. It
being indisputable that the amendment now proposed to be submitted to a plebiscite is only the
first amendment the Convention will propose We hold that the plebiscite being called for the
purpose of submitting the same for ratification of the people on November 8, 1971 is not
authorized by Section 1 of Article XV of the Constitution, hence all acts of the Convention and
the respondent Comelec in that direction are null and void.

We have arrived at this conclusion for the following reasons: chanrob1es virtual 1aw library

1. The language of the constitutional provision aforequoted is sufficiently clear. It says distinctly
that either Congress sitting as a constituent assembly or a convention called for the purpose "may
propose amendments to this Constitution, "thus placing no limit as to the number of amendments
that Congress or the Convention may propose. The same provision also as definitely provides
that "such amendments shall be valid as part of this Constitution when approved by a majority of
the votes cast at an election at which the amendments are submitted to the people for their
ratification," thus leaving no room for doubt as to how many "elections" or plebiscites may be
held to ratify any amendment or amendments proposed by the same constituent assembly of
Congress or convention, and the provision unequivocably says "an election" which means only
one.

(2) Very little reflection is needed for anyone to realize the wisdom and appropriateness of this
provision. As already stated, amending the Constitution is as serious and important an
undertaking as constitution making itself. Indeed, any amendment of the Constitution is as
important as the whole of it, if only because the Constitution has to be an integrated and
harmonious instrument, if it is to be viable as the framework of the government it establishes, on
the one hand, and adequately formidable and reliable as the succinct but comprehensive
articulation of the rights, liberties, ideology, social ideals, and national and nationalistic policies
and aspirations of the people, on the other. It is inconceivable how a constitution worthy of any
country or people can have any part which is out of tune with its other parts.

A constitution is the work of the people thru its drafters assembled by them for the purpose.
Once the original constitution is approved, the part that the people play in its amendment
becomes harder, for when a whole constitution is submitted to them, more or less they can
assume its harmony as an integrated whole, and they can either accept or reject it in its entirety.
At the very least, they can examine it before casting their vote and determine for themselves
from a study of the whole document the merits and demerits of all or any of its parts and of the
document as a whole. And so also, when an amendment is submitted to them that is to form part
of the existing constitution, in like fashion they can study with deliberation the proposed
amendment in relation to the whole existing constitution and or any of its parts and thereby
arrive at an intelligent judgment as to its acceptability.

This cannot happen in the case of the amendment in question. Prescinding already from the fact
that under Section 3 of the questioned resolution, it is evident that no fixed frame of reference is
provided the voter, as to what finally will be concomitant qualifications that will be required by
the final draft of the constitution to be formulated by the Convention of a voter to be able to
enjoy the right of suffrage, there are other considerations which make it impossible to vote
intelligently on the proposed amendment, although it may already be observed that under Section
3, if a voter would favor the reduction of the voting age to eighteen under conditions he feels are
needed under the circumstances, and he does not see those conditions in the ballot nor is there
any possible indication whether they will ever be or not, because Congress has reserved those for
future action, what kind of judgment can he render on the proposal?

But the situation actually before Us is even worse. No one knows what changes in the
fundamental principles of the constitution the Convention will be minded to approve. To be more
specific, we do not have any means of foreseeing whether the right to vote would be of any
significant value at all. Who can say whether or not later on the Convention may decide to
provide for varying types of voters for each level of the political units it may divide the country
into. The root of the difficulty in other words, lies in that the Convention is precisely on the
verge of introducing substantial changes, if not radical ones, in almost every part and aspect of
the existing social and political order enshrined in the present Constitution. How can a voter in
the proposed plebiscite intelligently determine the effect of the reduction of the voting age upon
the different institutions which the Convention may establish and of which presently he is not
given any idea?

We are certain no one can deny that in order that a plebiscite for the ratification of an amendment
to the Constitution may be validly held, it must provide the voter not only sufficient time but
ample basis for an intelligent appraisal of the nature of the amendment per se as well as its
relation to the other parts of the Constitution with which it has to form a harmonious whole. In
the context of the present state of things, where the Convention has hardly started considering the
merits of hundreds, if not thousands, of proposals to amend the existing Constitution, to present
to the people any single proposal or a few of them cannot comply with this requirement. We are
of the opinion that the present Constitution does not contemplate in Section 1 of Article XV a
plebiscite or "election" wherein the people are in the dark as to frame of reference they can base
their judgment on. We reject the rationalization that the present Constitution is a possible frame
of reference, for the simple reason that intervenors themselves are stating that the sole purpose of
the proposed amendment is to enable the eighteen year olds to take part in the election for the
ratification of the Constitution to be drafted by the Convention. In brief, under the proposed
plebiscite, there can be, in the language of Justice Sanchez, speaking for the six members of the
Court in Gonzales, supra, "no proper submission"

III
The Court has no desire at all to hamper and hamstring the noble work of the Constitutional
Convention. Much less does the Court want to pass judgment on the merits of the proposal to
allow these eighteen years old to vote. But like the Convention, the Court has its own duties to
the people under the Constitution which is to decide in appropriate oases with appropriate parties
whether or not the mandates of the fundamental law are being complied with. In the best light
God has given Us, we are of the conviction that in providing for the questioned plebiscite before
it has finished, and separately from, the whole draft of the constitution it has been called to
formulate, the Convention’s Organic Resolution No. 1 and all subsequent acts of the Convention
implementing the same violate the condition in Section 1, Article XV that there should only be
one "election" or plebiscite for the ratification of all the amendments the Convention may
propose. We are not denying any right of the people to vote on the proposed amendment; We are
only holding that under Section 1, Article XV of the Constitution, the same should be submitted
to them not separately from but together with all the other amendments to be proposed by this
present Convention.

IN VIEW OF ALL THE FOREGOING, the petition herein is granted. Organic Resolution No. 1
of the Constitutional Convention of 1971 and the implementing acts and resolutions of the
Convention, insofar as they provide for the holding of a plebiscite on November 8, 1971, as well
as the resolution of the respondent Comelec complying therewith (RR Resolution No. 695) are
hereby declared null and void. The respondents Comelec, Disbursing Officer, Chief Accountant
and Auditor of the Constitutional Convention are hereby enjoined from taking any action in
compliance with the said organic resolution. In view of the peculiar circumstances of this case,
the Court declares this decision immediately executory. No costs.
 [G.R. No. L-66088. January 25, 1984.]

ALEX G. ALMARIO, ISAGANI M. JUNGCO, ESTANISLAO L. CESA, JR.,

DORINTINO FLORESTA, FIDELA Y. VARGAS, ET AL., Petitioners, v. HON. MANUEL
ALBA and THE COMMISSION ON ELECTIONS, Respondents.

SYLLABUS

1. CONSTITUTIONAL LAW; PROPOSED AMENDMENTS TO THE 1973

CONSTITUTION; GRANT OF ALIENABLE LANDS OF THE PUBLIC DOMAIN AND
URBAN LAND REFORM; PROPOSALS BASED ON PRESENT CONSTITUTIONAL
PROVISIONS. — The present provisions of the Constitution are adequate to support any
program of the government for the grant of public lands to qualified and deserving citizens or for
the implementation of urban land reform. Homesteads and free patents are "grants." We likewise
see no constitutional infirmity to a law passed by the Batasang Pambansa, under the present
Constitution, that would grant alienable and disposable lands of the public domain not more than
twenty four (24) hectares to any qualified tenant, farmer, and other landless citizen in areas
reserved by the President, acting pursuant to such law.
RESOLUTION

GUTIERREZ, JR., J.:

As provided for in Batas Pambansa Blg. 643, the Filipino electorate will go to the polls on
January 27, 1984 to either approve or reject amendments to the Constitution proposed by
Resolution Nos. 104, 105, 110, 111, 112, and 113 of the Batasang Pambansa. The proposed
amendments are embodied in four (4) separate questions to be answered by simple YES or NO
answers.chanroblesvirtualawlibrary

Petitioners herein seek to enjoin the submission on January 27, 1984 of Question Nos. 3 and 4,
which cover Resolution Nos. 105 and 113, to the people for ratification or rejection on the
ground that there has been no fair and proper submission following the doctrine laid down in
Tolentino v. COMELEC (41 SCRA 707). The petitioners do not seek to prohibit the holding of
the plebiscite but only ask for more time for the people to study the meaning and implications of
Resolution Nos. 105 and 113 until the nature and effect of the proposals are fairly and properly
submitted to the electorate.

The questions to be presented to the electorate at the plebiscite are: chanrob1es virtual 1aw library

QUESTION NO. 3

Do you vote for the approval of amendments to the Constitution as proposed by the Batasang
Pambansa in Resolution Numbered 105 which, in substance, provide that grant shall be an
additional mode for the acquisition of lands belonging to the public domain and that the agrarian
reform program may include the grant or distribution of alienable lands of the public domain to
qualified tenants, farmers and other landless citizens.

QUESTION NO. 4

Do you vote for the approval of an amendment to the Constitution as proposed by the Batasang
Pambansa in its Resolution Numbered 113, adding the following paragraph to Section 12 of
Article XIV of the Constitution: jgc:chanrobles.com.ph

"The State shall moreover undertake an urban land reform and social housing program to provide
deserving landless, homeless or inadequately sheltered low income resident citizens reasonable
opportunity to acquire land and decent housing consistent with Section 2 of Article IV of this
Constitution."cralaw virtua1aw library

After a careful consideration of the issues raised in the petition for prohibition with preliminary
injunction, the answer of the Solicitor General, and the arguments of the parties during the
hearing on January 24, 1984, the COURT Resolved to DISMISS the petition for lack of merit.

Section 2, Article XVI of the Constitution which states: chanrob1es virtual 1aw library

x        x       x

SEC. 2. Any amendment to, or revision of, this Constitution shall be valid when ratified by a
majority of the votes cast in a plebiscite which shall be held not later than three months after the
approval of such amendment or revision.

allows a period of not more than three months for the conduct of information campaigns. The
sufficiency of the period during which amendments are submitted to the people before they vote
to either affirm or reject depends on the complexity and intricacy of the questions presented. The
petitioners have failed to show that the addition of the one word "grant" to Section 11, Article
XIV to make the provision read: jgc:chanrobles.com.ph

". . . nor may any citizen hold such (alienable) lands (of the public domain) by lease in excess of
five hundred hectares or acquire by purchase, homestead, or GRANT in excess of twenty four
hectares. . ."
cralaw virtua1aw library

or that the addition of two paragraphs including one on urban land reform to Section 12 of
Article XIV to make it read: chanrob1es virtual 1aw library

SEC. 12. The State shall formulate and implement an agrarian reform program aimed at
emancipating the tenant from the bondage of the soil and achieving the goals enunciated in this
Constitution.

"SUCH PROGRAM MAY INCLUDE THE GRANT OR DISTRIBUTION OF ALIENABLE

AND DISPOSABLE LANDS OF THE PUBLIC DOMAIN TO QUALIFIED TENANTS,
FARMERS AND OTHER LANDLESS CITIZENS IN AREAS WHICH THE PRESIDENT
MAY BY OR PURSUANT TO LAW RESERVE FROM TIME TO TIME, NOT EXCEEDING
THE LIMITATIONS FIXED IN ACCORDANCE WITH THE IMMEDIATELY PRECEDING
SECTION.

"THE STATE SHALL MOREOVER UNDERTAKE AN URBAN LAND REFORM AND

SOCIAL HOUSING PROGRAM TO PROVIDE DESERVING LANDLESS, HOMELESS OR
INADEQUATELY SHELTERED LOW INCOME RESIDENT CITIZENS REASONABLE
OPPORTUNITY TO ACQUIRE LAND AND DECENT HOUSING CONSISTENT WITH
SECTION 2 OF ARTICLE IV OF THIS CONSTITUTION." cralaw virtua1aw library

result in amendments of such nature that when the people go to the polls on January 27, 1984
they cannot arrive at an intelligent judgment on their acceptability or non-acceptability.

The present provisions of the Constitution are adequate to support any program of the
government for the grant of pub]ic lands to qualified and deserving citizens or for the
implementation of urban land reform. Homesteads and free patents are "grants." We likewise see
no constitutional infirmity to a law passed by the Batasang Pambansa, under the present
Constitution, that would grant alienable and disposable lands of the public domain not more than
twenty four (24) hectares to any qualified tenant, farmer, and other landless citizen in areas
reserved by the President, acting pursuant to such law. Nor is it correct to say that after the
agrarian land reform program now being implemented and the agitation for a similar program in
urban areas, the meaning of "urban land reform" is not yet understood. Questions No. 3 and No.
4, if ratified with an affirmative vote, will serve at most a symbolic purpose. That much the
Solicitor General conceded when he stated that the amendments under Question No. 3 serve to
confirm existing practice pursuant to long standing legislation. Any interpretation of "grant" will,
therefore, carry the weight of applicable precedents which surround the associated words
"homestead" and "purchase" in the same clause of the Constitution. Similarly, any legislation
laying down the rules on urban land reform will have to survive the constitutional tests of due
process, equal protection, police power, reasonable compensation, etc., now applied to agrarian
land reform.chanrobles virtual lawlibrary

More important, however, is that the necessity, expediency, and wisdom of the proposed
amendments are beyond the power of the courts to adjudicate. Precisely, whether or not "grant"
of public land and "urban land reform" are unwise or improvident or whether or not the proposed
amendments are unnecessary is a matter which only the people can decide. The questions are
presented for their determination. Assuming that a member or some members of this Court may
find undesirable any additional mode of disposing of public land or an urban land reform
program, the remedy is to vote "NO" in the plebiscite but not to substitute his or their aversion to
the proposed amendments by denying to the millions of voters an opportunity to express their
own likes or dislikes. The issue before us has nothing to do with the wisdom of the proposed
amendments, their desirability, or the danger of the power being abused. The issue is whether or
not the voters are aware of the wisdom, the desirability, or the dangers of abuse. The petitioners
have failed to make out a case that the average voter does not know the meaning of "grant" of
public land or of "urban land reform." cralaw virtua1aw library

As argued by the Solicitor-General: jgc:chanrobles.com.ph

"‘Agrarian reform program", for example, has been in the ‘consciousness of the Filipino people’,
to borrow a phrase from the petitioners, since 1972 with the passage of P.D. No. 27 (Oct. 21,
1972), emancipating our tenants and transferring to them ownership of the land they toil, without
mentioning the fact that even prior to this, there were several laws enacted attempting at land
reform, notably Rep. Act No. 3844 (1964), ordaining the agricultural Land Reform Code and
instituting land reforms in the country. More importantly and more to the point, ‘grant’ or ‘land
grant or distribution’ are subject matters that have been in the ‘consciousness’ of the Filipino
people since Commonwealth days, with the enactment of Commonwealth Act No. 141,
amending and compiling the previously scattered laws relative to the conservation and
disposition of lands of the public domain.

x        x       x

"Similarly, the Filipino people have long been since familiar with the topics of ‘urban land
reform’ and ‘social housing’, beginning perhaps with the country’s first zoning laws and,
through all these years, with such laws as Rep. Act No. 267 (1948), authorizing cities to purchase
or expropriate home sites and landed estates and subdivide them for resale at cost, P.D. No. 814
(1975), providing a land tenure system for the Tondo Foreshore Dagat-Dagatan Urban
Development Project, P.D. No. 933 (1976) creating the Human Settlement Commission ‘to bring
about the optimum use of land’, Rep. Act No. 1322 (1955) creating the Philippine Homesite and
Housing Authority, and P.D. No. 1517, proclaiming an urban land reform in the Philippines, to
give but a few samples. . . ."
cralaw virtua1aw library

Batas Pambansa Blg. 643 direct the COMELEC to publish the amendments. The respondents
assure us that publication in all provinces and cities, except a few where there are no local
newspapers, has been affected and that Barangays all over the country have been enjoined to
hold community gatherings for this purpose. The Integrated Bar of the Philippines and various
civic organizations have taken a strong stand for or against the last two proposed questions.
Television and radio programs regularly broadcast the amendments. The petitioners have failed
to explain why, inspite of all the above, there is still fair and proper submission.

On the bid for additional time, the respondents point out that Resolution No. 105 will have been
submitted for sixty seven (67) days to the people on Plebiscite Day while Resolution No. 113
will have been submitted for forty two (42) days. The entire 1935 Constitution was submitted for
ratification thirty six (36) days after approval of Act No. 4200. The 1976 amendments which
admittedly are much more complicated, difficult to understand, and novel and far-reaching in
their implications were presented to the people for only three (3) weeks. In Sanidad v.
Commission on Elections (73 SCRA 333, 375), this was how this Court answered the issue of
sufficient and proper submission:jgc:chanrobles.com.ph

"Upon the third issue, Chief Justice Castro and Associate Justices Barredo, Makasiar, Aquino,
Concepcion, Jr. and Martin are of the view that there is a sufficient and proper submission of the
proposed amendments for ratification by the people. Associate Justices Barredo and Makasiar
expressed the hope, however, that the period of time may be extended. Associate Justices
Fernando, Makasiar and Antonio are of the view that the question is political and therefore
beyond the competence and cognizance of this Court. Associate Justice Fernando adheres to his
concurrence in the opinion of Chief Justice Concepcion in Gonzales v. COMELEC (21 SCRA
774). Associate Justices Teehankee, and Muñoz Palma hold that prescinding from the President’s
lack of authority to exercise the constituent power to propose the amendments, etc., as above
stated, there is no fair and proper submission with sufficient information and time to assure
intelligent consent or rejection under the standards set by this Court in the controlling cases of
Gonzales, supra and Tolentino v. COMELEC (41 SCRA 702)." cralaw virtua1aw library

The undersigned ponente would like to add his personal views to this opinion of the Court. On
January 27, 1984, the average voter who goes to the polling place and reads Question No. 3 will
know whether or not he or she is in favor of distributing alienable public lands through "grants"
in addition to leases, homesteads and purchases. Upon reading Question No. 4, the voter will
know whether or not he or she is in favor of an urban land reform program. I personally find
existing provisions of the Constitution more than sufficient basis for legislation to achieve the
objectives of the proposed amendments. To me, the second question on the Vice-President vis-a-
vis the Executive Committee involves more complex and difficult issues involving as it does a
collegiate body as successor to the President. Yet, no one seems to question its fair and proper
submission. However, my personal feelings about the merits or demerits of the third and fourth
questions are entirely distinct and separate from the issue of their fair and proper submission to
the electorate. Like any other voter, my remedy is to vote NO on any proposal I find unwise or
ill-advised and YES on those I favor. I respect the views of those who may think differently.chanroblesvirtualawlibrary

WHEREFORE, the petition is DISMISSED for lack of merit.

SO ORDERED.
[G.R. No. L-10520. February 28, 1957.]

LORENZO M. TAÑADA and DIOSDADO MACAPAGAL, Petitioners, v. MARIANO JESUS CUENCO,

FRANCISCO A. DELGADO, ALFREDO CRUZ, CATALINA CAYETANO, MANUEL SERAPIO, PLACIDO REYES,
and FERNANDO HIPOLITO, in his capacity as cashier and disbursing officer, Respondents.

SYLLABUS

1. CONSTITUTIONAL LAW; SELECTION OF MEMBERS OF THE SENATE ELECTORAL

TRIBUNAL; NATURE OF TRIBUNAL. — Although the Constitution provides that the Senate
shall choose six (6) Senators to be members of the Senate Electoral Tribunal, the letter is part
neither of Congress nor of the Senate. (Angara v. Electoral Commission, 63 Phil., 139; Suanes v.
Chief Accountant, 81 Phil., 818; 46 Off. Gaz., 462.)

2. ID.; ID.; MEANING OF "POLITICAL QUESTION" ; CASE AT BAR. — The term "political
question" connotes, in legal parlance, what it means in ordinary parlance, namely, a question of
policy. It refers to those questions which, under the Constitution, are to be decided by the people
in their sovereign capacity, or in regard to which full discretionary authority has been delegated
to the Legislature or executive branch of the Government (16 C. J. S., 413). It is concerned with
issues dependent upon the wisdom, not legality, of a particular measure. In the case at bar, the
question for determination is whether the election of two senators, by the Senate, as members of
the Senate Electoral Tribunal, upon nomination by another senator, who is a member and
spokesman of the party having the largest number of votes in the Senate, on behalf of its
Committee on Rules, contravenes the constitutional mandate that said members of the tribunal
shall be chosen "upon nomination *** of the party having the second largest number of votes" in
the Senate, and hence, is null and void. This is not a political question. The Senate is not clothed
with "full discretionary authority" in the choice of members of the Senate Electoral Tribunal. The
exercise of its power thereon is subject to constitutional limitations. It is clearly within the
legitimate province of the judicial department to pass upon the validity of the proceedings in
connection therewith. Hence, this Court has, not only jurisdiction, but, also the duty, to consider
and determine the principal issue raised by the parties herein.
DECISION
 CONCEPCION, J.:

Petitioner Lorenzo M. Tañada is a member of the Senate of the Philippines, and President of the
Citizens Party, whereas petitioner Diosdado Macapagal, a member of the House of
Representatives of the Philippines, was one of the official candidates of the Liberal Party for the
Senate, at the general elections held in November, 1955, in which Pacita Madrigal Warns,
Lorenzo Sumulong, Quintin Paredes, Francisco Rodrigo, Pedro Sabido, Claro M. Recto,
Domocao Alonto and Decoroso Rosales, were proclaimed elected. Subsequently, the election of
these Senators-elect — who eventually assumed their respective seats in the Senate — was
contested by petitioner Macapagal, together with Camilo Osias, Geronima Pecson, Macario
Peralta, Enrique Magalona, Pio Pedrosa and William Chiongbian — who had, also, run for the
Senate, in said election — in Senate Electoral Case No. 4, now pending before the Senate
Electoral Tribunal.

The Senate, in its session of February 22, 1956, upon nomination of Senator Cipriano Primicias,
on behalf of the Nacionalista Party, chose Senators Jose P. Laurel, Fernando Lopez and Cipriano
Primicias, as members of the Senate Electoral Tribunal. Upon nomination of petitioner Senator
Tañada, on behalf of the Citizens Party, said petitioner was next chosen by the Senate as member
of said Tribunal. Then, upon nomination of Senator Primicias, on behalf of the Committee on
Rules of the Senate, and over the objections of Senators Tañada and Sumulong, the Senate
choose respondents Senators Mariano J. Cuenco and Francisco A. Delgado as members of the
same Electoral Tribunal. Subsequently, the Chairman of the latter appointed: (1) Alfredo Cruz
and Catalina Cayetano, as technical assistant and private secretary, respectively, to Senator
Cuenco, as supposed member of the Senate Electoral Tribunal, upon his recommendation of said
respondents; and (2) Manuel Serapio and Placido Reyes, as technical assistant and private
secretary, respectively to Senator Delgado, as supposed member of said Electoral Tribunal, and
upon his recommendation.

Soon, thereafter, Senator Lorenzo M. Tañada and Congressman Diosdado Macapagal instituted
the case at bar against Senators Cuenco and Delgado, and said Alfredo Cruz, Catalina Cayetano,
Manuel Serapio and Placido Reyes, as well as Fernando Hipolito, in his capacity as Cashier and
Disbursing Officer of the Senate Electoral Tribunal. Petitioners allege that on February 22, 1956,
as well as at present, the Senate consists of 23 Senators who belong to the Nacionalista Party,
and one (1) Senator — namely, Petitioner, Lorenzo M. Tañada — belonging to the Citizens
Party; that the Committee on Rules for the Senate, in nominating Senators Cuenco and Delgado,
and the Senate, in choosing these respondents, as members of the Senate Electoral Tribunal, had
"acted absolutely without power or color of authority and in clear violation . . . of Article VI,
Section 11 of the Constitution" ; that "in assuming membership in the Senate Electoral Tribunal,
by taking the corresponding oath of office therefor", said respondents had "acted absolutely
without color of appointment or authority and are unlawfully, and in violation of the
Constitution, usurping, intruding into and exercising the powers of members of the Senate
Electoral Tribunal" ; that, consequently, the appointments of respondents, Cruz, Cayetano,
Serapio and Reyes, as technical assistants and private secretaries to Senators Cuenco and
Delgado — who caused said appointments to be made — as members of the Senate Electoral
Tribunal, are unlawful and void; and that Senators Cuenco and Delgado "are threatening and are
about to take cognizance of Electoral Case No. 4 of the Senate Electoral Tribunal, as alleged
members thereof, in nullification of the rights of petitioner Lorenzo M. Tañada, both as a Senator
belonging to the Citizens Party and as representative of the Citizens Party in the Senate Electoral
Tribunal, and in deprivation of the constitutional rights of petitioner Diosdado Macapagal and his
co-protestants to have their election protest tried and decided by an Electoral Tribunal composed
of not more than three (3) senators chosen by the Senate upon nomination of the party having the
largest number of votes in the Senate and not more than three (3) Senators upon nomination of
the party having the second largest number of votes therein, together with three (3) Justices of
the Supreme Court to be designated by the Chief Justice, instead of by an Electoral Tribunal
packed with five members belonging to the Nacionalista Party, which is the rival party of the
Liberal Party, to which the petitioner Diosdado Macapagal and his co-protestants in Electoral
Case No. 4 belong, the said five (5) Nacionalista Senators having been nominated and chosen in
the manner alleged . . . herein- above." cralaw virtua1aw library

Petitioners pray that: jgc:chanrobles.com.ph

"1. Upon petitioners’ filing of a bond in such amount as may be determined by this Honorable
Court, a writ of preliminary injunction be immediately issued directed to respondents Mariano J.
Cuenco, Francisco A. Delgado, Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido
Reyes, restraining them from continuing to usurp, intrude into and/or hold or exercise the said
public offices respectively being occupied by them in the Senate Electoral Tribunal, and to
respondent Fernando Hipolito restraining him from paying the salaries of respondents Alfredo
Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes, pending this action.

"2. After hearing, judgment be rendered ousting respondents Mariano J. Cuenco, Francisco A.
Delgado, Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes from the
aforementioned public offices in the Senate Electoral Tribunal and that they be altogether
excluded therefrom and making the preliminary injunction permanent, with costs against the
respondents." cralaw virtua1aw library

Respondents have admitted the main allegations of fact in the petition, except insofar as it
questions the legality and validity of the election of respondents Senators Cuenco and Delgado,
as members of the Senate Electoral Tribunal, and of the appointment of respondent Alfredo
Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes as technical assistants and private
secretaries to said respondents Senators. Respondents, likewise, allege, by way of special and
affirmative defenses, that: (a) this Court is without power, authority of jurisdiction to direct or
control the action of the Senate in choosing the members of the Electoral Tribunal; and (b) that
the petition states no cause of action, because "petitioner Tañada has exhausted his right to
nominate after he nominated himself and refused to nominate two (2) more Senators", because
said petitioner is in estoppel, and because the present action is not the proper remedy.

I. Respondents assail our jurisdiction to entertain the petition, upon the ground that the power to
choose six (6) Senators as members of the Senate Electoral Tribunal has been expressly
conferred by the Constitution upon the Senate, despite the fact that the draft submitted to the
constitutional convention gave to the respective political parties the right to elect their respective
representatives in the Electoral Commission provided for in the original Constitution of the
Philippines, and that the only remedy available to petitioners herein "is not in the judicial forum",
but "to bring the matter to the bar of public opinion." cralaw virtua1aw library

We cannot agree with the conclusion drawn by respondents from the foregoing facts. To begin
with, unlike the cases of Alejandrino v. Quezon (46 Phil., 83) and Vera v. Avelino (77 Phil., 192)
— relied upon by the respondents — this is not an action against the Senate, and it does not seek
to compel the latter, either directly or indirectly, to allow the petitioners to perform their duties as
members of said House. Although the Constitution provides that the Senate shall choose six (6)
Senators to be members of the Senate Electoral Tribunal, the latter is part neither of Congress
nor of the Senate. (Angara v. Electoral Commission, 63 Phil., 139; Suanes v. Chief Accountant,
81 Phil., 818; 46 Off. Gaz., 462.)

Secondly, although the Senate has, under the Constitution, the exclusive power to choose the
Senators who shall form part of the Senate Electoral Tribunal, the fundamental law has
prescribed the manner in which the authority shall be exercised. As the author of a very
enlightening study on judicial self-limitation has aptly put it: jgc:chanrobles.com.ph

"The courts are called upon to say, on the one hand, by whom certain powers shall be exercised,
and on the other hand, to determine whether the powers thus possessed have been validly
exercised. In performing the latter function, they do not encroach upon the powers of a
coordinate branch of the government, since the determination of the validity of an act is not the
same thing as the performance of the act. In the one case we are seeking to ascertain upon whom
devolves the duty of the particular service. In the other case we are merely seeking to determine
whether the Constitution has been violated by anything done or attempted by either an executive
official or the legislative." (Judicial Self-Limitation by Finkelstein, pp. 221, 224, 244, Harvard
Law Review, Vol. 39; Emphasis supplied.)

The case of Suanes v. Chief Accountant (supra) cited by respondents refutes their own pretense.
This Court exercised its jurisdiction over said case and decided the same on the merits thereof,
despite the fact that it involved an inquiry into the powers of the Senate and its President over the
Senate Electoral Tribunal and the personnel thereof.

Again, under the Constitution, "the legislative power" is vested exclusively in the Congress of
the Philippines. Yet, this does not detract from the power of the courts to pass upon the
constitutionality of acts of Congress 1 And, since judicial power includes the authority to inquire
into the legality of statutes enacted by the two Houses of Congress, and approved by the
Executive, there can be no reason why the validity of an act of one of said Houses, like that of
any other branch of the Government, may not be determined in the proper actions. Thus, in the
exercise of the so- called "judicial supremacy", this Court declared that a resolution of the
defunct National Assembly could not bar the exercise of the powers of the former Electoral
Commission under the original Constitution. 2 (Angara v. Electoral Commission, supra), and
annulled certain acts of the Executive 3 as incompatible with the fundamental law.

In fact, whenever the conflicting claims of the parties to a litigation cannot properly be settled
without inquiring into the validity of an act of Congress or of either House thereof, the courts
have, not only jurisdiction to pass upon said issue, but, also, the duty to do so, which cannot be
evaded without violating the fundamental law and paving the way to its eventual destruction. 4

Neither are the cases of Mabanag v. Lopez Vito (78 Phil., 1) and Cabili v. Francisco (88 Phil.,
654), likewise, invoked by respondents, in point. In the Mabanag case, it was held that the courts
could not review the finding of the Senate to the effect that the members thereof who had been
suspended by said House should not be considered in determining whether the votes cast therein,
in favor of a resolution proposing an amendment to the Constitution, sufficed to satisfy the
requirements of the latter, such question being a political one. The weight of this decision, as a
precedent, has been weakened, however, by our resolutions in Avelino v. Cuenco (83 Phil., 17),
in which this Court proceeded to determine the number essential to constitute a quorum in the
Senate. Besides, the case at bar does not hinge on the number of votes needed for a particular act
of said body. The issue before us is whether the Senate — after acknowledging that the Citizens
Party is the party having the second largest number of votes in the Senate, to which party the
Constitution gives the right to nominate three (3) Senators for the Senate Electoral Tribunal —
could validly choose therefor two (2) Nacionalista Senators, upon nomination by the floor leader
of the Nacionalista Party in the Senate, Senator Primicias, claiming to act on behalf of the
Committee on Rules for the Senate.

The issue in the Cabili case was whether we could review a resolution of the Senate reorganizing
its representation in the Commission on Appointments. This was decided in the negative, upon
the authority of Alejandrino v. Quezon (supra) and Vera v. Avelino (supra), the main purpose of
the petition being "to force upon the Senate the reinstatement of Senator Magalona in the
Commission on Appointments," one-half (1/2) of the members of which is to be elected by each
House on the basis of proportional representation of the political parties therein. Hence, the issue
depended mainly on the determination of the political alignment of the members of the Senate at
the time of said reorganization and of the necessity or advisability of effecting said
reorganization, which is a political question. We are not called upon, in the case at bar, to pass
upon an identical or similar question, it being conceded, impliedly, but clearly, that the Citizens
Party is the party with the second largest number of votes in the Senate. The issue, therefore, is
whether a right vested by the Constitution in the Citizens Party may validly be exercised, either
by the Nacionalista Party, or by the Committee on Rules for the Senate, over the objection of
said Citizens Party.

The only ground upon which respondents’ objection to the jurisdiction of this Court and their
theory to the effect that the proper remedy for petitioners herein is, not the present action, but an
appeal to public opinion, could possibly be entertained is, therefore, whether the case at bar
raises merely a political question, not one justiciable in nature.

In this connection, respondents assert in their answer that "the remedy of petitioners is not in the
judicial forum, but, to use petitioner Tañada’s own words, ‘to bring the matter to the bar of
public opinion’ (p. 81, Discussion on the Creation of the Senate Electoral Tribunal, February 21,
1956)." This allegation may give the impression that said petitioner had declared, on the floor of
the Senate, that his only relief against the acts complained of in the petition is to take up the issue
before the people — which is not a fact. During the discussions in the Senate, in the course of the
organization of the Senate Electoral Tribunal, on February 21, 1956, Senator Tañada was asked
what remedies he would suggest if he nominated two (2) Nacionalista Senators and the latter
declined the nomination. Senator Tañada replied: jgc:chanrobles.com.ph

"There are two remedies that occur to my mind right now, Mr. Senator; one is the remedy open
to all of us that if we feel aggrieved and there is no recourse in the court of justice, we can appeal
to public opinion. Another remedy is an action in the Supreme Court. Of course, as Senator
Rodriguez, our President here, has said one day; ‘If you take this matter to the Supreme Court,
you will lose, because until now the Supreme Court has always ruled against any action that
would constitute interference in the business of anybody pertaining to the Senate. The theory of
separation of powers will be upheld by the Supreme Court.’ But that learned opinion of Senator
Rodriguez, our President, notwithstanding, I may take the case to the Supreme Court if my right
herein is not respected. I may lose, Mr. President, but who has not lost in the Supreme Court? I
may lose because of the theory of the separation of powers, but that does not mean, Mr.
President, that what has been done here is pursuant to the provision of the Constitution."
(Congressional Record, Vol. III, p. 339; Emphasis supplied.)

This statement did not refer to the nomination, by Senator Primicias, and the election, by the
Senate, of Senators Cuenco and Delgado as members of said Tribunal. Indeed, said nomination
and election took place the day after the aforementioned statement of Senator Tañada was made.
At any rate, the latter announced that he might "take the case to the Supreme Court if my right
here is not respected."cralaw virtua1aw library

As already adverted to, the objection to our jurisdiction hinges on the question whether the issue
before us is political or not. In this connection, Willoughby lucidly states:jgc:chanrobles.com.ph

"Elsewhere in this treatise the well-known and well-established principle is considered that it is
not within the province of the courts to pass judgment upon the policy of legislative or executive
action. Where, therefore, discretionary powers are granted by the Constitution or by statute, the
manner in which those powers are exercised is not subject to judicial review. The courts,
therefore, concern themselves only with the question as to the existence and extent of these
discretionary powers.

"As distinguished from the judicial, the legislative and executive departments are spoken of as
the political departments of government because in very many cases their action is necessarily
dictated by considerations of public or political policy. These considerations of public or political
policy of course will not permit the legislature to violate constitutional provisions, or the
executive to exercise authority not granted him by the Constitution or by statute, but, within
these limits, they do permit the departments, separately or together, to recognize that a certain set
of facts exists or that a given status exists, and these determinations, together with the
consequences that flow therefrom, may not be traversed in the courts." (Willoughby on the
Constitution of the United States, Vol. 3, p. 1326; emnphasis supplied.)

To the same effect is the language used in Corpus Juris Secundum, from which we quote: jgc:chanrobles.com.ph

"It is well-settled doctrine that political questions are not within the province of the judiciary,
except to the extent that power to deal with such questions has been conferred upon the courts by
express constitutional or statutory provisions.

"It is not easy, however, to define the phrase ‘political question’, nor to determine what matters
fall within its scope. It is frequently used to designate all questions that lie outside the scope of
the judicial questions, which under the constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary authority has been delegated to the
legislative or executive branch of the government." (16 C.J.S., 413; see, also Geauga Lake
Improvement Ass’n. v. Lozier, 182 N. E. 491, 125 Ohio St. 565; Sevilla v. Elizalde, 112 F. 2d
29, 72 App. D. C., 108; Emphasis supplied.)

Thus, it has been repeatedly held that the question whether certain amendments to the
Constitution are invalid for non-compliance with the procedure therein prescribed, is not a
political one and may be settled by the Courts. 5

In the case of In re McConaughy (119 N.W. 408), the nature of political question was considered
carefully. The Court said: jgc:chanrobles.com.ph

"At the threshold of the case we are met with the assertion that the questions involved are
political, and not judicial. If this is correct, the court has no jurisdiction as the certificate of the
state canvassing board would then be final, regardless of the actual vote upon the amendment.
The question thus raised is a fundamental one; but it has been so often decided contrary to the
view contended for by the Attorney General that it would seem to be finally settled.

x        x       x

". . . What is generally meant, when it is said that a question is political, and not judicial, is that it
is a matter which is to be exercised by the people in their primary political capacity, or that it has
been specifically delegated to some other department or particular officer of the government,
with discretionary power to act. See State v. Cunningham, 81 Wis. 497, 51 L. R. A. 561; In Re
Gunn, 50 Kan. 155; 32 Pac. 470, 948, 19 L. R. A. 519; Green v. Mills, 69 Fed. 852, 16, C. C. A.
516, 30 L. R. A. 90; Fletcher v. Tuttle, 151 Ill. 41, 37 N. E. 683, 25 L. R. A. 143, 42 Am. St.
Rep. 220. Thus the Legislature may in its discretion determine whether it will pass a law or
submit a proposed constitutional amendment to the people. The courts have no judicial control
over such matters, not merely because they involve political question, but because they are
matters which the people have by the Constitution delegated to the Legislature. The Governor
may exercise the powers delegated to him, free from judicial control, so long as he observes the
laws and acts within the limits of the power conferred. His discretionary acts cannot be
controllable, not primarily because they are of a political nature, but because the Constitution and
laws have placed the particular matter under his control. But every officer under a constitutional
government must act according to law and subject him to the restraining and controlling power
of the people, acting through the courts, as well as through the executive or the Legislature. One
department is just as representative as the other, and the judiciary is the department which is
charged with the special duty of determining the limitations which the law places upon all
official action. The recognition of this principle, unknown except in Great Britain and America,
is necessary, to ‘the end that the government may be one of laws and not men’ — words which
Webster said were the greatest contained in any written constitutional document." (pp. 411, 417;
Emphasis supplied.)

In short, the term "political question" connotes, in legal parlance, what it means in ordinary
parlance, namely, a question of policy. In other words, in the language of Corpus Juris
Secundum (supra), it refers to "those questions which, under the Constitution, are to be decided
by the people in their sovereign capacity, or in regard to which full discretionary authority has
been delegated to the Legislature or executive branch of the Government." It is concerned with
issues dependent upon the wisdom, not legality, of a particular measure.

Such is not the nature of the question for determination in the present case. Here, we are called
upon to decide whether the election of Senators Cuenco and Delgado, by the Senate, as members
of the Senate Electoral Tribunal, upon nomination by Senator Primicias — a member and
spokesman of the party having the largest number of votes in the Senate — on behalf of its
Committee on Rules, contravenes the constitutional mandate that said members of the Senate
Electoral Tribunal shall be chosen "upon nomination . . . of the party having the second largest
number of votes" in the Senate, and hence, is null and void. This is not a political question. The
Senate is not clothed with "full discretionary authority" in the choice of members of the Senate
Electoral Tribunal. The exercise of its power thereon is subject to constitutional limitations
which are claimed to be mandatory in nature. It is clearly within the legitimate province of the
judicial department to pass upon the validity of the proceedings in connection therewith.

". . . whether an election of public officers has been in accordance with law is for the judiciary.
Moreover, where the legislative department has by statute prescribed election procedure in a
given situation, the judiciary may determine whether a particular election has been in conformity
with such statute, and, particularly, whether such statute has been applied in a way to deny or
transgress on constitutional or statutory rights . . ." (16 C. J. S., 439; Emphasis supplied.)

It is, therefore, our opinion that we have, not only jurisdiction, but, also, the duty, to consider and
determine the principal issue raised by the parties herein.

II. Is the election of Senators Cuenco and Delgado, by the Senate, as members of the Electoral
Tribunal, valid and lawful?

Section 11 of Article VI of the Constitution, reads: jgc:chanrobles.com.ph

"The Senate and the House of Representatives shall each have an Electoral Tribunal which shall
be the sole judge of all contests relating to the election, returns, and qualifications of their
respective Members. Each Electoral Tribunal shall be composed of nine Members, three of
whom shall be Justices of the Supreme Court to be designated by the Chief Justice, and the
remaining six shall be Members of the Senate or of the House of Representatives, as the case
may be, who shall be chosen by each House, three upon nomination of the party having the
largest number of votes and three of the party having the second largest number of votes therein.
The Senior Justice in each Electoral Tribunal shall be its Chairman." (Emphasis supplied.)

It appears that on February 22, 1956, as well as at present, the Senate of the Philippines consists
of twenty-three (23) members of the Nacionalista Party and one (1) member of the Citizens
Party, namely, Senator Tañada, who is, also, the president of said party. In the session of the
Senate held on February 21, 1956, Senator Sabido moved that Senator Tañada, "the President of
the Citizens Party, be given the privilege to nominate . . . three (3) members" of the Senate
Electoral Tribunal (Congressional Record for the Senate, Vol. III, pp. 328-329), referring to
those who, according to the provision above-quoted, should be nominated by "the party having
the second largest number of votes" in the Senate. Senator Tañada objected formally to this
motion upon the ground: (a) that the right to nominate said members of the Senate Electoral
Tribunal belongs, not to the Nacionalista Party — of which Senator Sabido and the other
Senators are members — but to the Citizens Party, as the one having the second largest number
of votes in the Senate, so that, being devoid of authority to nominate the aforementioned
members of said Tribunal, the Nacionalista Party cannot give it to the Citizens Party, which,
already, has such authority, pursuant to the Constitution; and (b) that Senator Sabido’s motion
would compel Senator Tañada to nominate three (3) Senators to said Tribunal, although as
representative of the minority party in the Senate he has "the right to nominate one, two or three
to the Electoral Tribunal," in his discretion. Senator Tañada further stated that he reserved the
right to determine how many he would nominate, after hearing the reasons of Senator Sabido in
support of his motion. After some discussion, in which Senators Primicias, Cea, Lim, Sumulong,
Zulueta, and Rodrigo took part, the Senate adjourned until the next morning, February 22, 1956
(Do., do., pp. 329, 330, 332-333, 336, 338, 339, 343).

Then, said issues were debated upon more extensively, with Senator Sumulong, not only
seconding the opposition of Senator Tañada, but, also, maintaining that "Senator Tañada should
nominate only one" member of the Senate, namely, himself, he being the only Senator who
belongs to the minority party in said House (Do., do., pp. 360-364, 369). Thus, a new issue was
raised — whether or not one who does not belong to said party may be nominated by its
spokesman, Senator Tañada — on which Senators Paredes, Pelaez, Rosales and Laurel, as well
as the other Senators already mentioned, expressed their views (Do., do., pp. 345, 349, 350, 354,
358, 364, 375). Although the deliberations of the Senate consumed the whole morning and
afternoon of February 22, 1956, a satisfactory solution of the question before the Senate
appeared to be remote. So, at 7:40 p. m., the meeting was suspended, on motion of Senator
Laurel, with a view to seeking a compromise formula (Do., do., pp. 377). When session was
resumed at 8:10 p. m., Senator Sabido withdrew his motion above referred to. Thereupon,
Senator Primicias, on behalf of the Nacionalista Party, nominated, and the Senate elected,
Senators Laurel, Lopez and Primicias, as members of the Senate Electoral Tribunal.
Subsequently, Senator Tañada stated: jgc:chanrobles.com.ph

"On behalf of the Citizens Party, the minority party in this Body, I nominate the only Citizens
Party member in this Body, and that is Senator Lorenzo M. Tañada." cralaw virtua1aw library

Without any objection, this nomination was approved by the House. Then, Senator Primicias
stood up and said:jgc:chanrobles.com.ph

"Now, Mr. President, in order to comply with the provision in the Constitution, the Committee
on Rules of the Senate — and I am now making this proposal not on behalf of the Nacionalista
Party but on behalf of the Committee on Rules of the Senate — I nominate two other members to
complete the membership of the Tribunal: Senators Delgado and Cuenco." cralaw virtua1aw library
What took place thereafter appears in the following quotations from the Congressional Record
for the Senate.

"SENATOR TAÑADA. Mr. President.

"EL PRESIDENTE INTERINO. Caballero de Quezon.

SENATOR TAÑADA. I would like to record my opposition to the nominations of the last two
named gentlemen, Senators Delgado and Cuenco, not because I don’t believe that they do not
deserve to be appointed to the tribunal but because of my sincere and firm conviction that these
additional nominations are not sanctioned by the Constitution. The Constitution only permits the
Nacionalista Party or the party having the largest number of votes to nominate three.

"SENATOR SUMULONG. Mr. President.

"EL PRESIDENTE INTERINO. Caballero de Rizal.

"SENATOR SUMULONG. For the reasons that I have stated a few moments ago when I took
the floor, I also wish to record my objection to the last nominations, to the nomination of two
additional NP’s to the Electoral Tribunal.

EL PRESIDENTE INTERINO. Esta dispuesto el Senado a votar? (Varios Senadores: Si.) Los
que esten conformes con la nominacion hecha por el Presidente del Comite de Reglamentos a
favor de los Senadores Delgado y Cuenco para ser miembros del Tribunal Electoral, digan, si.
(Varios Senodores: Si.) Los que no lo esten digan, no (Silencio.) Queda aprobada."
(Congressional Record for the Senate, Vol. III, p. 377; Italics supplied.)

Petitioners maintain that said nomination and election of Senators Cuenco and Delgado — who
belong to the Nacionalista Party — as members of the Senate Electoral Tribunal, are null and
void and have been made without power or color of authority, for, after the nomination by said
party, and the election by the Senate, of Senators Laurel, Lopez and Primicias, as members of
said Tribunal, the other Senators, who shall be members thereof, must necessarily be nominated
by the party having the second largest number of votes in the Senate, and such party is,
admittedly, the Citizens Party, to which Senator Tañada belongs and which he represents.

Respondents allege, however, that the constitutional mandate to the effect that "each Electoral
Tribunal shall be composed of nine (9) members," six (6) of whom "shall be members of the
Senate or of the House of Representatives, as the case may be", is mandatory; that when — after
the nomination of three (3) Senators by the majority party, and their election by the Senate, as
members of the Senate Electoral Tribunal — Senator Tañada nominated himself only, on behalf
of the minority party, he thereby "waived his right to nominate two more Senators;" that, when
Senator Primicias nominated Senators Cuenco and Delgado, and these respondents were chosen
by the Senate, as members of the Senate Electoral Tribunal, said Senator Primicias and the
Senate merely complied with the aforementioned provision of the fundamental law, relative to
the number of members of the Senate Electoral Tribunal; and, that, accordingly, Senators Cuenco
and Delgado are de jure members of said body, and the appointment of their co-respondents,
Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes, is valid and lawful.

At the outset, it will be recalled that the proceedings for the organization of the Senate Electoral
Tribunal began with a motion of Senator Sabido to the effect that "the distinguished gentleman
from Quezon, the President of the Citizens Party, be given the privilege to nominate the three
Members" of said Tribunal. Senator Primicias inquired why the movant had used the word
"privilege." Senator Sabido explained that the present composition of the Senate had created a
condition or situation which was not anticipated by the framers of our Constitution; that although
Senator Tañada formed part of the Nacionalista Party before the end of 1955, he subsequently
"parted ways with" said party; and that Senator Tañada "is the distinguished president of the
Citizens Party," which "approximates the situation desired by the framers of the Constitution"
(Congressional Record for the Senate Vol. III, pp. 329-330). Then Senator Lim intervened,
stating:
jgc:chanrobles.com.ph

"At present Senator Tañada is considered as forming the only minority or the one that has the
second largest number of votes in the existing Senate, is not that right? And if this is so, he
should be given this as a matter of right, not as a matter of privilege. . . . I don’t believe that we
should be allowed to grant this authority to Senator Tañada only as a privilege but we must grant
it as a matter of right." (Id., id., p. 332; Emphasis supplied.)

Similarly, Senator Sumulong maintained that "Senator Tañada, as Citizens Party Senator, has the
right and not a mere privilege to nominate," adding that: jgc:chanrobles.com.ph

". . . the question is whether we have a party here having the second largest number of votes, and
it is clear in my mind that there is such a party, and that is the Citizens Party to which the
gentleman from Quezon belongs. . . . We have to bear in mind, . . . that when Senator Tañada
was included in the Nacionalista Party ticket in 1953 it was by virtue of a coalition or an alliance
between the Citizens Party and the Nacionalista Party at that time, and I maintain that when
Senator Tañada as head of the Citizens Party entered into a coalition with the Nacionalista Party,
he did not thereby become a Nacionalista because that was a mere coalition, not a fusion. When
the Citizens Party entered into a mere coalition, that party did not lose its personality as a party
separate and distinct from the Nacionalista. Party. And we should also remember that the
certificate of candidacy filed by Senator Tañada in the 1953 election was one to the effect that he
belonged to the Citizens Party . . . ." (Id., id., p. 360; Emphasis supplied.)

The debate was closed by Senator Laurel, who remarked, referring to Senator Tañada: jgc:chanrobles.com.ph

". . . there is no doubt that he does not belong to the majority in the first place, and that,
therefore, he belongs to the minority. And whether we like it or not, that, is the reality of the
actual situation — that he is not a Nacionalista now, that he is the head and the representative of
the Citizens Party. I think that on equitable ground and from the point of view of public opinion,
his situation . . . approximates or approaches what is within the spirit of that Constitution. . . . and
from the point of view of the spirit of the Constitution it would be a good thing if we grant the
opportunity to Senator Tañada to help us in the organization of this Electoral Tribunal . . . ." (Id.,
id., p. 376; Emphasis supplied.)
The foregoing statements and the fact that, thereafter, Senator Sabido withdrew his motion to
grant Senator Tañada the "privilege" to nominate, and said petitioner actually nominated himself
"on behalf of the Citizens Party, the minority party in this Body" — not only without any
objection whatsoever, but, also, with the approval of the Senate — leave no room for doubt that
the Senate has regarded the Citizens Party, represented by Senator Tañada, as the party having
the second largest number of votes in said House.

Referring, now, to the contention of respondents herein, their main argument in support of the
mandatory character of the constitutional provision relative to the number of members of the
Senate Electoral Tribunal is that the word "shall", therein used, is imperative in nature and that
this is borne out by an opinion of the Secretary of Justice dated February 1, 1939, pertinent parts
of which are quoted at the footnote. 6

Regardless of the respect due its author, as a distinguished citizen and public official, said
opinion has little, if any, weight in the solution of the question before this Court, for the
"practical construction of a Constitution is of little, if any, unless it has been uniform . . . ." 6
Again, "as a general rule, it is only in cases of substantial doubt and ambiguity that the doctrine
of contemporaneous or practical construction has any application." As a consequence, "where the
meaning of a constitutional provision is clear, a contemporaneous or practical . . . executive
interpretation thereof is entitled to no weight, and will not be allowed to distort or in any way
change its natural meaning." The reason is that "the application of the doctrine of
contemporaneous construction is more restricted as applied to the interpretation of constitutional
provisions than when applied to statutory provisions", and that, "except as to matters committed
by the Constitution itself to the discretion of some other department, contemporary or practical
construction is not necessarily binding upon the courts, even in a doubtful case." Hence, "if in the
judgment of the court, such construction is erroneous and its further application is not made
imperative by any paramount considerations of public policy, it may be rejected." (16 C. J. S.,
71-72; Italics supplied.) 6

The aforementioned opinion of the Secretary of Justice is not backed up by a "uniform"

application of the view therein adopted, so essential to give thereto the weight accorded by the
rules on contemporaneous constructions. Moreover, said opinion tends to change the natural
meaning of section 11 of Article VI of the Constitution, which is clear. What is more, there is not
the slightest doubt in our mind that the purpose and spirit of said provisions do not warrant said
change and that the rejection of the latter is demanded by paramount considerations of public
policy.

The flaw in the position taken in said opinion and by respondents herein is that, while, it relies
upon the compulsory nature of the word "shall", as regards the number of members of the
Electoral Tribunals, it ignores the fact that the same term is used with respect to the method
prescribed for their election, and that both form part of a single sentence and must be considered,
therefore, as integral portions of one and the same thought. Indeed, respondents have not even
tried to show — and we cannot conceive — why "shall" must be deemed mandatory insofar as
the number of members of each Electoral Tribunal, and should be considered directory as
regards the procedure for their selection. More important still, the history of section 11 of Article
VI of the Constitution and the records of the Convention, refute respondents’ pretense, and back
up the theory of petitioners herein.

Commenting on the frame of mind of the delegates to the Constitutional Convention, when they
faced the task of providing for the adjudication of contests relating to the election, returns and
qualifications of members of the Legislative Department, Dr. Jose M. Aruego, a member of said
Convention, says: jgc:chanrobles.com.ph

"The experience of the Filipino people under the provisions of the organic laws which left to the
lawmaking body the determination of the elections, returns, and qualifications of its members
was not altogether satisfactory. There were many complaints against the lack of political justice
in this determination; for in a great number of cases, party interests controlled and dictated the
decisions. The undue delay in the dispatch of election contests for legislative seats, the
irregularities that characterized the proceedings in some of them, and the very apparent injection
of partisanship in the determination of a great number of the cases were decried by a great
number of the people as well as by the organs of public opinion.

"The faith of the people in the uprightness of the lawmaking body in the performance of this
function assigned to it in the organic laws was by no means great. In fact so blatant was the lack
of political justice in the decisions that there was gradually built up a camp of thought in the
Philippines inclined to leave to the courts the determination of election contests, following the
practice in some countries, like England and Canada.

"Such were the conditions of things at the time of the meeting of the convention." (The Framing
of the Philippine Constitution by Aruego, Vol. I, pp. 257-258; Emphasis supplied.)

This view is shared by distinguished members of the Senate. Thus, in its session of February 22,
1956, Senator Sumulong declared: jgc:chanrobles.com.ph

". . . when you leave it to either House to decide election protests involving its own members,
that is virtually placing the majority party in a position to dictate the decision in those election
cases, because each House will be composed of a majority and a minority, and when you make
each House the judge of every election protest involving any member of that House, you place
the majority in a position to dominate and dictate the decision in the case and result was, there
were so many abuses, there were so many injustices committed by the majority at the expense
and to the prejudice of the minority protestants. Statements have been made here that justice was
done even under the old system, like that case involving Senator Mabanag, when he almost
became a victim of the majority when he had an election case, and it was only through the
intervention of President Quezon that he was saved from becoming the victim of majority
injustices.

"It is true that justice had sometimes prevailed under the old system, but the record will show
that those cases were few and they were the rare exceptions. The overwhelming majority of
election protests decided under the old system was that the majority being then in a position to
dictate the decision in the election protest, was tempted to commit as it did commit many abuses
and injustices." (Congressional Record for the Senate, Vol. III, p. 361; Emphasis supplied.)
Senator Paredes, a veteran legislator and former Speaker of the House of Representatives, said: jgc:chanrobles.com.ph

". . . what was intended in the creation of the electoral tribunal was to create a sort of collegiate
court composed of nine members: three of them belonging to the party having the largest number
of votes, and three from the party having the second largest number of votes so that these
members may represent the party, and the members of said party who will sit before the electoral
tribunal as protestees. For when it comes to a party, Mr. President, there is ground to believe that
decisions will be made along party lines." (Congressional Record for the Senate, Vol. III, p. 351;
Emphasis supplied.)

Senator Laurel, who played an important role in the framing of our Constitution, expressed
himself as follows: jgc:chanrobles.com.ph

"Now, with reference to the protests or contests relating to the election, the returns and the
qualifications of the members of the legislative bodies, I heard it said here correctly that there
was a time when that was given to the corresponding chamber of the legislative department. So
the election, returns and qualifications of the members of the Congress or legislative body was
entrusted to that body itself as the exclusive body to determine the election, returns and
qualifications of its members. There was some doubt also expressed as to whether that should
continue or not, and the greatest argument in favor of the retention of that provision was the fact
that was, among other things, the system obtaining in the United States under the Federal
Constitution of the United States, and there was no reason why that power or that right vested in
the legislative body should not be retained. But it was thought that would make the determination
of this contest, of this election protest, purely political as has been observed in the past."
(Congressional Record for the Senate, Vol. III, p. 376; Emphasis supplied.)

It is interesting to note that not one of the members of the Senate contested the accuracy of the
views thus expressed.

Referring particularly to the philosophy underlying the constitutional provision quoted above,
Dr. Aruego states:jgc:chanrobles.com.ph

"The defense of the Electoral Commission was based primarily upon the hope and belief that the
abolition of party lines because of the equal representation in this body of the majority and the
minority parties of the National Assembly and the intervention of some members of the Supreme
Court who, under the proposed constitutional provision, would also be members of the same,
would insure greater political justice in the determination of election contests for seats in the
National Assembly than there would be if the power had been lodged in the lawmaking body
itself. Delegate Francisco summarized the arguments for the creation of the Electoral
Commission in the following words: jgc:chanrobles.com.ph

"I understand that from the time that this question is placed in the hands of members not only of
the majority party but also of the minority party, there is already a condition, a factor which
would make protests decided in a non-partisan manner. We know from experience that many
times in the many protests tried in the House or in the Senate, it was impossible to prevent the
factor of party from getting in. From the moment that it is required that not only the majority but
also the minority should intervene in these questions, we have already enough guarantee that
there would be no tyranny on the part of the majority.

‘But there is another more detail which is the one which satisfies me most, and that is the
intervention of three justices. So that with this intervention of three justices if there would be any
question as to the justice applied by the majority or the minority, if there would be any
fundamental disagreement, or if there would be nothing but questions purely of party in which
the members of the majority as well as those of the minority should wish to take lightly a protest
because the protestant belongs to one of said parties, we have in this case, as a check upon the
two parties, the actuations of the three justices. In the last analysis, what is really applied in the
determination of electoral cases brought before the tribunals of justice or before the House of
Representatives or the Senate? Well, it is nothing more than the law and the doctrine of the
Supreme Court. If that is the case, there will be greater skill in the application of the laws and in
the application of doctrines to electoral matters having as we shall have three justices who will
act impartially in these electoral questions.

‘I wish to call the attention of my distinguished colleagues to the fact that in electoral protests it
is impossible to set aside party interests. Hence, the best guarantee, I repeat, for the
administration of justice to the parties, for the fact that the laws will not be applied improperly or
incorrectly as well as for the fact that the doctrines of the Supreme Court will be applied
rightfully, the best guarantee which we shall have, I repeat, is the intervention of the three
justices. And with the formation of the Electoral Commission, I say again, the protestants as well
as the protestees could remain tranquil in the certainty that they will receive the justice that they
really deserve. If we eliminate from this precept the intervention of the party of the minority and
that of the three justices, then we shall be placing protests exclusively in the hands of the party in
power. And I understand, gentlemen, that in practice that has not given good results. Many have
criticized, many have complained against, the tyranny of the majority in electoral cases . . . . I
repeat that the best guarantee lies in the fact that these questions will be judged not only by three
members of the majority but also by three members of the minority, with the additional
guarantee of the impartial judgment of three justices of the Supreme Court." (The Framing of the
Philippine Constitution by Aruego, Vol. I, pp. 261-263; Emphasis supplied.)

The foregoing was corroborated by Senator Laurel. Speaking for this Court, in Angara v.
Electoral Commission (63 Phil., 139), he asserted: jgc:chanrobles.com.ph

"The members of the Constitutional Convention who framed our fundamental law were in their
majority men mature in years and experience. To be sure, many of them were familiar with the
history and political development of other countries of the world. When, therefore, they deemed
it wise to create an Electoral Commission as a constitutional organ and invested it with the
exclusive function of passing upon and determining the election, returns and qualifications of the
members of the National Assembly, they must have done so not only in the light of their own
experience but also having in view the experience of other enlightened peoples of the world. The
creation of the Electoral Commission was designed to remedy certain evils of which the framers
of our Constitution were cognizant. Notwithstanding the vigorous opposition of some members
of the Convention to its creation, the plan, as hereinabove stated, was approved by that body by a
vote of 98 against 58. All that can be said now is that, upon the approval of the Constitution, the
creation of the Electoral Commission is the expression of the wisdom ‘ultimate justice of the
people.’ (Abraham Lincoln, First Inaugural Address, March 4, 1861.)

"From the deliberations of our Constitutional Convention it is evident that the purpose was to
transfer in its totality all the powers previously exercised by the legislature in matters pertaining
to contested elections of its members, to an independent and impartial tribunal. It was not so
much the knowledge and appreciation of contemporary constitutional precedents, however, as
the long-felt need of determining legislative contests devoid of partisan considerations which
prompted the people acting through their delegates to the Convention, to provide for this body
known as the Electoral Commission. With this end in view, a composite body in which both the
majority and minority parties are equally represented to off-set partisan influence in its
deliberations was created, and further endowed with judicial temper by including in its
membership three justices of the Supreme Court. (Pp. 174-175.) 7

As a matter of fact, during the deliberations of the convention, Delegates Conejero and Roxas
said:
jgc:chanrobles.com.ph

"El Sr. CONEJERO. Antes de votarse la enmienda, quisiera pedir informacion del Subcomite de
Siete.

"El Sr. PRESIDENTE. Que dice el Comite?

"El Sr. ROXAS. Con mucho gusto.

"El Sr. CONEJERO. Tal como esta el draft, dando tres miembros a la mayoria, y otros tres a la
minoria y tres a la Corte Suprema, no cree su Señoria que este equivale practicamente a dejar el
asunto a los miembros del Tribunal Supremo?

"El Sr. ROXAS. Si y no. Creemos que si el tribunal a la Comision esta constituido en esa forma,
tanto los miembros de la mayoria como los de la minoria asi como los miembros de la Corte
Suprema consideraran la cuestion sobre la base de sus meritos, sabiendo que el partidismo no es
suficiente para dar el triunfo.

"El Sr. CONEJERO. Cree Su Señoria que en un caso como ese, podriamos hacer que tanto los de
la mayoria como los de la minoria prescindieran del partidismo?

"El Sr. ROXAS. Creo que si, porque el partidismo no les daria el triunfo." (Angara v. Electoral
Commission, supra, pp. 168-169; Emphasis supplied.)

It is clear from the foregoing that the main objective of the framers of our Constitution in
providing for the establishment, first, of an Electoral Commission, 8 and then 9 of one Electoral
Tribunal for each House of Congress, was to insure the exercise of judicial impartiality in the
disposition of election contests affecting members of the law making body. To achieve this
purpose, two devices were resorted to, namely: (a) the party having the largest number of votes,
and the party having the second largest number of votes, in the National Assembly or in each
House of Congress, were given the same number of representatives in the Electoral Commission
or Tribunal, so that they may realize that partisan considerations could not control the
adjudication of said cases, and thus be induced to act with greater impartiality; and (b) the
Supreme Court was given in said body the same number of representatives as each one of said
political parties, so that the influence of the former may be decisive and endow said Commission
or Tribunal with judicial temper.

This is obvious from the very language of the constitutional provision under consideration. In
fact, Senator Sabido — who had moved to grant to Senator Tañada the "privilege" to make the
nominations on behalf of the party having the second largest number of votes in the Senate —
agrees with it. As Senator Sumulong inquired: jgc:chanrobles.com.ph

". . . I suppose Your Honor will agree with me that the framers of the Constitution precisely
thought of creating this Electoral Tribunal so as to prevent the majority from ever having a
preponderant majority in the Tribunal." (Congressional Record for the Senate, Vol. III, p. 330;
Emphasis supplied.)

Senator Sabido replied: jgc:chanrobles.com.ph

"That is so, . . . ." (Id., p. 330.)

Upon further interpelation, Senator Sabido said: jgc:chanrobles.com.ph

". . . the purpose of the creation of the Electoral Tribunal and of its composition is to maintain a
balance between the two parties and make the members of the Supreme Court the controlling
power so to speak of the Electoral Tribunal or hold the balance of power. That is the ideal
situation." (Congressional Record for the Senate, Vol. III, p. 349; Emphasis supplied.)

Senator Sumulong opined along the same line. His words were: jgc:chanrobles.com.ph

". . . The intention is that when the three from the majority and the three from the minority
become members of the Tribunal it is hoped that they will become aware of their judicial
functions, not to protect the protestants or the protestees. It is hoped that they will act as judges
because to decide election cases is a judicial function. But the framers of the Constitution besides
being learned were men of experience. They knew that even Senators like us are not angels, that
we are human beings, that if we should be chosen to go to the Electoral Tribunal no one can say
that we will entirely be free from partisan influence to favor our party, so that in case that hope
that the three from the majority and the three from the minority who will act as judges should
result in disappointment, in case they do not act as judges but they go there and vote along party
lines, still there is the guarantee that they will offset each other and the result will be that the
deciding vote will reside in the hands of the three Justices who have no partisan motives to favor
either the protestees or the protestants. In other words, the whole idea is to prevent the majority
from controlling and dictating the decisions of the Tribunal and to make sure that the decisive
vote will be wielded not by the Congressmen or Senators who are members of the Tribunal but
will be wielded by the Justices who, by virtue of their judicial offices, will have no partisan
motives to serve, either protestants or protestees. That is my understanding of the intention of the
framers of the Constitution when they decided to create the Electoral Tribunal.

x        x       x

"My idea is that the intention of the framers of the constitution in creating the Electoral Tribunal
is to insure impartiality and independence in its decision, and that is sought to be done by never
allowing the majority party to control the Tribunal, and secondly by seeing to it that the decisive
vote in the Tribunal will be left in the hands of persons who have no partisan interest or motive
to favor either protestant or protestee." (Congressional Record for the Senate, Vol. III, pp. 362-
363, 365-366; Emphasis supplied.)

So important in the "balance of powers" between the two political parties in the Electoral
Tribunals, that several members of the Senate questioned the right of the party having the second
largest number of votes in the Senate — and, hence, of Senator Tañada, as representative of the
Citizens Party — to nominate for the Senate Electoral Tribunal any Senator not belonging to said
party. Senators Lim, Sabido, Cea and Paredes maintained that the spirit of the Constitution
would be violated if the nominees to the Electoral Tribunals did not belong to the parties
respectively making the nominations. 10

It is not necessary, for the purpose of this decision, to determine whether the parties having the
largest, and the second largest, number of votes in each House may nominate, to the Electoral
Tribunals, those members of Congress who do not belong to the party nominating them. It is
patent, however, that the most vital feature of the Electoral Tribunals is the equal representation
of said parties therein, and the resulting equilibrium to be maintained by the Justices of the
Supreme Court as members of said Tribunals. In the words of the members of the present Senate,
said feature reflects the "intent" "purpose", and "spirit of the Constitution", pursuant to which the
Senate Electoral Tribunal should be organized (Congressional Record for the Senate, pp. 330,
337, 348-9, 350, 351, 355, 358, 362-3, 364, 370, 376).

Now then, it is well settled that "the purpose of all rules or maxims as to the construction or
interpretation of statutes is to discover the true intention of the law" (82 C. J. S., 526) and that

"As a general rule of statutory construction, the spirit or intention of a statute prevails over the
letter thereof , and whatever is within the spirit of a statute is within the statute although it is not
within the letter thereof, while that which is within the letter, but not within the spirit of a statute,
is not within the statute; but, where the law is free and clear from ambiguity, the letter of it is not
to be disregarded on the pretext of pursuing its spirit." (82 C. J. S, 613.)

"There is no universal rule or absolute test by which directory provisions in a statute may in all
circumstances be distinguished from those which are mandatory. However, in the determination
of this question, as of every other question of statutory construction, the prime object is to
ascertain the legislative intent. The legislative intent must he obtained from all the surrounding
circumstances, and the determination does not depend on the form of the statute. Consideration
must be given to the entire statute, its nature, its object, and the consequences which would result
from construing it one way or the other, and the statute must be construed in connection with
other related statutes. Words of permissive character may be given a mandatory significance in
order to effect the legislative intent, and, when the terms of a statute are such that they cannot be
made effective to the extent of giving each and all of them some reasonable operation, without
construing the statute as mandatory, such construction should be given; . . . On the other hand,
the language of a statute, however mandatory in form, may be deemed directory whenever
legislative purpose can best be carried out by such construction, and the legislative intent does
not require a mandatory construction; but the construction of mandatory words as directory
should not be lightly adopted and never where it would in fact make a new law instead of that
passed by the legislature. . . . Whether a statute is mandatory or directory depends on whether the
thing directed to be done is of the essence of the thing required, or is a mere matter of form, and
what is a matter of essence can often be determined only by judicial construction. Accordingly,
when a particular provision of a statute relates to some immaterial matter, as to which
compliance with the statute is a matter of convenience rather than substance, or where the
directions of a statute are given merely with a view to the proper, orderly, and prompt conduct of
business, it is generally regarded as directory, unless followed by words of absolute prohibition;
and a statute is regarded as directory where no substantial rights depend on it, no injury can
result from ignoring it, and the purpose of the legislature can be accomplished in a manner other
than that prescribed, with substantially the same result. On the other hand, a provision relating to
the essence of the thing to be done, that is, to matters of substance, is mandatory, and when a fair
interpretation of a statute, which directs acts or proceedings to be done in a certain way, shows
that the legislature intended a compliance with such provision to be essential to the validity of
the act or proceeding, or when same antecedent and prerequisite conditions must exist prior to
the exercise of power, or must be performed before certain other powers can be exercised, the
statute must be regarded as mandatory. (Id., pp. 869-874.) (See, also, Words and Phrases, Vol.
26, pp. 463- 467; Emphasis supplied.)

What has been said above, relative to the conditions antecedent to, and concomitant with, the
adoption of section 11 of Article VI of the Constitution, reveals clearly that its framers intended
to prevent the majority party from controlling the Electoral Tribunals, and that the structure
thereof is founded upon the equilibrium between the majority and the minority parties therein,
with the Justices of the Supreme Court, who are members of said Tribunals, holding the resulting
balance of power. The procedure prescribed in said provision for the selection of members of the
Electoral Tribunals is vital to the role they are called upon to play. It constitutes the essence of
said Tribunals. Hence, compliance with said procedure is mandatory, and acts performed in
violation thereof are null and void. 11

It is true that the application of the foregoing criterion would limit the membership of the Senate
Electoral Tribunal, in the case at bar, to seven (7), instead of nine (9), members; but, it is
conceded that the present composition of the Senate was not foreseen by the framers of our
Constitution (Congressional Record for the Senate, Vol. III, pp. 329, 342, 349, 354, 359, 375).
Furthermore, the spirit of the law prevails over its letter, and the solution herein adopted
maintains the spirit of the Constitution, for partisan considerations can not be decisive in a
tribunal consisting of three (3) Justices of the Supreme Court, three (3) members nominated by
the majority party and either one (1) or two (2) members nominated by the party having the
second largest number of votes in the House concerned.
Upon the other hand, what would be the result of respondents’ contention if upheld? Owing to
the fact that the Citizens Party 12 has only one member in the Upper House, Senator Tañada felt
he should nominate, for the Senate Electoral Tribunal, only said member of the Citizens Party.
The same is, thus, numerically handicapped, vis-a-vis the majority party, in said Tribunal.
Obviously, Senator Tañada did not nominate other two Senators, because, otherwise, he would
worsen the already disadvantageous position, therein, of the Citizens Party. Indeed, by the
aforementioned nomination and election of Senators Cuenco and Delgado, if the same were
sanctioned, the Nacionalista Party would have five (5) members in the Senate Electoral Tribunal,
as against one (1) member of the Citizens Party and three members of the Supreme Court. With
the absolute majority thereby attained by the majority party in said Tribunal, the philosophy
underlying the same would be entirely upset. The equilibrium between the political parties
therein would be destroyed. What is worst, the decisive moderating role of the Justices of the
Supreme Court would be wiped out, and, in lieu thereof, the door would be thrown wide open for
the predominance of political considerations in the determination of election protests pending
before said Tribunal, which is precisely what the fathers of our Constitution earnestly strove to
forestall. 13

This does not imply that the honesty, integrity or impartiality of Senators Cuenco and Delgado
are being questioned. As a matter of fact, when Senator Tañada objected to their nomination, he
explicitly made of record that his opposition was based, not upon their character, but upon the
principle involved. When the election of members of Congress to the Electoral Tribunal is made
dependent upon the nomination of the political parties above referred to, the Constitution thereby
indicates its reliance upon the method of selection thus established, regardless of the individual
qualities of those chosen therefor. Considering the wealth of experience of the delegates to the
Convention, all lawyers of great note, as veteran politicians and as leaders in other fields of
endeavor, they could not, and did not, ignore the fact that the Constitution must limit itself to
giving general patterns or norms of action. In connection, particularly, with the composition of
the Electoral Tribunals, they believed that, even the most well meaning individuals often find it
difficult to shake off the bias and prejudice created by political antagonisms and to resist the
demands of political exigencies, the pressure of which is bound to increase in proportion to the
degree of predominance of the party from which it comes. As above stated, this was confirmed
by distinguished members of the present Senate. (See pp. 25-28, 33, 34, supra.)

In connection with the argument of the former Secretary of Justice to the effect that when "there
is no minority party represented in the Assembly, the necessity for such a check by the minority
disappears", the following observations of the petitioners herein are worthy of notice: jgc:chanrobles.com.ph

"Under the interpretation espoused by the respondents, the very frauds or terrorism committed by
a party would establish the legal basis for the final destruction of minority parties in the Congress
at least. Let us suppose, for example, that in the Senate, the 15 or 16 senators with unexpired
terms belong to the party A. In the senatorial election to fill the remaining 8 seats, all the 8
candidates of party A are proclaimed elected through alleged fraud and/or terrorism. (The ouster
of not less than 3 senators-elect in the elections held since liberation attests to the reality of
election frauds and terrorism in our country.) There being no senator or only one senator
belonging to the minority, who would sit in judgment on the election candidates of the minority
parties? According to the contention of the respondents, it would be a Senate Electoral Tribunal
made up of three Supreme Court Justices and 5 or 6 members of the same party A accused of
fraud and terrorism. Most respectfully, we pray this Honorable Court to reject an interpretation
that would make of a democratic constitution the very instrument by which a corrupt and ruthless
party could intrench itself in power in the legislature and thus destroy democracy in the
Philippines.

x        x       x

". . . When there are no electoral protests filed by the minority party, or when the only electoral
protests filed are by candidates of the majority against members-elect of the same majority party,
there might be no objection to the statement. But if electoral protests are filed by candidate of the
minority party, it is at this point that a need for a check on the majority party is greatest, and
contrary to the observation made in the above-quoted opinion, such a check is a function that
cannot be successfully exercised by the 3 Justices of the Supreme Court, for the obvious and
simple reason that they could easily be outvoted by the 6 members of the majority party in the
Tribunal.

x        x       x

"In the case of the cited opinion of Secretary Abad Santos rendered in 1939, it did not appear that
there were minority party candidates who were adversely affected by the ruling of the Secretary
of Justice and who could have brought a test case to court." (Emphasis supplied.)

The defenses of waiver and estoppel set up against petitioner Tañada are untenable. Although
"an individual may waive constitutional provisions intended for his benefit", particularly those
meant for the protection of his property, and, sometimes, even those tending "to secure his
personal liberty", the power to waive does not exist when "public policy or public morals" are
involved. (11 Am. Jur. 765; I Cooley’s Constitutional Limitations, pp. 368-371). The procedure
outlined in the Constitution for the organization of the Electoral Tribunals was adopted in
response to the demands of the common weal, and it has been held that "where a statute is
founded on public policy, those to whom it applies should not be permitted to waive its
provisions" (82 C. J. S., 874). Besides, there can be no waiver without an intent to such effect,
which Senator Tañada did not have. Again, the alleged waiver or exhaustion of his rights does
not justify the exercise thereof by a person or party other than that to which it is vested
exclusively by the Constitution.

The rule on estoppel is that "whenever a party has, by his declaration, act or omissions,
intentionally and deliberately led another to believe a particular thing true, and to act upon such
belief, he cannot, in a litigation arising out of such declaration, act or omission, be permitted to
falsify it" (Rule 68, sec. 68 [a], Rules of Court). In the case at bar, petitioner Senator Tañada did
not lead the Senate to believe that Senator Primicias could nominate Senators Cuenco and
Delgado. On the contrary, said petitioner repeatedly asserted that his was the exclusive right to
make the nomination. He, likewise, specifically contested said nomination of Senators Cuenco
and Delgado. Again, the rule on estoppel applies to questions of fact, not of law, about the truth
of which the other party is ignorant (see Moran’s Comments on the Rules of Court, Vol. 3, pp.
490, 495). Such is not the nature of the situation that confronted Senator Tañada and the other
members of the Senate. Lastly, the case of Zandueta v. De la Costa (66 Phil., 615), cited by
respondents, is not in point. Judge Zandueta assumed office by virtue of an appointment, the
legality of which he later on assailed. In the case at bar, the nomination and election of Senator
Tañada as member of the Senate Electoral Tribunal was separate, distinct and independent from
the nomination and election of Senators Cuenco and Delgado.

In view of the foregoing, we hold that the Senate may not elect, as members of the Senate
Electoral Tribunal, those Senators who have not been nominated by the political parties specified
in the Constitution; that the party having the largest number of votes in the Senate may nominate
not more than three (3) members thereof to said Electoral Tribunal; that the party having the
second largest number of votes in the Senate has the exclusive right to nominate the other three
(3) Senators who shall sit as members in the Electoral Tribunal; that neither these three (3)
Senators, nor any of them, may be nominated by a person or party other than the one having the
second largest number of votes in the Senate or its representative therein; that the Committee on
Rules for the Senate has no standing to validly make such nomination and that the nomination of
Senators Cuenco and Delgado by Senator Primicias, and the election of said respondents by the
Senate, as members of said Tribunal, are null and void ab initio.

As regards respondents Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes, we
are not prepared to hold, however, that their appointments were null and void. Although
recommended by Senators Cuenco and Delgado, who are not lawful members of the Senate
Electoral Tribunal, they were appointed by its Chairman, presumably, with the consent of the
majority of the de jure members of said body 14 or, pursuant to the Rules thereof. At any rate, as
held in Suanes v. Chief Accountant (supra), the selection of its personnel is an internal matter
falling within the jurisdiction and control of said body, and there is every reason to believe that it
will, hereafter, take appropriate measures, in relation to the four (4) respondents
abovementioned, conformably with the spirit of the Constitution and of the decision in the case
at bar.

Wherefore, judgment is hereby rendered declaring that respondents Senators Mariano Jesus
Cuenco and Francisco A. Delgado have not been duly elected as Members of the Senate
Electoral Tribunal, that they are not entitled to act as such and that they should be, as they are
hereby, enjoined from exercising the powers and duties of Members of said Electoral Tribunal
and from acting in such capacity in connection with Senate Electoral Case No. 4 thereof. With
the qualification stated above, the petition is dismissed, as regards respondents Alfredo Cruz,
Catalina Cayetano, Manuel Serapio and Placido Reyes. Without special pronouncement as to
costs. It is so ordered.
[G.R. No. L-44640. October 12, 1976.]

PABLITO V. SANIDAD, Petitioner, v. HONORABLE COMMISSION ON ELECTIONS and HONORABLE

NATIONAL TREASURER, Respondents.

DECISION

MARTIN, J.:

The capital question raised in these prohibition suits with preliminary injunction relates to the
power of the incumbent President of the Philippines to propose amendments to the present
Constitution in the absence of the interim National Assembly which has not been convened. chanrobles.com:cralaw:red

On September 2, 1976, President Ferdinand E. Marcos issued Presidential Decree No. 991
calling for a national referendum on October 16, 1976 for the Citizens Assemblies ("barangays")
to resolve, among other things, the issues of martial law, the interim assembly, its replacement,
the powers of such replacement, the period of its existence, the length of the period for the
exercise by the President of his present powers. 1

Twenty days after or on September 22, 1976, the President issued another related decree,
Presidential Decree No. 1031, amending the previous Presidential Decree No. 991, by declaring
the provisions of Presidential Decree No. 229 providing for the manner of voting and canvass of
votes in "barangays" (Citizens Assemblies) applicable to the national referendum-plebiscite of
October 16, 1976. Quite relevantly, Presidential Decree No. 1031 repealed inter alia, Section 4,
of Presidential Decree No. 991, the full text of which (Section 4) is quoted in the footnote below.
2

On the same date of September 22, 1976, the President issued Presidential Decree No. 1033,
stating the questions to be submitted to the people in the referendum-plebiscite on October 16,
1976. The Decree recites in its "whereas" clauses that the people’s continued opposition to the
convening of the interim National Assembly evinces their desire to have such body abolished
and replaced thru a constitutional amendment, providing for a new interim legislative body,
which will be submitted directly to the people in the referendum-plebiscite of October 16.

The questions ask, to wit: jgc:chanrobles.com.ph

"(1) Do your want martial law to be continued?

(2) Whether or not you want martial law to be continued, do you approve the following
amendments to the Constitution? For the purpose of the second question, the referendum shall
have the effect of a plebiscite within the contemplation of Section 2 of Article XVI of the
Constitution.

PROPOSED AMENDMENTS: chanrob1es virtual 1aw library

1. There shall be, in lieu of the interim National Assembly, an interim Batasang Pambansa.
Members of the interim Batasang Pambansa which shall not be more than 120, unless otherwise
provided by law, shall include the incumbent President of the Philippines, representatives elected
from the different regions of the nation, those who shall not be less than eighteen years of age
elected by their respective sectors, and those chosen by the incumbent President from the
members of the Cabinet. Regional representatives shall be apportioned among the regions in
accordance with the number of their respective inhabitants and on the basis of a uniform and
progressive ratio while the sectors shall be determined by law. The number of representatives
from each region or sector and the, manner of their election shall be prescribed and regulated by
law.

2. The interim Batasang Pambansa shall have the same powers and its members shall have the
same functions, responsibilities, rights, privileges, and disqualifications as the interim National
Assembly and the regular National Assembly and the members thereof. However, it shall not
exercise the power provided in Article VIII, Section 14(1) of the Constitution.

3. The incumbent President of the Philippines shall, within 30 days from the election and
selection of the members, convene the interim Batasang Pambansa and preside over its sessions
until the Speaker shall have been elected. The incumbent President of the Philippines shall be the
Prime Minister and he shall continue to exercise all his powers even after the interim Batasang
Pambansa is organized and ready to discharge its functions and likewise be shall continue to
exercise his powers and prerogatives under the nineteen hundred and thirty five. Constitution and
the powers vested in the President and the Prime Minister under this Constitution.

4. The President (Prime Minister) and his Cabinet shall exercise all the powers and functions,
and discharge the responsibilities of the regular President (Prime Minister) and his Cabinet, and
shall be subject only to such disqualifications as the President (Prime Minister) may prescribe.
The President (Prime Minister) if he so desires may appoint a Deputy Prime Minister or as many
Deputy Prime Ministers as he may deem necessary.

5. The incumbent President shall continue to exercise legislative powers until martial law shall
have been lifted.

6. Whenever in the judgment of the President (Prime Minister), there exists a grave emergency
or a threat or imminence thereof, or whenever the interim Batasang Pambansa or the regular
National Assembly fails or is unable to act adequately on any matter for any reason that in his
judgment requires immediate action, he may, in order to meet the exigency, issue the necessary
decrees, orders or letters of instructions, which shall form part of the law of the land.

7. The barangays and sanggunians shall continue as presently constituted but their functions,
powers, and composition may be altered by law.

Referenda conducted thru the barangays and under the supervision of the Commission on
Elections may be called at any time the government deems it necessary to ascertain the will of
the people regarding any important matter whether of national or local interest.

8. All provisions of this Constitution not inconsistent with any of these amendments shall
continue in full force and effect.

9. These amendments shall take effect after the incumbent President shall have proclaimed that
they have been ratified by a majority of the votes cast in the referendum-plebiscite." cralaw virtua1aw library

The Commission on Elections was vested with the exclusive supervision and control of the
October 1976 National Referendum-Plebiscite.

On September 27, 1976, PABLO C. SANIDAD and PABLITO V. SANIDAD, father and son,
commenced L-44640 for Prohibition with Preliminary Injunction seeking to enjoin the
Commission on Elections from holding and conducting the Referendum Plebiscite on October
16; to declare without force and effect Presidential Decree Nos. 991 and 1033, insofar as they
propose amendments to the Constitution, as well as Presidential Decree No. 1031, insofar as it
directs the Commission on Elections to supervise, control, hold, and conduct the Referendum-
Plebiscite scheduled on October 16, 1976.

Petitioners contend that under the 1935 and 1973 Constitutions there is no grant to the incumbent
President to exercise the constituent power to propose amendments to the new Constitution. As a
consequence, the Referendum-Plebiscite on October 16 has no constitutional or legal basis.

On October 5, 1976, the Solicitor General filed the comment for respondent Commission on
Elections. The Solicitor General principally maintains that petitioners have no standing to sue;
the issue raised is political in nature, beyond judicial cognizance of this Court; at this state of the
transition period, only the incumbent President has the authority to exercise constituent power;
the referendum-plebiscite is a step towards normalization.

On September 30, 1976, another action for Prohibition with Preliminary Injunction, docketed as
L-44684, was instituted by VICENTE M. GUZMAN, a delegate to the 1971 Constitutional
Convention, asserting that the power to propose amendments to, or revision of the Constitution
during the transition period is expressly conferred on the interim National Assembly under action
16, Article XVII of the Constitution. 3

Still another petition for Prohibition with Preliminary Injunction was filed on October 5, 1976 by
RAUL M. GONZALES, his son RAUL, JR., and ALFREDO SALAPANTAN, docketed as L-
44714, to restrain the implementation of Presidential Decrees relative to the forthcoming
Referendum-Plebiscite of October 16.

These last petitioners argue that even granting him legislative powers under Martial Law, the
incumbent President cannot act as a constituent assembly to propose amendments to the
Constitution; a referendum-plebiscite is untenable under the Constitutions of 1935 and 1973; the
submission of the proposed amendments in such a short period of time for deliberation renders
the plebiscite a nullity; to lift Martial Law, the President need not consult the people via
referendum; and allowing 15-year olds to vote would amount to an amendment of the
Constitution, which confines the right of suffrage to those citizens of the Philippines 18 years of
age and above.

We find the petitions in the three entitled cases to be devoid of merit.

Justiciability of question raised.

1. As a preliminary resolution, We rule that the petitioners in L-44640 (Pablo C. Sanidad and
Pablito V. Sanidad) possess locus standi to challenge the constitutional premise of Presidential
Decree Nos. 991, 1031, and 1033. It is now an ancient rule that the valid source of a statute —
Presidential Decrees are of such nature — may be contested by one who will sustain a direct
injury as a result of its enforcement. At the instance of taxpayers, laws providing for the
disbursement of public funds may be enjoined, upon the theory that the expenditure of public
funds by an officer of the State for the purpose of executing an unconstitutional act constitutes a
misapplication of such funds. 4 The breadth of Presidential Decree No. 991 carries an
appropriation of Five Million Pesos for the effective implementation of its purposes. 5
Presidential Decree No. 1031 appropriates the sum of Eight Million Pesos to carry out its
provisions. 6 The interest of the aforenamed petitioners as taxpayers in the lawful expenditure of
these amounts of public money sufficiently clothes them with that personality to litigate the
validity of the Decrees appropriating said funds. Moreover, as regards taxpayer’s suits, this Court
enjoys that open discretion to entertain the same or not. 7 For the present case, We deem it sound
to exercise that discretion affirmatively so that the authority upon which the disputed Decrees are
predicated may be inquired into.

2. The Solicitor General would consider the question at bar as a pure political one, lying outside
the domain of judicial review. We disagree. The amending process both as to proposal and
ratification, raises a judicial question. 8 This is especially true in cases where the power of the
Presidency to initiate the amending process by proposals of amendments, a function normally
exercised by the legislature, is seriously doubted. Under the terms of the 1973 Constitution, the
power to propose amendments to the Constitution resides in the interim National Assembly
during the period of transition (Sec. 15, Transitory Provisions). After that period, and the regular
National Assembly in its active session, the power to propose amendments becomes ipso facto
the prerogative of the regular National Assembly (Sec. 1, pars. 1 and 2 of Art. XVI, 1973
Constitution). The normal course has not been followed. Rather than calling the interim National
Assembly to constitute itself into a constituent assembly, the incumbent President undertook the
proposal of amendments and submitted the proposed amendments thru Presidential Decree 1033
to the people in a Referendum-Plebiscite on October 16. Unavoidably, the regularity of the
procedure for amendments, written in lambent words in the very Constitution sought to be
amended, raises a contestable issue. The implementing Presidential Decree Nos. 991, 1031, and
1033, which commonly purport to have the force and effect of legislation are assailed as invalid,
thus the issue of the validity of said Decrees is plainly a justiciable one, within the competence of
this Court to pass upon. Section 2 (2) Article X of the new Constitution provides: "All cases
involving the constitutionality of a treaty, executive agreement, or law shall be heard and decided
by the Supreme Court en banc and no treaty, executive agreement, or law may be declared
unconstitutional without the concurrence of at least ten Members. . . .." The Supreme Court has
the last word in the construction not only of treaties and statutes, but also of the Constitution
itself. 9 The amending, like all other powers organized in the Constitution, is in form a delegated
and hence a limited power, so that the Supreme Court is vested with that authority to determine
whether that power has been discharged within its limits. chanrobles law library : red

Political questions are neatly associated with the wisdom, not the legality of a particular act.
Where the vortex of the controversy refers to the legality or validity of the contested act, that
matter is definitely justiciable or non-political. What is in the heels of the Court is not the
wisdom of the act of the incumbent President in proposing amendments to the Constitution, but
his constitutional authority to perform such act or to assume the power of a constituent assembly.
Whether the amending process confers on the President that power to propose amendments is
therefore a downright justiciable question. Should the contrary be found, the actuation of the
President would merely he a brutum fulmen. If the Constitution provides how it may be
amended, the judiciary as the interpreter of that Constitution, can declare whether the procedure
followed or the authority assumed was valid or not. 10

We cannot accept the view of the Solicitor General, in pursuing his theory of non-justiciability,
that the question of the President’s authority to propose amendments and the regularity of the
procedure adopted for submission of the proposals to the people ultimately lie in the judgment of
the latter. A clear Descartes fallacy of vicious circle. Is it not that the people themselves, by their
sovereign act, provided for the authority and procedure for the amending process when they
ratified the present Constitution in 1973? Whether, therefore, that constitutional provision has
been followed or not is indisputably a proper subject of inquiry, not by the people themselves —
of course — who exercise no power of judicial review, but by the Supreme Court in whom the
people themselves vested that power, a power which includes the competence to determine
whether the constitutional norms for amendments have been observed or not. And, this inquiry
must be done a priori not a posteriori, i.e., before the submission to and ratification by the
people.

Indeed, the precedents evolved by the Court on prior constitutional cases underline the
preference of the Court’s majority to treat such issue of Presidential role in the amending process
as one of non-political impression. In the Plebiscite Cases, 11 the contention of the Solicitor
General that the issue on the legality of Presidential Decree No. 73 "submitting to the Filipino
people (on January 15, 1973) for ratification or rejection the Constitution of the Republic of the
Philippines proposed by the 1971 Constitutional Convention and appropriating funds therefor,
"is a political one, was rejected and the Court unanimously considered the issue as justiciable in
nature. Subsequently, in the Ratification Cases 12 involving the issue of whether or not the
validity of Presidential Proclamation No. 1102, "announcing the Ratification by the Filipino
people of the Constitution proposed by the 1971 Constitutional Convention," partakes of the
nature of a political question, the affirmative stand of the Solicitor General was dismissed, the
Court ruled that the question raised is justiciable. Chief Justice Concepcion, expressing the
majority view, said," (T)hus, in the aforementioned plebiscite cases, We rejected the theory of
the respondents therein that the question-whether Presidential Decree No. 73 calling a plebiscite
to be held on January 15, 1973, for the ratification or rejection of the proposed new Constitution,
was valid or not, was not a proper subject of judicial inquiry because, they claimed, it partook of
a political nature, and We unanimously declared that the issue was a justiciable one. With
identical unanimity. We overruled the respondent’s contention in the 1971 habeas corpus cases,
questioning Our authority to determine the constitutional sufficiency of the factual bases of the
Presidential proclamation suspending the privilege of the writ of habeas corpus on August 21,
1971, despite the opposite view taken by this Court in Varcelon v. Baker and Montenegro v.
Castañeda, insofar as it adhered to the former case, which view We, accordingly, abandoned and
refused to apply. For the same reason, We did not apply and expressly modified, in Gonzales v.
Commission on Elections, the political-question thereby adopted in Mabanag v. Lopez Vito." 13
The return to Barcelon v. Baker and Mabanag v. Lopez Vito, urged by the Solicitor General, was
decisively refused by the Court. Chief Justice Concepcion continued: "The reasons adduced in
support thereof are, however, substantially the same as those given in support of the political
question theory advanced in said habeas corpus and plebiscite cases, which were carefully
considered by this Court and found by it to be legally unsound and constitutionally untenable. As
consequence. Our decisions in the aforementioned habeas corpus cases partakes of the nature
and effect of a stare decisis which gained added weight by its virtual reiteration." cralaw virtua1aw library

II

The amending process as laid out

in the new Constitution.

1. Article XVI of the 1973 Constitution on Amendments ordains: jgc:chanrobles.com.ph

"SECTION 1. (1) Any amendment to, or revision of, this Constitution may be proposed by the
National Assembly upon a vote of three-fourths of all its Members, or by a constitutional
convention.

(2) The National Assembly may, by a vote of two-thirds of all its Members, call a constitutional
convention or, by a majority vote of all its Members, submit the question of calling such a
convention to the electorate in an election.

SECTION 2. Any amendment to, or revision of, this Constitution shall be valid when ratified by
a majority of the votes cast in a plebiscite which shall be held not later than three months a after
the approval of such amendment or revision." cralaw virtua1aw library

In the present period of transition, the interim National Assembly instituted in the Transitory
Provisions is conferred with that amending power. Section 15 of the Transitory Provisions
reads:jgc:chanrobles.com.ph

"SECTION 15. The interim National Assembly, upon special call by the interim Prime Minister,
may, by a majority vote of all its Members, propose amendments to this Constitution. Such
amendments shall take effect when ratified in accordance with Article Sixteen hereof." cralaw virtua1aw library

There are, therefore, two periods contemplated in the constitutional life of the nation, i.e., period
of normalcy and period of transition. In times of normalcy, the amending process may be
initiated by the proposals of the (1) regular National Assembly upon a vote of three-fourths of all
its members; or (2) by a Constitutional Convention called by a vote of two-thirds of all the
Members of the National Assembly. However the calling of a Constitutional Convention may be
submitted to the electorate in an election voted upon by a majority vote of all the members of the
National Assembly. In times of transition, amendments may be proposed by a majority vote of
all the Members of the interim National Assembly upon special call by the interim Prime
Minister.

2. This Court in Aquino v. COMELEC, 14 had already settled that the incumbent President is
vested with that prerogative of discretion as to when he shall initially convene the interim
National Assembly. Speaking for the majority opinion in that case, Justice Makasiar said: "The
Constitutional Convention intended to leave to the President the determination of the time when
he shall initially convene the interim National Assembly, consistent with the prevailing
conditions of peace and order in the country." Concurring, Justice Fernandez, himself a member
of that Constitutional Convention, revealed:" (W)hen the Delegates to the Constitutional
Convention voted on the Transitory Provisions, they were aware of the fact that under the same,
the incumbent President was given the discretion as to when he could convene the interim
National Assembly; it was so stated plainly by the sponsor, Delegate Yaneza; as a matter of fact,
the proposal that it be convened ‘immediately’, made by Delegate Pimentel (V), was rejected."
15 The President’s decision to defer the convening of the interim National Assembly soon found
support from the people themselves. In the plebiscite of January 10-15, 1973, at which the
ratification of the 1973 Constitution was submitted, the people voted against the convening of
the interim National Assembly. In the referendum of July 24, 1973, the Citizens Assemblies
("bagangays") reiterated their sovereign will to withhold the convening of the interim National
Assembly. Again, in the referendum of February 27, 1975, the proposed question of whether the
interim National Assembly shall be initially convened was eliminated, because some of the
members of Congress and delegates of the Constitutional Convention, who were deemed
automatically members of the interim National Assembly, were against its inclusion since in that
referendum of January, 1973, the people had already resolved against it.

3. In sensu striciore, when the legislative arm of the state undertakes the proposals of amendment
to a Constitution, that body is not in the usual function of lawmaking. It is not legislating when
engaged in the amending process. 16 Rather, it is exercising a peculiar power bestowed upon it
by the fundamental charter itself. In the Philippines, that power is provided for in Article XVI of
the 1973 Constitution (for the regular National Assembly) or in Section 15 of the Transitory
Provisions (for the interim National Assembly). While ordinarily it is the business of the
legislating body to legislate for the nation by virtue of constitutional conferment, amending of
the Constitution is not legislative in character. In political science a distinction is made between
constitutional content of an organic character and that of a legislative character. The distinction,
however, is one of policy, not of law. 17 Such being the case, approval of the President of any
proposed amendment is a misnomer. 18 The prerogative of the President to approve or
disapprove applies only to the ordinary cases of legislation. The President has nothing to do with
proposition or adoption of amendments to the Constitution. 19

III

Concentration of Powers

in the President during

crisis government.

1. In general, the governmental powers in crisis government — the Philippines is a crisis

government today — are more or less concentrated in the President. 20 According to Rossiter,"
(t)he concentration of government power in a democracy faced by an emergency is a corrective
to the crisis inefficiencies inherent in the doctrine of the separation of powers. In most free states
it has generally been regarded as Imperative that the total power of the government be parceled
out among three mutually independent branches — executive, legislature, and judiciary. It is
believed to be distructive of constitutionalism if any one branch should exercise any two or more
types of power, and certainly a total disregard of the separation of powers is, as Madison wrote
in the Federalist, No. 47, ‘the very definition of tyranny.’ In normal times the separation of
powers forms a distinct obstruction to arbitrary governmental action. By this same token, in
abnormal times it may form an insurmountable barrier to a decisive emergency action in behalf
of the state and its independent existence. There are moments in the life of any government when
all powers must work together in unanimity of purpose and action, even if this means the
temporary union of executive, legislative, and judicial power in the hands of one man. The more
complete the separation of powers in a constitutional system, the more difficult and yet the more
necessary will be their fusion in time of crisis." This is evident in a comparison of the crisis
potentialities of the cabinet and presidential systems of government. In the former the all-
important harmony of legislature and executive is taken for granted; in the latter it is neither
guaranteed nor to be to confidently expected. As a result, cabinet is more easily established and
more trustworthy than presidential dictatorship. The power of the state in crisis must not only be
concentrated and expanded; it must also be freed from the normal system of constitutional and
legal limitations. 21 John Locke, on the other hand, claims for the executive in its own right a
broad discretion capable even of setting aside the ordinary laws in the meeting of special
exigencies for which the legislative power had not provided. 22 The rationale behind such broad
emergency powers of the Executive is the release of the government from "the paralysis of
constitutional restraints" so that the crisis may be ended and normal times restored.
2. The presidential exercise of legislative powers in times of martial law is now a conceded valid
act. That sun clear authority of the President is saddled on Section 3 (pars. 1 and 2) of the
Transitory Provisions, thus: 23

"The incumbent President of the Philippines shall initially convene the interim National
Assembly and shall preside over its sessions until the interim Speaker shall have been elected.
He shall continue to exercise his powers and prerogatives under the nineteen hundred and thirty-
five Constitution and the powers vested in the President and the Prime Minister under this
Constitution until he calls upon the interim National Assembly to elect the interim President and
the interim Prime Minister, who shall then exercise their respective powers vested by this
Constitution.

All proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the
incumbent President shall be part of the law of the land, and shall remain valid, binding, and
effective even after lifting of martial law or the ratification of this Constitution, unless modified,
revoked, or superseded by subsequent proclamations, orders, decrees, instructions, or other acts
of the incumbent President, or unless expressly and explicitly modified or repealed by the regular
National Assembly." cralaw virtua1aw library

"It is unthinkable," said Justice Fernandez, a 1971 Constitutional Convention delegate, "that the
Constitutional Convention, while giving to the President the discretion when to call the interim
National Assembly to session, and knowing that it may not be convened soon, would create a
vacuum in the exercise of legislative powers. Otherwise, with no one to exercise the lawmaking
powers, there would be paralyzation of the entire governmental machinery." 24 Paraphrasing
Rossiter, this is an extremely important factor in any constitutional dictatorship which extends
over a period of time. The separation of executive — and legislature ordained in the Constitution
presents a distinct obstruction to efficient crisis government. The steady increase in executive
power is not too much a cause for worry as the steady increase in the magnitude and complexity
of the problems the President has been called upon by the Filipino people to solve in their behalf,
which involve rebellion, subversion, secession, recession, inflation, and economic crisis — a.
crisis greater than war. In short, while conventional constitutional law just confines the
President’s power as Commander-in-Chief to the direction of the operation of the national forces,
yet the facts of our political, social, and economic disturbances had convincingly shown that in
meeting the same, indefinite power should be attributed to the President to take emergency
measures.25 cralaw:red

IV

Authority of the incumbent

President to propose

amendments to the Constitution.

1. As earlier pointed out, the power to legislate is constitutionally consigned to the interim
National Assembly during the transition period. However, the initial convening of that Assembly
is a matter fully addressed to the judgment of the incumbent President. And, in the exercise of
that judgment, the President opted to defer convening of that body in utter recognition of the
people’s preference. Likewise, in the period of transition, the power to propose amendments to
the Constitution lies in the interim National Assembly upon special call by the President (Sec. 15
of the Transitory Provisions). Again, harking to the dictates of the sovereign will, the President
decided not to call the interim National Assembly. Would it then be within the bounds of the
Constitution and of law for the President to assume that constituent power of the interim
Assembly vis-a-vis his assumption of that body’s legislative functions? The answer is yes. If the
President has been legitimately discharging the legislative functions of the interim Assembly,
there is no reason why he cannot validly discharge the function of that Assembly to propose
amendments to the Constitution, which is but adjunct, although peculiar, to its gross legislative
power. This, of course, is not to say that the President has converted his office into a constituent
assembly of that nature normally constituted by the legislature. Rather, with the interim National
Assembly not convened and only the Presidency and the Supreme Court in operation, the urges
of absolute necessity render it imperative upon the President to act as agent for and in behalf of
the people to propose amendments to the Constitution. Parenthetically, by its very constitution,
the Supreme Court possesses no capacity to propose amendments without constitutional
infractions. For the President to shy away from that actuality and decline to undertake the
amending process would leave the governmental machinery at a stalemate or create in the
powers of the State a destructive vacuum, thereby impeding the objective of a crisis government
"to end the crisis and restore normal times." In these parlous times, that Presidential initiative to
reduce into concrete forms the constant voices of the people reigns supreme. After all,
constituent assemblies or constitutional conventions, like the President now, are mere agents of
the people. 26

2. The President’s action is not a unilateral move. As early as the referendums of January 1973
and February 1975, the people had already rejected the calling of the interim National Assembly.
The Lupong Tagapagpaganap of the Katipunan ng mga Sanggunian, the Pambansang Katipunan
ng mga Barangay, and the Pambansang Katipunan ng mga Barangay, representing 42,000
barangays, about the same number of Kabataang Barangay organizations, Sanggunians in 1,458
municipalities, 72 provinces, 3 sub-provinces, and 60 cities had informed the President that the
prevailing sentiment of the people is for the abolition of the interim National Assembly. Other
issues concerned the lifting of martial law and amendments to the Constitution. 27 The national
organizations of Sangguniang Bayan presently proposed to settle the issues of martial law, the
interim Assembly, its replacement, the period of its existence, the length of the period for the
exercise by the President of its present powers in a referendum to be held on October 16. 28 The
Batasang Bayan (legislative council) created under Presidential Decree 995 of September 10,
1976, composed of 19 cabinet members, 9 officials with cabinet rank, 91 members of the Lupong
Tagapagpaganap (executive committee) of the Katipunan ng mga Sangguniang Bayan voted in
session to submit directly to the people in a plebiscite on October 16, the previously quoted
proposed amendments to the Constitution, including the issue of martial law. 29 Similarly, the
"barangays" and the "sanggunians" endorsed to the President the submission of the proposed
amendments to the people on October 16. All the foregoing led the President to initiate the
proposal of amendments to the Constitution and the subsequent issuance of Presidential Decree
No. 1033 on September 22, 1976 submitting the questions (proposed amendments) to the people
in the National Referendum-Plebiscite on October 16.
 V

The People as Sovereign.

1. Unlike in a federal state, the location of sovereignty in a unitary state is easily seen. In the
Philippines, a republican and unitary state, sovereignty "resides in the people and all government
authority emanates from them. 30 In its fourth meaning, Savigny would treat "people" as "that
particular organized assembly of individuals in which, according to the Constitution, the highest
power exists." 31 This is the concept of popular sovereignty. It means that the constitutional
legislator, namely, the people, is sovereign. 32 In consequence, the people may thus write into
the Constitution their convictions on any subject they choose in the absence of express
constitutional prohibition. 33 This is because, as Holmes said, the Constitution "is an experiment,
as all life is an experiment." 34 "The necessities of orderly government," wrote Rottschaefer, "do
not require that one generation should be permitted to permanently fetter all future generations."
A constitution is based, therefore, upon a self-limiting decision of the people when they adopt it.
35

2. The October 16 referendum-plebiscite is a resounding call to the people to exercise their

sovereign power as constitutional legislator. The proposed amendments, as earlier discussed,
proceed not from the thinking of a single man. Rather, they are the collated thoughts of the
sovereign will reduced only into enabling forms by the authority who can presently exercise the
powers of the government. In equal vein, the submission of those proposed amendments and the
question of martial law in a referendum-plebiscite expresses but the option of the people
themselves implemented only by the authority of the President. Indeed, it may well be said that
the amending process is a sovereign act, although the authority to initiate the same and the
procedure to be followed reside somehow in a particular body.

VI

Referendum-Plebiscite not

rendered nugatory by the

participation of the 15-year olds.

1. October 16 is in parts a referendum and a plebiscite. The question — (1) Do you want martial
law to be continued? — is a referendum question, wherein the 15-year olds may participate. This
was prompted by the desire of the Government to reach the larger mass of the people so that their
true pulse may be felt to guide the President in pursuing his program for a New Order. For the
succeeding question on the proposed amendments, only those of voting age of 18 years may
participate. This is the plebiscite aspect, as contemplated in Section 2, Article XVI of the new
Constitution. 36 On this second question, it would only be the votes of those 18 years old and
above which will have valid bearing on the results. The fact that the voting populace are
simultaneously asked to answer the referendum question and the plebiscite question does not
infirm the referendum-plebiscite. There is nothing objectionable in consulting the people on a
given issue, which is of current one and submitting to them for ratification of proposed
constitutional amendments. The fear of commingled votes (15-year olds and 18-year olds above)
is readily dispelled by the provision of two ballot boxes for every barangay center, one
containing the ballots of voters fifteen years of age and under eighteen, and another containing
the ballots of voters eighteen years of age and above. 37 The ballots in the ballot box for voters
fifteen years of age and under eighteen shall be counted ahead of the ballots of voters eighteen
years and above contained in another ballot box. And, the results of the referendum-plebiscite
shall be separately prepared for the age groupings, i.e., ballots contained in each of the two
boxes. 38

2. It is apt to distinguish here between a "referendum" and a "plebiscite." A "referendum" is

merely consultative in character. It is simply a means of assessing public reaction to the given
issues submitted to the people for their consideration, the calling of which is derived from or
within the totality of the executive power of the President. 39 It is participated in by all citizens
from the age of fifteen, regardless of whether or not they are illiterates, feeble-minded, or ex-
convicts. 40 A "plebiscite," on the other hand, involves the constituent act of those "citizens of
the Philippines not otherwise disqualified by law, who are eighteen years of age or over, and who
shall have resided in the Philippines for at least one year and in the place wherein they propose to
vote for at least six months preceding the election." 41 Literacy, property, or any other
substantive requirement is not imposed. It is generally associated with the amending process of
the Constitution, more particularly, the ratification aspect.

VII

Freedoms of expression and

assembly not disturbed.

1. There appears to be no valid basis for the claim that the regime of martial law stultifies in
main the freedom to dissent. That speaks of a bygone fear. The martial law regime which, in the
observation of Justice Fernando, "is impressed with a mild character" recorded no State
imposition for a muffled voice. To be sure, there are restraints of the individual liberty, but on
certain grounds no total suppression of that liberty is aimed at. The machinery for the
referendum-plebiscite on October 16 recognizes all the embracing freedoms of expression and
assembly. The President himself had announced that he would not countenance any suppression
of dissenting views on the issues, as he is not interested in winning a "yes" or "no" vote, but on
the genuine sentiment of the people on the issues at hand. 42 Thus, the dissenters soon found
their way to the public forums, voicing out loud and clear their adverse views on the proposed
amendments and even on the valid ratification of the 1973 Constitution, which is already a
settled matter. 43 Even government employees have been held by the Civil Service Commission
free to participate in public discussion and even campaign for their stand on the referendum-
plebiscite issues. 44

VIII
Time for deliberation

is not short.

1. The period from September 21 to October 16 or a period of 3 weeks is not too short for free
debates or discussions on the referendum-plebiscite issues. The questions are not new. They are
the issues of the day. The people have been living with them since the proclamation of martial
law four years ago. The referendums of 1973 and 1975 carried the same issue of martial law.
That notwithstanding, the contested brief period for discussion is not without counterparts in
previous plebiscites for constitutional amendments. Justice Makasiar, in the Referendum Case,
recalls: "Under the old Society, 15 days were allotted for the publication in three consecutive
issues of the Official Gazette of the women’s suffrage amendment to the Constitution before the
scheduled plebiscite on April 30, 1937 (Com. Act No. 34). The constitutional amendment to
append as ordinance the complicated Tydings-Kocialskowski was published in only three
consecutive issues of the Official Gazette for 10 days prior to the scheduled plebiscite (Com. Act
492). For the 1940 Constitutional amendments providing for the bicameral Congress, the re-
election of the President and Vice-President, and the creation of the Commission on Elections,
20 days of publication in three consecutive issues of the Official Gazette was fixed (Com. Act
No. 517). And the Parity Amendment, an involved constitutional amendment affecting the
economy as well as the independence of the Republic was publicized in three consecutive issues
of the Official Gazette for 20 days prior to the plebiscite (Rep. Act No. 73)." 45

2. It is worthy to note that Article XVI of the Constitution makes no provision as to the specific
date when the plebiscite shall be held, but simply states that it "shall be held not later than three
months after the approval of such amendment or revision." In Coleman v. Miller, 46 the United
States Supreme court held that this matter of submission involves "an appraisal of a great variety
of relevant conditions, political, social and economic," which "are essentially political and not
justiciable." The constituent body or in the instant cases, the President, may fix the time within
which the people may act. This is because, first, proposal and ratification are not treated as
unrelated acts, but as succeeding steps in a single endeavor, the natural inference being that they
are not to be widely separated in time; second, it is only when there is deemed to be a necessity
therefor that amendments are to be proposed, the reasonable implication being that when
proposed, they are to be considered and disposed of the presently, and third, ratification is but the
expression of the approbation of the people, hence, it must be done contemporaneously. 47 In the
words of Jameson," (a)n alteration of the Constitution proposed today has relation to the
sentiment and the felt needs of today, and that, if not ratified early while that sentiment may
fairly be supposed to exist, it ought to be regarded as waived, and not again to be voted upon,
unless a second time proposed by [proper body]." 48

IN RESUME

The three issues are: chanrob1es virtual 1aw library

1. Is the question of the constitutionality of Presidential Decrees Nos. 991, 1031 and 1033
political or justiciable?
2. During the present stage of the transition period, and under the environmental circumstances
now obtaining, does the President possess power to propose amendments to the Constitution as
well as set up the required machinery and prescribe the procedure for the ratification of his
proposals by the people?

3. Is the submission to the people of the proposed amendments within the time frame allowed
therefor a sufficient and proper submission?

Upon the first issue, Chief Justice Fred Ruiz Castro and Associate Justices Enrique M. Fernando,
Claudio Teehankee, Antonio P. Barredo, Cecilia Muñoz Palma, Hermogenes Concepcion Jr. and
Ruperto G. Martin are of the view that the question posed is justiciable, while Associate Justices
Felix V. Makasiar, Felix Q. Antonio and Ramon C. Aquino hold the view that the question is
political.

Upon the second issue, Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio,
Aquino, Concepcion Jr. and Martin voted in the affirmative, while Associate Justices Teehankee
and Muñoz Palma voted in the negative. Associate Justice Fernando, conformably to his
concurring and dissenting opinion in Aquino v. Enrile (59 SCRA 183), specifically dissents from
the proposition that there is concentration of powers in the Executive during periods of crisis,
thus raising serious doubts as to the power of the President to propose amendments.

Upon the third issue, Chief Justice Castro and Associate Justices Barredo, Makasiar, Aquino,
Concepcion Jr. and Martin are of the view that there is a sufficient and proper submission of the
proposed amendments for ratification by the people. Associate Justices Barredo and Makasiar
expressed the hope, however, that the period of time may be extended. Associate Justices
Fernando, Makasiar and Antonio are of the view that the question is political and therefore
beyond the competence and cognizance of this Court. Associate Justice Fernando adheres to his
concurrence in the opinion of Chief Justice Concepcion in Gonzales v. COMELEC (21 SCRA
774). Associate Justices Teehankee and Muñoz Palma hold that precinding from the President’s
lack of authority to exercise the constituent power to propose the amendments, etc., as above
stated, there is no fair and proper submission with sufficient information and time to assure
intelligent consent or rejection under the standards set by this Court in the controlling cases of
Gonzales, supra and Tolentino v. COMELEC (41 SCRA 702).

Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino, Concepcion Jr.
and Martin voted to dismiss the three petitions at bar. For reasons as expressed in his separate
opinion, Associate Justice Fernando concurs in the result. Associate Justices Teehankee and
Muñoz Palma voted to grant the petitions.

ACCORDINGLY, the vote being 8 to 2 to dismiss, the said petitions are hereby dismissed. This
decision is immediately executory.

SO ORDERED.
Supreme Court of Appeals of West Virginia

Loomis vs. Jackson; George Loomis, Contestant, against James M. Jackson, Respondent

6 W. Va. 617
Jan. 7, 1873

CHARLESTON.

Syllabus.

3 Under the provisions of the Code oí ~W. Ya., chapter 6, section 18 the special court there
authorized, has a limited jurisdiction. But such jurisdiction necessarily draws to it the right to
hear and determine all questions touching the regularity and legality of the acts of the officers or
persons conducting the election, and making and certifying the returns thereof. It may re-
examine all or such parts of the election returns in said circuit as it may deem necessary, and
correct errors found therein according to law and the truth. In the exercise of such jurisdiction,
such court recognizes the presumption that all officers and other persons engaged in conducting
elections, or in making returns and certifying the results thereof acted in accordance with the
law, until the contrary shall he specifically alleged and fully proved.

*6182. "What questions -were raised by a motion to quash the petition, notices, etc. of
Contestant.

3. It is the intention of section 11, chapter 6 of the Code of W. Va., that every contested election
provided for therein, should be commenced and ended -within a comparatively short space of
time; and that it was not intended to permit an incumbent to hold his office much beyond the
limit of its constitutional term, and thus enable him to carry on a protracted and dilatory contest
with the person certified to have been elected to that office.
4. A party who desires to contest the election of a judge of a circuit court; is required, by the 11th
section of chapter 6 of the Code, to give notice, with specifications, to the party whose right is
contested within sixty days next after the election. The return notice of respondent must be given
to the contestant within thirty days after the service of his notice upon respondent; and all the
depositions taken must be concluded within forty days after the service of the return notice.

6. By section 4 of chapter 6 of the Code, it is expressly declared that: “In contests respecting
seats in the legislature if new facts he discovered by either party after he has given notice as
aforesaid, he may give additional notice or notices to his adversary with specifications as above
prescribed.”

In a judicial contest, the contestant in order to ascertain and collect the facts of the case, may
postpone the service of his notice of contest until the sixtieth day after the election, and in like
manner and for a similar reason, the respondent may delay the service of the return notice until
the thirtieth day thereafter.

6. As new facts or the clue to the discovery of them may for the first time be disclosed by the
return notice itself, new notices with additional specifications of new facts discovered after the
service of the original notice and specifications, and after the expiration of the sixty days, may be
given by the contestant, within the forty days allotted for taking depositions, subject always to
the limitation necessarily implied in sections 5 and 8 of chapter 6, requiring that reasonable
notice of the taking of depositions shall be given to the adverse party.

7. But in every such instance, it must appear by the proper averments that the facts relied on to
authorize the giving of the additional notice or notices, are new facts, and were discovered after
the service of the original notice, and that they are such as the party could not have learned at
that time by the exercise of due diligence, and that they are also material and relevant to the
main question in controversy,

*619.'8. The petition, in a contest for the office of judge, should be addressed to the special
court, and not to the governor, as the one filed in this case. It ought not to contain any prayer for
relief beyond ■what the court is authorized to afford, -which is confined to the duty of certifying
to the governor which of the parties to the contest had been elected to the office of judge, or that
no legal election therefor had been held in the circuit.

9 To invoke the authority vested in the governor by section 13, chap* ter 6, it is necessary that
the contestant should file with the gov-•emor a petition, with copies of his grounds of contest,
notice and specifications. «

Such petition must remain in the governors office; without it h® could have no evidence upon
which to justify his official action.

10 "What principles of law apply to cases of election contests.

11. Many provisions of the law, in regard to the manner of holding and conducting the election
and counting the votes, and certifying the result, must he held to he directory only, and intended
to point out to inexperienced and ignorant persons, who sometimes act as election officers, a
plain, easy and direct way by which they are to attain the great end of their creation, viz: To
ascertain the true result of their election. "When the true result of a legal election ha* been
ascertained, or can he ascertained by the officers charged with the performance of this duty, no
irregularity, mistake or even fraud committed by any of the officers conducting the election, or
by any other person, can he permitted to defeat the fair expression of the • popular will as
expressed in said election.

12. The People v. Oook8N. T. 67, and Cooley’s Constitutional Limitations 75, 617, cited and
approved.

13. "What irregularties are held to he immaterial.

It is affirmed that no irregularity or even misconduct on the part of the election officers, or other
persons, will vitiate an otherwise legal election, unless the result thereof has been thereby
changed, or rendered so uncertain as to make it impossible to ascertain the true result. A different
rule would make the manner of performing a public duty more important than the duty itself.

14. The allegata et probata must agree. Therefore a contestant, either in his petition or notice of
the grounds of contest and specifications, must by direct averments substantially show what was
the result ■of the election as declared by the returning officers, in what m-n ner and to what
extent that result will be effected by the errors &c., complained of in the specifications.

And unless it further appears upon the face of the petition, notice and specifications that the
result of said election will bo so changed by proof of said allegations, as to overcome the
majority of the person who has been declared duly elected, or to show that it is *620impossible
to ascertain the true result, it will be the duty of the court, on motion, to quash the same. The
petition in this ease no containing such averments, the question did not arise upon the pe-' tition.

15. By the provisions of chapter 3, Code of West Virginia, it tvas the intention of the legislature
to create a judicial tribunal in confer" ing upon the boards of supervisors the power to call and
examine witnesses, to compel the production of papers, to open, inspect, examine and count the
ballots, and to make all orders deemed nec-escary to enable them to discharge these duties; and
that their determinations upon that subject should bo entitled to the force and validity of a
judgment, until impeached on the grounds of mistake, corruption or fraud, precisely averred and
clearly proved.

The intention was to avoid the necessity of resorting to contested elections of judges and state
officers except in cases of mistake, corruption or fraud, by providing the people with a tribunal
essentially and peculiary their own, always accessible to them.

16. The legislature did not intend that a legal election should be set aside upon the ground of
illegal votes received, or legal votes rejected, or any ambiguity in the ballots as to the designation
of-the person voted for or of the office intended.
17. All errors, irregularities and illegalities committed at the election, or existing at the time the
election returns are examined hy the boards of supervisors, must, in the absence of averments
and proofs to the contrary, bo taken and held to have been corrected by such boards, and
excluded from their certificates of the correct result. Thom- this it follows that any specification
which alleges errors, irregularities, illegalities or malconduct on the part of the officers, or other
persons, conducting the elections, committed before the action of the board of supervisors was
had thereon, must be held insufficient, unless it is further alleged that such errors were carried
into and formed a part of the result of the election as certified by the boards of supervisors.

18. Fraud is never to be presumed, it must be particularly alleged, especially when the act
charged as a fraud may be innocent. In pleading a fraud, the pleader must by apt words allege in
his pleading every act, fact and intent which necessarily enter into, and constitute that particular
fraud; and these essentials must be alleged with such precision and certainty as to exclude every
construction, except the fraudulent and wrongful purpose complained of; and if, from the face of
the pleading, it is doubtful whether the allegations do in fact amount to that particular fraud or
not, it is not well pleaded.

19. The rights of voters and the duties of persons conducting and certifying elections, considered
and stated.

*62120. A constitutional convention, lawfully convened, does not derive its powers from the
legislature; but from the people. The powers of such a convention are in the nature of sovereign
powers.

The legislature can neither limit nor restrict the exorcise of their powers.

The legality of the election for officers held on the 22nd day of Au. gust 1872, after the
ratification of the new constitution and schedule, is not to be called in question by any court
created or continued by the provisions of that constitution, pourts sit to expound the laws ma.de
by their government, and not to declare that government itself an usurpation.

21. This special court, having no common law jurisdiction, cannot per-mit amendments of
notices and specifications after the time has passed within which the parties themselves may
correct omissions,- and supply defects.

22. The whole of Contestant’s petitions, notices and specifications critically examined serkdum
and quashed.

This is a case of a contested election arising under the provisions of the Code of West Virginia,
as found in chapter 6, sections 2 to 14 inclusive, which are as follows:

2. Any person intending to contest the election of another as senator or delegate shall, within
twenty-one days after the election in case of delegate, and within forty days after the election in
case of a senator, give him notice thereof in writing, and a list of the votes he will dispute, with
his objections to each, and of the votes rejected for which he will contend. If the contestant
object to the legality of the election, or the qualification of the person returned, the notice shall
set forth the facts on which such objection is founded. The person whose election is contested as
delegate shall, within fourteen days after he receives such notice, and the person whose election
as senator is contested shall, within thirty days after he receives such notice, deliver to the
contestant a like list of the votes he will dispute, and of his objections to each, and of tbe rejected
votes be will claim and if he has any objection to the qualification of the contestant, shall specify
in sucb notice the facts-on which the objection is founded. Eacb party shall append to his notice
his affidavit that tbe matters therein set forth, so *622far as they are stated of his own
knowledge, are true? and so far as they are stated on the information of others, he believes them
to be true.

3. Where, however, such contest arises upon a special election to fill a vacancy, held at any other
time than the fourth Thursday of October, the notice, with specifications and affidavit as above,
shall be given by the contestant within ten days after the election, in case of a delegate, and
within thirty days after the election, in case of a s&nator, and by the party whose election is
contested, in the first case within five days, an din the second, twenty days.

4. If new facts be discovered by either party after he has given notice as aforesaid, he may give
an additional notice or notices to his adversary, with specifications and affidavit as above
prescribed.

5. Either party may begin to take the depositions at any time after the delivery of the original
notice by the contestant. But reasonable notice of every such deposition shall be given, and such
notice shall specify the names of the witness to be examined. The depositions may be taken
before a justice, notary, or any officer authorized to take depositions in civil suits; and the officer
before whom they are taken, shall certify and seal up the same, and endorse his name across the
place where they are sealed, and address and transmit the same, by mail or otherwise, to the clerk
of the branch in which the seat is contested. When the petition of the contestant is referred to a
committee, the clerk shall deliver the depositions to such cammittee for examination and report.

6. Subpoenas for witnesses shall be issued by the clerk of the circuit court, or by a justice, upon
application of either party; and witnesses shall be entitled to the same allowances and privileges,
and be subject to the same penalties, as if summoned to attend before the said court or justice in
civil suits.

7. If the contest arise respecting any election held on *623the fourth Thursday of October, the
parties shall finish taking depositions five days at least before the third Tuesday of January next
following. But if it arise upon a special election to fill a vacancy, held at any other time, they
shall finish within thirty days after the election in the case of a delegate, and sixty days in the
case of a senator.

8. Neither party shall have the benefit of any deposition taken otherwise than as aforesaid, unless
further time be given by resolution of the proper branch of the legislature.

9. The petition of the contestant shall be presented to the proper branch of the legislature, within
ten days after its meeting, if the disputed election was held at the regular annual period; or if it
was a special election to fill a vacancy, within twenty-five days after the taking of the testimony
is completed.

10. If it be ascertained that an equal number of legal votes was given for the petitioner and the
person returned, the senate or the house of delegates, as the case may be, in which the contest is
pending, shall declare which of them is elected.

Governor, state officers, and judges.

11. If the election of governor, secretary of the state, treasurer, auditor, attorney general, judge of
the supreme court of appeals, or judge of a circuit, be contested, the contestant must give notice,
with specifications and affidavit, to the person whose election is contested, within sixty days
thereafter ; and within thirty days thereafter the return notice must be given to the contestant.
The parties shall finish taking depositions within forty days after the last mentioned notice is
delivered. The depositions shall be transmitted to the clerk of the house of delegates, to be
delivered by him to the joint committee or special court hereinafter provided for. In other
respects, the regulations contained in this chapter respecting contests for seats in the legislature
shall be observed, so far as they are applicable.

*62412. When the election of governor is contested, the petition of the contestant and the
depositions shall be referred to a joint committee of the two branches, for examination and
report; which committee shall consist of two senators elected by ballot by that branch, and three
delegates elected in the same manner by the house of delegates. The contest shall be determined
by the legislature, both branches thereof sitting in joint session in the hall of the house of
delegates, the speaker of which house shall preside.

13. Where the election of secretary of the state, treasurer, auditor, attorney general, or of a judge
of the supreme court of appeals or a circuit court is contested, the case shall be heard and decided
by a special court constituted as follows: The person declared elected shall select one, the
contestant another, and the governor a third person, who shall preside in said court; and the three,
or any two of them, shall meet at a time and place to be appointed by the governor, and being
first duly sworn impartially to decide according to law and the truth upon the petition, returns,
and evidence to be submitted to them, shall proceed to hear and determine the case and certify
their decision therein to the governor. They shall be entitled to the same pay and mileage as
members of the legislature, to be paid out of the treasury of the state; but their compensation
shall not in 'any case exceed forty-five dollars each, exclusive of mileage.

Costs'of contested elections.

14. The costs of every contested election shall include only the expenses of serving notices,
taking of depositions and the allowances to witnesses; and shall be noted at the foot of every
deposition or set of depositions by the person taking the same. If the contestant fail in setting
aside the election, there shall be awarded against him the amount of such costs incurred or
expended by the person who was returned or declared elected. Otherwise, each party shall pay
his own costs; unless it ap*625pears that the person returned or declared elected was guilty of
fraud or malpractice in the election, or in procuring such return or declaration; in which case
costs shall be awarded against him in favor of the contestant. Where costs are awarded in favor
of either party, the amount thereof shall be ascertained under direction of the branchpoint
session, or court which decides the case, and a certificate thereof, authenticated by the signature
of the presiding officer, shall be delivered to the party in whose favor they are awarded, which
certificate shall have the force of a judgment, and if such costs be not paid within ten days after
the date thereof, the clerk of the circuit court of the county in which the party against whom the
costs were awarded resides may issue execution on such certificate upon its delivery to him in
like manner, as upon a judgment of the said circuit court. But no person contesting the seat of
another in the legislature shall be entitled to pay or mileage if his contest fail.

In pursuance of section 13, above said, the following order was issued by His Excellency John J.
Jacob, Governor of the State of West Virginia:

Executive Department,

December 16th, 1872.

An election having been held by authority of law, in the fifth judicial circuit of this State, on. the
fourth Thursday in August last, for the purpose of choosing a judge of said circuit, and the
governor having, by proclamation issued on the fifth day of October last, declared that at said
election James M. Jackson was elected to the office of judge of the said fifth judicial circuit ; and
George Loomis having given notice that he contested the election of said Jackson to said office,
and also that he had selected B,. S. Brown of the county of Jackson as a member of the special
court to hear and determine the said case of contest, and the said James M. Jackson having given
notice that he had selected as *626a member of said court Samuel Woods of the county of
Barbour, the governor doth hereby select and appoint Benjamin H^Smith of the county of
Kanawha to be a member of; and to preside over the said special court. And the governor doth
order and direct that the said special court constituted, as aforesaid, of the said Benjamin H.
Smith, president, and the said K.. S. Brown and Samuel Woods, orany two of them, meet on the
twenty-eighth day of December eighteen hundred and seventy-two at the capitol in the city of
Charleston; and that they, being first duly sworn impartially to decide according to law and the
truth upon the petition, returns, and evidence submitted to them, proceed to hear and determine
the contested case aforesaid of George Loomis against James M. Jackson, and certify their
decision therein to the governor.

And the governor doth further direct that the said special court certify the number of days each
member thereof shall have been engaged in the trial of said case, and the number of miles
necessarily travelled by him in coming to and returning from the place of meeting; and that the
said special court in all respects proceed according to law; for all of which this shall be their
sufficient authority.

The secretary of state is authorized and directed to make out and transmit to each member of said
special court a copy of this order.

By the Governor: (Signed,) JohN J. Jacob.

(Signed,) JohN M. Phelps.

Secretary of State.

Under the ordinance and schedule of the Constitutional Convention of this State, adopted in
April 1872, an election was held on the 22nd of August 1872, in the counties composing the fifth
judicial circuit, the result of which, as declared by the boards of supervisors of those counties,
was the election of the Hon. James M. Jackson the respondent.

*627On the 5th of October 1872, the Contestant served a notice of contest on the Respondent.

The notice of contest consisted of three grounds and fourteen specifications, in the words and
figures following:

James M. Jackson Esquire.

Sir : You- are hereby notified that I shall contest your election to the office of judge of the fifth
judicial circuit, composed of the counties of Tyler, Pleasants, Ritchie, "Wood, Wirt and Calhoun,
in the State of West "Virginia, which election was held on the fourth Thursday in August 1872.

THE GROUNDS OE CONTEST ARE,

1st. That I was a candidate for the said office of judge in said circuit, at the election aforesaid,
and was voted for as such; that I received a higher number of votes cast at said election for said
office than you did, and am therefore entitled to have the same allowed, declared and certified to
me, by the several boards of supervisors of the counties aforesaid, according to the true vote that
I did receive in said counties respectively for the office aforesaid, and to be commissioned
accordingly; which has not been done.

2nd. That in divers precincts in said counties, there ivas such malconduct at the respective voting
places therein (more particularly set forth in the specifiations following) on the part of the
officers conducting the election, and such interference by others, suffered at the polls as to
preclude a fair expression of the will of the legal voters, then and there voting, and offering to
vote, as to render it impossible to determine at such voting places, who was the choice of said
voters for said office of judge. Notwithstanding which the election officers then and there acting,
and whose duty it is, and was, to declare the result of said election, have declared the same in
favor of said James M. Jackson, wrongfully and to my injury and prejudice in the premises.

*6283rd. That at the voting place in Parkersburg township, Wood county, to-wit, at the Court
House in Park-ersburg, when the ballots were being counted by the inspectors and clerks in the
presence of the supervisor, after the polls were closed, one of the inspectors in taking the ballots
from the ballot box (in two instances at least if not more) found two or more ballots folded or
rolled together, and the names thereon were the same, and my name was on each, as the person
voted for, for judge of the said circuit; and instead of destroying all but one of said ballots in
each instance, according to the law in snch cases made and provided, all of the ballots so found
folded or rolled together were destroyed, and none of them counted; and they were so destroyed
and not counted at your express direction, you being then and there present, cognizant of,
sanctioning and directing the same to.be done..

I therefore claim, that assuming the result of the election to be in accordance with the certificates
of the several boards of supervisors throughout said circuit (after the same are corrected of the
errors hereinafter specified) that the unlawful destruction of the ballots as above stated, would of
itself change the result of the election for said office of judge. •

The following are the specifications of facts and of points relied upon to sustain the above stated
grounds of contest, which facts are given upon information derived from others, except where it
is otherwise expressly stated.

SPECIFICATION 1.

That in Pleasants county aforesaid, the board of supervisors certify (touching said election) that
in said county, for judge of the 5th judicial circuit, James M. Jackson received three hundred and
eighty seven votes, and George Loomis received three hundred and thirty-five votes; whereas in
fact, at the voting place in Grant township in said county of Pleasants I, (the said George
*629Loomis) received at least five votes more than I am there certified to have received, and that
said votes were not counted to me, as they properly should have been; and that the poll books,
tally sheets and ballots for that voting place show this fact.

I shall, therefore, claim the right to have the same properly examined into, and to take proof
thereof. Also that similar mistakes occurred in the count of ballots at one or two other voting
places in Pleasants county to my prejudice, of which I am not now advised with sufficient
accuracy to particularly specify but of which, when I am advised, I shall give you notice if
required? and claim the right to have the same properly examined into, and take the proof as
fully as I might if the same was now herein specifically inserted.

SPECIFICATION 2.

That at the voting place in McKim township in the said county of Pleasants, while said election
was being conducted, and before all the ballots were counted, the ballot box then and there used
was opened, and its contents examined, and nineteen ballots more or less were taken out of said
ballot box by one Hanson Pointer, (or by some other person whose name to this Contestant is
unknown,) a person not then and there an election officer, and having no legal authority to do so;
and the said election was in other respects wholly illegal in this, to-wit: That the supervisor then
and there conducting said election, to wit: One Simpson Jones, acted in the two-fold character of
clerk and of supervisor of said election, contrary to law. And the said election at that place was
conducted generally, “In such a manner as to repel the presumption that the ballots were not
tampered with,” and consequently the poll at said voting place is invalid, illegal and void.
Therefore, I shall claim that the “returns of the votes” then and there taken a't said voting place,
so far as they relate to the office of judge, “shall *630be set aside” for the causes herein stated
and other illegalities.

SPECIFICATION 3.
That in Calhoun county, aforesaid, the board of supervisors certify (touching said election) that
in said county for judge of the 5th judicial circuit, James M. Jackson received four hundred and
sixty-nine (469) votes, and George Loomis received one hundred and eighty-six (186) votes:

Whereas, in fact you did not receive four hundred and sixty-nine votes as certified as aforesaid in
the county of Calhoun, but that said certificate was wrongfully made by the said board as to the
number of votes you were supposed to have received in that county in this, to-wit:

That in Washington township in Calhoun county, you received but one hundred and ten votes,
and yet you are erroneously allowed and certified by the inspectors of said township to have
received one hundred and twelve votes; or two more votes than you did in fact receive.

That in Sherman township in Calhoun county, you received but eighty-eight votes, and yet you
arc erroneously allowed and certified by the inspectors of Sherman township to have received
ninety-eight votes, or ten more votes than you did in fact receive; which two numbers added
make twelve votes that the board of supervisors have crroueously counted in, and made a part
and parcel of the aforesaid number of 469, and certified by them as being the vote that you
received in said county.

I .shall, therefore, claim that this error of twelve votes shall be deducted from your poll in
Calhoun county.

And for further specification in this particular I claim that, in Washington township in Calhoun
county, I received thirteen votes. And yet the inspectors of said township allow and certify me to
have received in said township only nine votes, or four votes less than I did in fact receive. That
the board of supervisors of said county in'certifying the number of votes that I received *631in
that county at 186, as above set forth, did not include in that number the aforesaid four votes. I
shall, therefore, claim to have my poll and the certificates aforesaid corrected in these particulars.

SPECIFICATION 4.

That in Sheridan township^ in the county of Calhoun, at the voting place therefor, on the said
day of election and before the poll was closed, the ballot box then and there used was suffered to
be opened several times, and the ballots handled and examined and tampered with by persons
having no authority to do so, and that other misconduct and irregularities were practiced to such
an extent as to invalidate the pole of that precinct. "Wherefore, I shall claim to have the poll set
aside.

SPECIFICATION O.

That at Petroleum, a voting place in Grant township in the county of Ritchie aforesaid, the
persons who actually conducted said election, and received the greater part of the ballots, and
who decided upon the legality thereof, and counted and disposed of them or a greater part of
them were persons other than the legal officers for conducting said election at thatplaee ; and that
said other persons thus acting were not even sworn, and that other misconduct and irregularities
then and there occurred rendering said poll illegal and invalid.
Wherefore, I shall claim to have the same set aside.

SPECIFICATION 6.

That at the voting place for Burning Springs township in Wirt county aforesaid the following
named persons, to-wit: Jasper Gibson and George Morgan did then and there cast their ballot in
said election for you, for the said office of judge, contrary to law; they nor neither of them being
at that time legal voters and entitled to vote at said election, because of their being minors under t
h age of twenty-one years, and because they had not resided in said county and township the
length of time required by law. I shall, therefore, claim that your poll at *632that place be
diminished by a number corresponding to the number of illegal votes which were then and there
cast for you as herein stated.

specification 7.

That the following named persons, minors and nonresidents of this State, and not entitled to vote
at said election at Parkersburg aforesaid, to-wit: Joseph Cook and Michael Powers, minors, and
the latter a non-resident, also George Roberts a minor and non-resident, and Charles Gambrill a
non-resident and M. Hickey and Taylor Sheets non-residents of Parkersburg township, did
contrary to law and in violation of law, at the voting place in Parkersburg, at the said election,
cast their .ballots for you, for said office of judge, and that the same were received and counted
for you. I shall, therefore, claim that your poll at that place be diminished by a number
corresponding to the number of illegal votes which were then and there cast for you as herein
stated.

SPECIFICATION 8.

I state on my own knowledge that you did, at the voting place in Parkersburg township in Wood
county, to-wit: at the Court House in Parkersburg — while the ballots were being then and there
counted, after the polls were closed and before the count wras concluded, take hold of, handle,
displace and examine a great number of said ballots before the same had been fully counted by
the proper election officers. I shall claim that such acts are improper, unwarrantable and illegal
on the part of any bystander, and more especially on the part of a candidate voted for at the place
where such acts occurred; as leading to well grounded suspicious of unfairness, and that in this
case they operated to my prejudice; and I shall further claim that your entire poll, cast in said
election at Parkersburg, be set aside in consequence.

SPECIFICATION 9.

That] divers persons, not officers conducting said election, but bystanders, having no legal right
to do so, *633yourself among and acting with the number, after the polls were closed at
Parkersburg aforesaid, and while the ballots cast at said election were being counted, and before
the count was concluded did handle, displace, and examine a great number of said ballots before
the same had been fully counted by the proper election officers. Wherefore I shall claim that
your poll at said voting place be set aside.
SPECIFICATION 10.

That after said polls at Parkersburg aforesaid were closed, and the ballot boxes then and there
used were opened by the inspectors, preparatory for a count, the ballots were not taken out one at
a time in the manner prescribed by law; but on the contrary thereof, the ballots, or a greater part
if not all of them, were unlawfully taken out of the ballot boxes then and there used, culled and
separated into different parcels, and laid out upon a table, and this was done previous to “One of
the inspectors reading from said ballots the designation of the offices to be filled,” as required by
law, thereby increasing the opportunities for said ballots to be tampered with; and this was done
by your express direction.

I shall, therefore, claim that the vote which you are certified to have received at Parkersburg as
aforesaid, for the said office of judge, to wit: 665 be deducted from your poll.

SPECIFICATION 11.

That at the voting place in Parkersburg precinct, Wood county, to wit: at the court house in
Parkers-burg, when the ballots which had been cast at said election, were being counted by the
inspectors and clerks in the presence of the supervisor, after the polls were closed, one of the
inspectors in taking the ballots from the box in two or more instances, “Found two or more
ballots folded or rolled togetherand “The names thereon were the same; and my name wras on
each and every of said ballots, as the person voted for, for judge of the *634said circuit court and
instead of destroying all but one of said ballots, in each instance of like occurring, according to
the law in such cases made and provided — all of the ballots so found folded or rolled together,
were destroyed, and none of them counted; and they were so destroyed, and none of them
counted at your express direction ; you being then and there present, cognizant ofj sanctioning
and directing the same to be done.

That after as many ballots were counted as were equal to the number of votes entered upon the
poll-books, there wras an excess of at least three ballots remaining in one of the ballot boxes,
with my name on each of said ballots, as the person voted for, for judge asu aforesaid; Avhich
facts you knew, and directed said three ballots to be destroyed ; and at your direction they were
destroyed, and not counted for me as they might have been, but for your own action in the
premises, inasmuch as the said three particular ballots would not necessarily have been the three
ballots remaining in excess "of the number which was equal to the number of votes entered upon
the poll books, had it not been for the illegal manner of taking the ballots from the box at your
express direction ; as hereinbefore stated.

I shall therefore claim, that assuming the result of said election to be in accordance with the
certificates of the several boards of supervisors throughout said circuit, (after said result is
corrected of the errors set forth in the 1st and 3rd of the foregoing specifications) that the illegal
destruction of the ballots as in this specification stated, would of itself change the result of the
said elec-ion. 'Wherefore I shall claim that the vote which you are certified to have received at
Parkersburg aforesaid, for the said office of judge, to-wit: 665 be deducted from your poll.

specification 12.
That after the ballots which had been cast in said election at the various voting places in the
county of Wood aforesaid, and after they had been respectively en*635■closed in an envelope,
and sealed up by the inspectors ■at each and every of said voting places, and after the same were
endorsed according to laiv, and after the inspectors of the said several voting places had
delivered the ballots so sealed up to the clerk of the board of supervisors of their said county, to
wit; on "Wednesday the 28th day of August 1872, at the court house in Parkers-burg aforesaid,
and before the supervisors of said county, then and there convened, had examined the several
inspectors’ certificates laid before them by their clerk, you did cause the sealed package of
ballots, containing the ballot cast at Parkersburg, on the day of election aforesaid, to be broken
open and examined, and the ballots therein contained to be handled and misplaced, without a
majority of the said board of supervisors being present at the time and place when and where
they were so broken open, examined, handled and misplaced; but on the contrary thereof, there
were only two of the supervisors present when and where said actings and doings took place, to
wit; Wm. II. Stallman and John W. Davis, who in conjunction with yourself, and at your
instance, and by your procurement, did unlawfully break open, the sealed package of ballots
which contained all the ballots cast at said election at Parkersburg for said office of judge to wit;
between one and two thousand ballots; and after you had so handled, examined and meddled
with the same, you left them in a loose and unsafe condition, and they were not •again sealed up
along with the original envelope in another envelope; all of which actings and doings transpired
in my absence, and without my having notice thereof, and without my consent; and in
consequence of said unlawful doings I have been injured and prejudiced in the premises. The
said two supervisors and yourself n counting the ballots as aforesaid, did ascertain and find the
fact to be, that you received a less number of votes for the said office of judge than the
_inspectors of Park-*636ersburg township had certified for you, although the said two
supervisors reported to the full board, “That the certificate of the inspectors is correct.”

I further charge and specify, that one George W. Neale, a relative, political and partizan friend of
yours, was a candidate in Parkersburg township for the office of justice, and running on the same
ticket with yourself; that one Ellis Mather was an opponent of said Neale for said office, and was
running on the same ticket with myself ; that the inspectors certified that said Neale received for
said office of justice 629 votes, and that Mather received 643 votes, or a majority of 14.

That afterwards, to wit: after the package of ballots had been broken open, as above stated, said
Neale gave notice that he would contest the election of said Mather; whereupon, .such action was
had that a re-count of their vote was ordered which being done, resulted as follows. George W.
Neale received 634 votes, and Ellis Mather received 621 votes, thus differing from the inspectors
certificate, and giving Neale a majority of 13 votes.

That afterwards, to-wit:on tho^th of September 1872, the board of supervisors, not satisfied with
said action proceeded to ascertain and declare the true result: accordingly such action wras had
that a re-count of the vote between said Neale and Mather by the board resulted as follows; that
Neale received 635 votes, and Mather 630 votes, or 5 less than Neale, thus differing from all
former counts, and showing that the ballots aforesaid had been tampered with. I therefore-
charge, and shall claim that the breaking of the package of the Parkersburg ballots as aforesaid,
at your instance, amounted to ór resulted in a tampering with said ballots to my prejudice, by
reason whereof such confusion has been occasioned with said ballots that I am forever precluded
from ascertaining the very truth as to the result of the vote for judge in Wood county; all of
which more fully appears by the record of the board of supervisors of Wood county, touching the
matter of the re-count of the votes herein referred to. *637A copy of which record will ho
furnished to be used as evidence in the trial of this contest.

■ I shall, therefore, claim that your action in the premises invalidates the vote of Wood county,
which you were supposed to have received, to-wit: 1877, and that the same shall be deducted
from your poll; or if the legal effect of such action is not to invalidate your whole vote in said
county, I shall demand to have the vote which you are certified to have received in Parkersburg
aforesaid, for the office of judge, to-wit: 665 deducted from your poll.

SPECIFICATION 13.

That at a voting place in Walker township, to-wit: at Volcano in Wood county aforesaid, the
officers then and there conducting said election wholly failed and omitted to have entered by the
clerks then and there acting the contents of the ballots as they were read on tally papers, under
the supervision of the supervisor and inspectors, by suitable marks made opposite to, or under
the name of each person voted for, so as to show the number of votes received by every person
for any office to be filled, and especially for the office of judge for the 5th circuit aforesaid, as
required by the 59 section of chapter 3 of the Code of West Virginia.

Therefore 1 shall claim that the “returns of the votes” then and there taken at said voting place,
so far as they relate to the office of judge aforesaid, “shall beset aside” for the causes herein
stated and for other illegalities.

SPECIFICATION 14.

That at Spring Creek, a voting place in Wirt county, aforesaid, the polls were closed on the day
of said election at four o’clock p. m., and not kept open until sun down of that day, in
consequence whereof numbers of voters were prevented from voting at that place, to my
prejudice in the premises; and other irregularities then and there occurred, to-wit: that during the
time the vote was being then and there taken, the ballot box was on *638three different times
opened, and the vote counted; all of which was to my prejudice in ihe premises.

“Wherefore I shall claim to have the returns of the votes then and there taken set aside.

All of which acts and doings, irregularities and illegalities complained of in the foregoing
grounds of contest and specifications were to my injury and prejudice in the premises. Wherefore
I claim to have the same legally enquired into and corrected, verily believing that when the same
is done I will be shown to have been legally elected to the office of judge of the 5th judicial
circuit at the election aforesaid; and I shall therefore claim my right to he commissioned as such.

Respectfully &c.

George Loomis.
State op West Virginia.

Wool County, to-wit:

I, George Loomis, hereby declare that the matters set forth in the forgoing grounds of contest and
specifications so far as they are stated on my own knowledge are true, and so far as stated on the
information of others I believe them to be true.

George Loomis.

Subscribed and sworn to before me, a Notary Public for said county, this 5th day of October
1872.

J. S. Nigi-i,

Notary Public.

Served a copy of the within notice, grounds of contest and specifications on James M. Jackson,
by delivering the same to him in person on the 5th day of October 1872.

W. J. Hill.

Sheriff Wood Co.

The Respondent served his answer and counter notice upon the Contestant within the time
provided by law; which are in the words and figures following:

*639To George Loomis, Esq.

You are hereby notified that I shall rely upon the facts and proofs hereinafter set out to shew that
I was legally elected to the office of judge of the 5th judicial circuit, composed of the counties of
Tyler, Pleasants, Pitchie, Wood, Wirt aud Calhoun in the State of West Virginia, at the election
held on the fourth Thursday in August 1872.

First. “I was a candidate for the said office of judge in said circuit at the election aforesaid, and
was voted for as such, and I received a higher number of votes cast at said election-for said
office than you did;” and that the several boards of supervisors of said several counties
composing said circuit, haying met on the 28th day of August 1872, as required by law “To
carefully and impartially ascertain the result of said election in their said several counties,” and
to make the proper certificates of such result, did carefully and impartially ascertain the result of
the election for judge of said circuit as aforesaid, and did make the certificate of such result as
required by law, and did transmit to the governor of the State of West Virginia a certificate in
due form of law of such result in each and every county composing said circuit, from which said
certificates so made as aforesaid, it does appear, that I, the said James M. Jackson, did receive
the highest number of votes cast at said election for the office of judge of said circuit, and that
the same was duly allowed, declared and certified to me, by the said several boards of
supervisors according to the true vote that I did receive, for the office aforesaid, and for which I
shall claim to be commissioned accordingly; and you did not receive a higher number of votes
cast at said election for said office of judge than I did, and therefore you are not entitled to have
the same allowed, declared and certified to you, by the several boards of supervisors of the
counties aforesaid. Which said several original certificates of the *640said boards of supervisors
of the several counties composing said circuit, are on file in the office of the governor of the
State of West Virginia; which said several certificates are hereby referred to and relied on as
evidence of such facts.

Second. That the governor of the State of West Virginia aforesaid did, according to the statute in
such case made and provided, ascertain and make proclamation that I, the said James M.
Jackson, was at the election aforesaid duly elected judge of the said judicial circuit composed of
the counties aforesaid; which said proclamation now on file in the proper office is hereby
referred to, and relied on as evidence of such fact.

Third. That as to the said ground of contest mentioned in your notice, alleged to be the second,
and in which you aver that there “Was malconduct at the respective voting places in said several
counties on the part of the officers conducting the said election, and such interference by others
suffered at the polls as to preclude a fair expression of the will of the legal voters then and there
voting and offering to vote.” I, the said James M. Jackson, deny in whole and in part, that there
was any such malconduct or interference, as you have averred in your said second ground of
contest, as to preclude a fair expression of the legal voters then and there voting and offering to
vote, or which rendered it impossible to determine at such voting places who was the choice of
said voters for said office of judge. And I, the said James M. Jackson, further aver that the said
election officers fairly and properly declared the said election in my favor, and not wrongfully
nor to your injury and prejudice in the premises as you have alleged.

That as to the said third ground of contest mentioned in your notice, I, the said James M.
Jackson, deny that the facts, statements and circumstances set up therein are true — that it is not
true, as I am informed and believe, that at the voting place in Parkersburg, to-wit; at the court
house, that one of the inspectors in taking the ballots from *641the ballot box, after the polls
were closed, in any instance found two or more ballots folded or rolled together on which the
names were the same, and on which your name was on each of said ballots respectively as the
person"voted for as judge of the said circuit, and that the same were destroyed in the manner yon
have alleged, in your third ground of contest. And I, the said, James M. Jackson, do expressly
aver that if any such ballots were destroyed, and not counted as you allege, that'they were not so
destroyed and not counted by my express direction, nor was I cognizant of, sanctioning or
directing the same to be done. And I aver that even if the matters and things by you in said third
ground of contest alleged are true, they would not of themselves change the result of the election
of said office of judge.

That as to the matters contained in specification 1, mentioned in your notice, I, the said James M.
Jackson, as to the charge in relation to the vote of Grant township in the county of Pleasants, do
say that I am not advised as to the truth of the facts alleged in relation to the said vote in said
township of Grant; but call for full and strict proof of the same; and as to the residue ■ of said
specification, the same is too vague and indefinite for me to reply thereto, except that the same is
not true so far as I am informed and believe.

And as to specification 2, the matters and things therein contained are not true, as I aminformed
and believe. And I aver that the said election at said voting place in McKim township in
Pleasants county was fairly and impartially conducted, and that the return of the votes taken at
said voting place, so far as they relate to the office of judge aforesaid, should be counted.

And as to specification 3, mentioned in your notice, that so far as the matters contained therein,
in reference to the vote cast at Sherman township, Calhoun county, that while the tally sheets
shew that I received eighty-eight votes, yet the officers conducting said election at the voting
place in said township of Sherman in said *642county of Calhoun, did certify that said election
was fairly and impartially held according to law, and that the result thereof was as follows: For
the office of judge aforesaid, that I, the said James M. Jackson, received ninety-eight(98)votes,
and that you, the said George Loomis, received nine (9) votes for the said office of judge; which
said certificate of the returns of said election, held at the voting place in Sherman township, in
said county of Calhoun is relied on.

And as to the return of the votes cast at the voting place in Washington township in said county
of Calhoun, the matters and things therein alleged are not true and you are referred to
specifications No. 29 and 30 of this, my return notice, for a more specific statement of matters of
fact in relation to said vote cast in said Washington township.

And as to specification 4, the matters and things therein contained arc not true, as I am informed
and believe. And I aver that even if they were true as therein alleged, it would not invalidate the
returns of the election held at that voting place.

And that as to specification 5, mentioned in your said notice, the matters and things therein
contained are not true, as I am informed and believe. And I aver that even if they were true, they
would not render illegal and invalid the return of the election held at Petroleum ? Nitchie county,
W. "Va.

And that as to specification 6, mentioned in your said notice, I am not informed of the matters
and things therein contained; and demand strict and legal proof thereof.

And that as to spccfication 7, mentioned in your said notice, I am not informed as to the truth of
the same^ and demand strict and legal proof thereof.

And as to specification 8, the matters and things therein contained are nottrue as alleged. And I
aver, that I, the said James M. Jackson, did not take hold of, handle, displace and examine a great
number of said ballots, be*643fore the same had been counted by the proper officers. And I aver
that I did no acts that were improper, unwarrantable or illegal on my part, which would lead to
well grounded suspicions ot unfairness, or which in this case did operate to your prejudice. And I
aver that my conduct at the said election in no particular did illegally or fraudulently operate to
your prejudice; and, therefore, that the entire poll cast for me at said election should not be set
aside and not counted.
And as to specification No. 9, mentioned in your said notice, the matters and things therein
contained are not true in manner "and form as therein alleged; and that even if the same were
true, it would not invalidate my poll received at said election at said Parkersburg voting place.

Andas to specification No. 10, mentioned in your said notice, the matters and things therein
contained are not true in manner and form as therein alleged; and that even if the same Averc
true, it would not invalidate my poll received at said election at said Parkersburg voting place.
And I aver that the manner in which said ballots were counted, was not done by my express
direction as you allege.

And as to specification No. 11, mentioned in your said notice, the matters and things therein set
out are not true as therein alleged. And I refer you to my answer to your second ground of
contest as a further statement upon my part to so much of said specification as refers to the
destruction of ballots found folded and rolled together. And as to the residue of said
specification, I aver that I was not present at the time the ballots were counted out and concluded
and it was ascertained that there was an excess of three ballots over and in excess of the names
entered on the poll books; nor did I give any directions in regard to their destruction; which facts
you knew, or could have known upon proper inquiry at the time you prepared said specification
charging that said *644ballots were destroyed by my express direction. And, therefore, the vote
certified to me as having been cast in my favor at Parkersburg aforesaid, for the said office of
judge, to wit: 665 should not be deducted from my poll as claimed in said specification.

And as to specification No. 12, mentioned in your said notice, the matters and things therein
contained are not true in manner and form as therein alleged, and you well knew the same to be
not true as therein stated. I aver that I did not break open the sealed package of envelopes, or
cause them to be broken open as therein referred to; that I did not handle, meddle with and
misplace the same or any of them; and you well knew that all that was done at the time referred
to, was by virtue of the authority of the board of supervisors. All of which will appear by a
certified copy of their proceedings in regard to a recount of the ballots cast at Parkersburg for the
office of judge, hereby referred to, and shall be used as evidence on the trial of this contest. And
I aver that nothing was done by me in the premises which should “Invalidate the vote which I
received in Wood county, to wit: 1877, and that the same should be deducted from my poll, or if
that cannot be done, that the vote I am certified to have received in Parkersburg aforesaid, for the
office of judge, to wit: 665 should be deducted from my poll;” but on the contrary, I did nothing
but what I was warranted in doing by the law in such a case, and am, therefore, entitled.to have
all said votes counted in my favor.

That in regard to specification No. 13, the matters and things are not true as therein are alleged,
as I am informed and believe; but that the officers conducting said election at Volcano in Walker
township, did not wholly fail and omit to have entered by the clerks, then and there acting, the-
contents of the ballots as they were then and there read on tally papers, under the supervision of
the supervisor, by suitable marks made opposite to, or under the name of each person voted for,
so as *645to shew the number of votes received by every person for any office to be filled, and
especially for the office of judge of the 5th circuit aforesaid, as required by the fifty-ninth section
of chapter three of the Code of West Virginia; but on the contrary such tally sheets were kept as
required, and therefore the returns of the votes, then and there taken, at such fvoting place should
not be set aside for the causes therein stated, and for other irregularities; but I-*shall rely upon
said return of said votes in my favor.

And as to specification No. 14, as to the matters and things therein specified, I am informed
and'believe they are not true; and even if they were tiue, I claim that it would not invalidate the
said election at said voting place, at Spring Creek aforesaid, and the votes then and there taken
set aside. I shall therefore rely upon the return, of the votes cast for me at the said election for the
office of judge aforesaid, at the voting place in Spring Creek, in Wirt county aforesaid.

And I further give you notice, and specify the following matters and things which will be relied
on by me, as shewing that you are not elected to said office of judge of said 5th judicial circuit;
and that you did not receive a majority of the votes cast at said election for said office; and that
you did not receive a higher number of votes than I did; and also giving you a list of votes cast
for you at said election for said office, which votes I will contest, and of my objections to each.

First. I charge that at the election places in Ritchie county herein named, to wit: at Cairo in Grant
township, at Irelands in Union township and Smithville in Murphy township, the names entered
on the poll books were not, as soon as possible after the polls were closed, counted by the
inspectors and clerks in the presence of the supervisor, and the number thereof set down in words
at length, at the foot of the lists, and then signed by the inspectors and clerks as required by law;
in order *646to prevent fraudulent additions to the votes legally cast at said elections; as will
appear by an inspection of the poll books for said several voting places, now on file in the office
of the clerk of the board of supervisors of said county of Ritchie. Wherefore, I shall claim to
have the whole poll cast at said several voting places set aside and excluded from the count of
the vote for the office of judge as aforesaid; which being done will give me 578 votes, and you
497 votes, and giving me a majority of 81 votes in said county of Ritchie, instead of a majority
of 72 votes in your favor as certified by the board of supervisors of said county of Ritchie. And I
shall therefore claim to have said certificate corrected accordingly.

Second. I charge that the said election for said Cairo voting place in Grant township in said
county of Ritchie, was not held at the place specified bylaw for holding elections; but was held at
the house of one Ormsby, in the town of Cairo, a place at which the elections for said voting
place had not theretofore been held, and with-' out ever having been altered or changed to said
house by authority of law; the house of said Ormsby not having been prescribed by law as the
place for holding said election. Wherefore, I claim that the votes cast at Cairo in Grant township
in said county, shall be set aside and excluded from the count of the vote for the office of judge
in said county of Ritchie; which being done, will give you a majority of 54 votes in said county
over me, instead of 72 votes as returned; and thereby increasing my majority in said circuit to 38
votes.

Third. I charge that the said election for said Irelands voting place in Union township in said
county of Ritchie, was not held at the place specified by law for holding elections for said voting
place, to wit, at “Irelands,” to wit, the house of Thomas Ireland, in said township and county; but
was held at an out house or shed some distance from said “Irelands.” Wherefore, I claim that the
votes cast at said voting place, purporting to be at “Ire-*647lands” in Union township, shall be
set aside and excluded from the count oí the vote for the office of judge in said county of
Ritchie ; which being done will give me 27 majority in said coúnty over you, and a majority in
said circuit of 119 votes.

Fourth. I charge that the officers conducting the election at the court house in the township of
Union in said county of Ritchie, did not, as soon as possible after the polls were closed on said
election day, proceed to count the names entered on the poll books; nor did they then proceed to
perform any of the duties required of them by the 59th section of chapter 3 of the Code of West
Virginia; but on the contrary, they deposited the ballot box containing the ballots, without
locking or sealing the said box, in the office of the clerk of the circuit court of said county of
Ritchie; the said clerk being a candidate on the same ticket, to wit, the Republican or Opposition
ticket, with you, the said George Loomis; the said ballot box containing said ballots, not
remaining in the immediate custody of the supervisor and inspectors, or any one of them, after
the polls were closed; but said ballot box containing said ballots, was allowed to remain out of
their custody, and in the clerks office aforesaid, from sun down on the day of election until after
breakfast the next day, a period of about twelve hours, without warrant of law and without any
necessity whatever; but with negligence and misconduct amounting to fraud.. And I charge, upon
my information and belief, that the said ballot box at said voting place in said township, so
containing the ballots cast thereat as aforesaid, during said space of time, to wit, twelve hours,
did not remain in the immediate custody of the supervisor and inspectors of said election so held
in said township, or in the immediate custody of any one of them with the consent of the others.
And I further charge, that said ballot box of said voting place in said township, being so left as
aforesaid, during the time aforesaid, ivas not carefully sealed so that it could not be opened, or
any ballot taken *648therefrom, or entered therein, without breaking the seal; and that said
supervisors and inspectors did not, nor did any or either of them, write their names or name
across the places where it should be sealed when it was so placed as aforesaid, as they were
required by law so to do. Wherefore, I shall claim to have the votes cast at said election at the
court house of said Ritchie county, set aside and excluded from the count of the vote for the
office of judge in said county of Ritchie; which being done will give me 54 majority over you in
said county, and in said circuit a majority of 146 votes.

Fifth. I charge that the officers conducting the election at “Irelands” in the township of Union in
said county of Ritchie, did not, as soon as possible after the polls were closed on said election
day, proceed to count the names entered on the poll books; nor did they proceed to perform any
of the duties required of them, by the 59th section of chapter 3 of the Code of West Virginia.
And I further charge that at noon or dinner time, on the day of the election, the said officers of
said election of said voting place at Irelands, did place the ballot box containing the ballots,
without locking or sealing the said box, on the banister of the porch, or some- other support of
the out house, shed or building, where said election was held, and did suffer the said box
containing said ballots, to remain for the space of one hour or more without being sealed, locked
or written upon as required by law ; and without being kept where it might be seen by the voters
voting atsaid voting place; and without tire said box remaining in the immediate-custody of the
supervisor and inspectors or any one of them, with the consent of the others, without warrant of
law, without any necessity whatsoever; but with negligence and misconduct amounting to fraud.
Wherefore, I shall claim to have the votes cast at said voting place at “Irelands,” set aside and
excluded from the count of the vote for the office of judge in said, county of Ritchie,. *649which
being done will give me 27 majority jin said county, and a majority in said circuit of 119 votes.
Sixth. I charge that the officers conducting the election in Smithville in Murphy township in said
county of Ritchie, to-wit, the inspectors, or the supervisor and one inspector, did not, as soon as
there suits were ascertained, of the election held at said voting place, sign two certificates
thereof, to the effect prescribed in the 61st section of chapter 3 of the Code of West Virginia; nor
did they sign two certificates corresponding in all respects with each other, and containing
complete returns of the polls taken at said place of voting for every office to be filled; and more
especially for the office of judge of the 5th judicial circuit; but the said inspectors, or the
supervisor and one of the inspectors, wholly failed and neglected so to do, and that therefore
there are noUegal and proper returns of the result of the election held at said voting place.
Wherefore, I shall claim to have the votes cast at said election at Smithville in Murphy township
in said county of Ritchie, set aside and excluded from the count of the vote for the office of judge
in said county of Ritchie; which being done, will give you a majority of 36 votes in said county
over me instead of 72 votes as returned, and thereby increasing my majority in said circuit to 56
votes.

Seventh. I charge that the following persons voted for you in said county of Ritchie, and that the
same were received and counted for you at the several voting places set opposite their names,
and that said votes were illegal and ought not to be received and counted for the reasons stated
herein : -

At Irelands voting place, Martin M. Mitchell voted for you. He was a minor under the age of
twenty-one years, and therefore not entitled to vote.

At the court house voting place in said county, John W. McDaniels voted for you he being at the
time a non-resident of Union township in which said voting place is, and therefore not entitled to
vote therein.

*650And also that at said court house voting place in said township, Zachariah Pierpoint and
Joseph Wey voted for you; they at the timé being minors under the age of twenty-one years, and,
therefore, not entitled to vote. I shall, therefore, claim to have your majority in said'county
diminished by four votes, and my majority in the circuit increased four votes, making my
majority in said circuit 24 votes.

Eighth. I charge that at the voting place in Tucker township in Wirt county, the officers who
opened the polls, and proceeded to receive the votes cast at said voting place, were not permitted
to continue to act as such; but that one John Eisher who was sworn as an inspector, did act as
such for a good space of time, and did receive the votes of those who offered to vote at said
voting place; and after acting as such he was displaced, and one George Stephens substituted in
his stead, and continued to act as such until the polls were closed, and that said Fisher did not
certify the result of said election. That at said voting place, the polls were closed on the day of
said election at about 4 o’clock P. M., and not kept open until sundown of that day; that the
ballot-box was opened at sundry times during that day, and the vote counted and that the whole
vote was counted before sundown of said day, and the polls closed before that time; and other
irregularities then and there occurred to my prejudice, in this, that numbers of voters were
prevented from voting at that place, who would have voted for me had not such irregularities
occurred; all of which was to my prejudice in the premises, in this, that you, the said George
Loomis, received a majority of the votes cast at said voting place. Wherefore, I shall claim to
have the said poll set aside and excluded from the count of the votes for the said office of judge
in said county of Wirt; which being done will give me a majority in said county of 141 votes, and
a majority in said circuit of 33 votes.

*651Ninth. I charge that the following persons voted for yon in said county of Wirt, and that the
same were received and counted for you at the several voting places set opposite their names,
and that said votes were illegal, and ought not to be received and counted for the reasons stated
herein:

At the court house in Elizabeth township in said county of Wirt, Frank McCoy, Ellis Williams,
Jesse Vernon, Thomas Hickman, jr. and Samuel Redding voted for you; each one of said votes is
illegal in this, that the persons casting the same were minors, under the age of twenty-one years,
and therefore not entitled to vote.

That at the same voting place, to-wit: at the court house aforesaid, Thomas Laylong voted for
you; said vote is illegal in this, that the said Laylong was a foreigner, born out of the United
States of America, and had not been naturalized according to law', and therefore was not a citizen
of the United States, or of the State of West Virginia, and therefore not entitled to vote therein.

That at the voting place in Burning Springs township in said county of Wirt, D. S. Eulkerth voted
for you; said vote is illegal, in this, that said Fulkerth was not a resident of Wirt county or
Burning Springs township; but -was a resident of Wood county in the State of West Virginia, and
therefore said Falkerth was not entitled to vote at said voting place in Burning Springs township
in said county of Wirt.

That at the voting place at Newark in Newark township in Wirt county aforesaid, G. V.L. Grant,
voted for you; said vote is illegal, in this, that said Grant was a nonresident of Wirt county and
Newark township ; but was a resident of Wood county aforesaid, and therefore said Grant was
not entitled to vote at said voting place in Newark township in said Wirt county.

That at the voting place in Spring Creek township in said county of Wirt, Benjamin G. Hopkins
and Abram E. Clark voted for you; said votes are illegal, in this, *652that said Hopkins is a
minor, under the age of twenty-one years, and therefore not entitled to vote; and the said Clark
was and is a non-resident of said Spring Creek township, and therefore not entitled to vote
therein.

I shall, therefore, claim to have your vote in said county of Wirt diminished by a number
corresponding to the number of illegal votes, which were cast for you as herein stated, which
being done, malees my majority in said county to be 137 votes, instead of 128 votes as certified,
and making my majority in said circuit of 29 votes.

Tenth. I charge that in the following townships in the county of Wood, and at the several voting
places therein, to-wit: Rockport in Steele township, Ogdens in Union township, Walker’s Station
in Walker township, and E. S. Butchers in Slate township, the names entered on the poll books
respectively, in said several townships, were not counted by the inspector and clerks in the
presence of the supervisor and the number thereof set down in words at length at the foot of the
lists, and then signed by the inspectors and clerks respectively, as required by law, in order to
prevent fraudulent additions to the votes legally cast at the voting places in said several
townships, as will appear by reference to the poll books and returns of said election held in said
townships as aforesaid, on file in the office of the clerk of the board of supervisors of Wood
county aforesaid. And I further charge that there are no legal and proper returns of the number of
persons who voted at said election in the said several townships of Steele, Union, Slate and
Walker Station in Walker township in said Wood county; and that the said returns cannot be
counted against me, in this your contest for the office of judge of the said circuit; and the same
not being counted, but excluded* I shall claim that then the whole vote given you at said voting
places, over and above my vote at the same, being your majority therein, shall be added to-my
majority *653in "Woo'd county, thereby making my majority in said county 257 votes, and my
majority in the circuit 221 votes. \

Eleventh. I charge that after the polls at E. S. Butchers in Slate Township had been opened, and a
large number of votes received, that the officers conducting the election at said voting place, did
proceed to open the ballot box before sundown of that day and did take all of said ballots out of
said box, and they were not taken out one at a time as required by law, but were placed in piles
upon a table, and in a loose manner over the table; and this was done previous to “one” of the
inspectors reading from said ballots the designation of the offices to be filled, and the names of
the persons to be voted for, for each office, “in¡¡the presence of all the other officers,” as
reqnired by law, thereby increasing the opportunities for said ballots to be tampered with.

And I further charge that the said officers conducting said election at said voting place, did
receive votes while they were counting the ballots aforesaid to my prejudice.

And I further charge that while the said ballots were so scattered upon said table, uncounted and
unprotected, the said officers of election, or all but one of them, did go off, and absent
themselves from the room wherein they were contained; the said ballots not being in the ballot-
box, and carefully sealed, so that it could not be opened, or any ballot taken therefrom or entered
therein without breaking the seal; which seal should have the names of said officers written
across the place, where it was sealed; all of which was done without warrant of law, without any
necessity whatever, but with negilence and misconduct amounting to fraud, whereby said ballots
could be tampered with to my prejudice.

"Wherefore, I shall claim to have the votes cast at said election at E. S. Butchers in said Slate
township, set aside and excluded from the count of the vote for the office of judge of said circuit
in said county of Wood; *654wbicb being done will give me 115 majority in said county, and a
majority in said circuit of 79 votes.

Twelfth. I charge that, after the polls at Rockport in Steele township in said county of Wood,
were closed, and the ballot box opened, the officers conducting said election, to-wit, one of the
inspectors, did not take from said ballot box,'“One ballot at a time, in the presence of all the other
officers, and read therefrom the names of the offices to be filled, and the names of the persons
voted for, for each office, and hand the ballot to the other inspector, who should be satisfied that
it was z’ead correctly;” but on the contrary, took all of said ballots out of said box and put them
on a table and counted them over and placed them in piles over the, table, and so carelessly ■and
loosely conducted the counting of said ballots, as to render uncertain the result of said poll at said
voting place, and afiord moans for tampering with said ballots ‘to my prejudice.

And I further charge that the officers conducting the election at said voting place, opened the
ballot-box at about 4 o’clock, p. M., of the day of the election, and proceeded to .count the same,
and after counting a portion thereof, ceased and took other votes then and there offered, and then
proceeded to count the ballots again, and after counting for some time, adjourned for the space of
one hour, leaving the said ballot box unsealed and not endorsed as required by law; and then
proceeded to count and tally again, and after awhile adjourned until next morning, leaving the
said ballot box still unsealed and not endorsed as required by law; and said ballot box so
remained until about 8 o’clock, A. M. of the next day, thereby affording ample opportunity for
the perpetration of fraud upon the same.

I shall, therefore, claim to have the votes cast at said election at Rockport in Steele township, set
aside and excluded from the count of the vote for the office of judge of said circuit in said county
of Wood; which being *655done will give me 112 majority in said county, and in said circuit a
majority of 76 votes.

Thirteenth. I charge that at the voting place in Union township in Wood county, to-wit: Ogdens,
the polls were not closed on the day of said election at sundown* as required by law; and that
votes were received and allowed .after dark-upon said day to the number of nine or thereabouts,
which said votes were counted and allowed to you-, wherefore I shall claim to have the votes
then and there taken, set aside. And I further charge, that the officers conducting the election at
said voting place in said Union township in said county, to-wit: the inspectors, or the supervisor
and one inspector, did not, as the results were ascertained of the election held at said voting
place, sign two certificates to the effect prescribed in the 61st section of chapter 3, of the Code of
West Virginia; nor did they sign two certificates corresponding- in all respects with each other,
and containing complete returns of the polls taken at said place of voting for every office to be
filled, and more especially for the office of judge of the fifth judicial circuit; but the said
inspectors, or the supervisor and one of the inspectors, wholly failed and neglected so to do; and,
therefore, I charge there is no legal and proper return of the votes cast for the office of judge at
said voting place in Union township. Wherefore, I shall claim to have the said poll set aside and
excluded from the count of the vote for the office of judge in said county of Wood; which being
done will give me 103 majority in said county of Wood* and a majority in said circuit of 67
votes.

Fourteenth. That the following persons voted for you in said county of Wood; and that the same
Avere received and counted for you at the several voting places set opposite their names; and
that said votes were illegal and ought not to be received and counted for the reasons stated herein
:

At Walkers Station in Walker township' in said county, Joseph Enox, William Cade, Benjamin
Schoolcraft, *656Hunter Riley and J. A. Anderson voted for you forgthe office of judge of said
circuit at said election. I charge that said votes were illegal, and should not be counted and
allowed to you, because the persons casting said votes were non-residents of said township in
said county, and were not therefore entitled to vote therein.

At the court house in Parkersburg township, Austin Gibbs, Citizen Thomas, Richard Dodds or
Dodd, A. Diggs or Austin Diggs and George Washington voted for you for the office of judge of
said circuit at said election. I charge that said votes were illegal, and should not be counted,
because they were all non-residents of the State of West Virginia; and in addition, said Citizen
Thomas and George Washington were minors under the age of twenty-one years, and that
therefore all of said votes were illegal, and said person were not entitled to vote at said election.

At the voting place in Tygart township in said county of Wood, A. McConahay voted' for you for
the office of judge of said circuit at said election. • I charge that said vote was illegal, and should
not be counted and allowed to you, because the said A. McConahay was a non-resident of the
State of West Virginia, and a non-resident of said township and county, and therefore was not
entitled to vote therein at said election.

I shall, therefore, claim to have my majority in said county increased, by the number of illegal
votes received by you, as here set out, in said county of Wood; which being done gives me-
majority in the county of Wood, and-majority in said circuit.

Fifteenth. I charge that at the voting places in the following townships in the county of Pleasants,
to-wit: in Grant township, Lafayette township and Union township, the names entered on the poll
books in said several townships were not counted by the inspectors and clerks in the presence of
the supervisors, and the whole number thereof, at the foot of each of said lists, set down in
words, and signed by the respective persons ■ acting as *657inspectors and clerks, at the said
several voting places in said townships, as required by law, in order to prevent fraudulent
additions to the votes legally cast at said election; as will appear by reference to the poll books
and returns of said elections held in said township as aforesaid, on file in the office of the clerk
of the board of supervisors of Pleasants county aforesaid. And X furthur charge that there are no
legal and proper returns of the number of persons who voted at said election in the said several
townships of Grant, Lafayette and Union in said Pleasants county; and that the said returns,
cannot be counted against me in this your contest for the office of judge of the said circuit; and
the same not being counted, but excluded, that thereby my majority in said county of Pleasants is
increased to 121 votes, and thus increases my majority over you for judge of said circuit to 89
votes.

Sixteenth. I charge that at the voting place in Grant township in the county _ of Pleasants, the
officers who conducted said election for said township, were not legally and properly sworn to
perform their duties, before entering upon the discharge thereof, and before making any return of
said election. And I furthur charge, that if said officers were sworn, that there is no legal and
proper certificate of any such oath being administered to them as required by law. And I further
charge that the contents of the ballots, as they were read, were not entered by the clerks, under
the supervison of the supervisor and inspectors, on tally papers for the purpose, by suitable
marks made opposite|% or under the name of such persons voted for, so as to show the number
of votes received by every person for any office to be filled.
And I further charge that there are no legal and proper returns of the election held at said voting
place in said township or of the number of persons who voted at said election; or of the number
of votes, received by every person for every office to be filled at said election; *658and
especially for the office of judge of said 5th judicial circuit; and that the said returns cannot be
counted against me, in this your contest for the office of judge of said circuit; and the same not
being counted, but excluded, I shall claim that thereby my majority in said county was increased
to 58, and my majority in the circuit to 26 votes.

Seventeenth. I further charge, upon information and belief, that the election held in and for said
Lafayette township in said county of Pleasants, for the office of judge of said circuit, on the 22nd
day of August 1872, was not lawfully held, and properly conducted in this: That said election
was held at a place called Hebron in said township of Lafayette in said county; and being so held
there, I aver it was so held at said place without authority of law, the said Hebron never having
been designated by the supervisors of the county of Pleasants, as a place of voting for said
township of Lafayette,' but on the contrary the school house in said township, known as the
Plebron school house, about one mile from where said election was actually held, and in said
township was the legal and proper place designated by law for holding elections in said
township. Or if it should appear, that said Hebron school house in said township is not the legal
and proper place, designated by law, for holding elections in said township, then I charge that
there is no place designated by law, or by the supervisors of said county of Pleasants, in said
township for holding elections; and that the election so pretended to be held at said Hebron in
said township in said county of Pleasants, for the office of judge as aforesaid, is null and void. I
shall, therefore, claim that the wholes’vote cast at said pretended election held in said township
of Lafayette in said county, be excluded and disregarded in the contest you.have originated
against me, for the office of judge as aforesaid; and that being excluded my majority in said
county of Pleasant will be 80, and in said circuit will be 48 votes.

*659Eighteenth. I charge that at the voting place in Union township in said county of Pleasants,
the officers who. conducted the said election for said township, were not legally and properly
sworn to perform their duties, before entering upon the discharge thereof, and before, making
any return of said election, as required by law; or if the said officers were sworn, that there is no
legal and proper certificate of the same. Wherefore,! shall claim to have said poll set aside and
excluded from the count of the votes for judge of said circuit in said county of Pleas-ants; which
being done, my majority in said county will be 80, and in said circuit will be 48 votes.

Nineteenth. I further charge, upon information and belief, that the election held in and for said
Grant township in said county of Pleasants, for the office of judge of said circuit, on the 22d day
of August 1872, was not, lawfully held and properly conducted, in this : That said election was
held at a place and house called a school house, on Calf creek in said township and county. And
being so held there, I aver that it was so held at said place and school house without authority of
law, the said school house never having been designated by the supervisors of said county .of
Pleasants as a place of voting for said township of Grant, but on the' contrary, the house at the
mouth of Cow creek, formerly known as the Willow Island Post Office in said township and
county, about three miles from said school house on Calf creek, wras the legal and proper place
for holding elections in said township. Or if it should appear that the • house at the mouth of
Cow creek, formerly known as the Willow Island Post Office in said township and county
aforementioned, is not the legal and proper place for holding elections in said township, then I
charge that there is no place designated by law, or by the said supervisors of said county of
Pleasants, for holding elections in said township; and that the election so pretended to be held at
said school house on Calf creek in said township in said county of Pleasants, for the office of
judge as afore*660said, is null and void. I shall therefore claim that the whole vote cast at said
pretended election held in said township of Grant, be excluded and disregarded in the contest you
have originated against me for the office of judge as aforesaid; and that being so excluded, my
majority in said county of Pleasants is 58 votes, and in the circuit 26 votes.

Twentieth. I further charge, on information and belief, that the election held in and for Union
township in said county of Pleasants for the said office of judge^ on the 22nd day of August
1873, was not lawfully held and properly conducted in this: That the said election was held at a
place and house called Berkhimers Store, at the mouth of Sugar creek in said township and
county. And being so held there, I aver that it was so held at said place and store room without
authority of law; the said place and store room not having been designated by the board of
supervisors of said county of Pleasants as a place of voting for said township; but on the
contrary, the place established by law for holding said elections, was a log school house, a mile
up the creek, and a mile from said Berkhimcr’s Store; and was the legal and proper place for
holding elections for said township in said county. Or if it should appear that the said log school
house, a mile up said Sugar creek aforementioned, is not the legal and proper place for holding
elections in said township, then I charge that there is no place designated by law or by the board
of supervisors of said county of Pleasants for holding elections in said township; and that the
election so pretended to be held at said Berkhimer’s store in said township of Union in said
county, for the office of judge aforesaid, is null and void. I shall, therefore, claim that the whole
vote cast at said pretended election held in said township of Union be excluded and disregarded
in the contest yon have originated against me for the office of judge as aforesaid and that being
so excluded, my majority in said county of Pleasants is 80 votes, and in said circuit is 48 votes.

*661Twenty-first. I further charge that the following named persons voted for you in
Washington township in said county of Pleasants; and that the same were counted for you; and
that said votes were illegal, and ought not to be received and counted' for you, for the reasons
stated herein:

Daniel Summers voted for you in said Washington township for the office of judge as aforesaid.
I charge that said vote was illegal, in this: That said Daniel Summers was not a resident of said
Washington township, but was a resident of McKim township in said county, and therefore said
Summers had no legal right to vote in said Washington township aforesaid.

P. A. Shepardson also voted for you for judge as aforesaid, in Washington township aforesaid, at
said election. I charge that said vote was illegal, in this: That said Shepardson was at the time a
non-resident of the State of West Virginia, and was a non-resident of said county and township,
and therefore, not entitled to vote at said election in said township. I shall, therefore, claim that
your vote at that voting place in Washington township be diminished by two votes; and thereby
increase my majority in said circuit to 22 votes.
Twenty-second. I charge, that at the voting place in McElroy township in the county of Tyler, the
officers who conducted said election for said township, were not legally and properly sworn to
perform their duties as such officers, in this: That they were administered an oath by a person
claiming to be, and to act, as clerk of the said township, he not being then and there authorized to
administer oaths.

That the names entered on the poll books in said Mc-Elroy township aforesaid, were not counted
by the inspectors and clerks in the presence of the supervisor, and the whole number thereof set
down in words at the foot of the lists, and signed by the persons who acted as inspectors and
clerks at said election in the manner prescribed *662by law, in order to prevent fraudulent
additions to votes legally cast. -Wherefore, I shall claim to have your majority in said county
diminished by one hundred and one votes; which being done will give you a majority of three
hundred and twenty-six votes over me, instead of four hundred and twenty-seven as returned;
and thereby increasing my majority in said circuit to one hundred and twenty-one votes.

Twenty-third. I charge that, in the following townships in said county of Tyler, also at the several
places of yoting therein, to-wit: in Meade township, Centre-ville township, Union township and
Ellsworth township, the names entered on the poll books in said several townships, were not
counted by the inspectors and. clerks, in the presence of the supervisors thereof, and the whole
number thereof, at the foot of each of said lists, set down in word,s and signed by the respective
persons acting as inspectors and clerks at the said several voting places in said townships, as
required by law, in order to prevent fraudulent additions to the votes legally cast at said election;
as will appear by reference to the poll books and returns of said elections held in said townships
as aforesaid, on file in the office of the clerk of the board of supervisors of Tyler county
aforesaid. And I further charge that there are no legal and proper returns of the number of
persons who voted at said election in the said several townships of McEIroy, Meade, Centreville,
Union and Ellsworth in said Tyler county; and that the said returns cannot be counted against me
in this, your, contest for the office of judge of the said circuit. And the same not being counted,
but excluded^ I shall claim that thereby the majority which is alleged to be yours, over me in said
county of Tyler, for the office of j udge as aforesaid, must bo diminished 353 votes; and thus
increase my majority over you for the said office of judge in said circuit to 373 votes.

Twenty-fourth. I further charge, upon my information and belief, that, at the voting place in the
said township of *663Ellsworth in said county of Tyler, at the election held there as aforesaid,
the inspectors and clerks of said election thereat, did not in the presence of the supervisor, as
soon as possible after the said poll was closed, proceed to count the names entered on the said
poll books, and the number thereof set down in ' words at length at the foot of the lists, and sign
the same as required by law. On the contrary I allege, as I am informed and believe, that the said
supervisor, inspectors and clerks at the said voting place in Ellsworth township, did not on the
evening of said election, as soon as possible, proceed to ascertain the result of said election at
that place; but they, the said officers, without carefully locking and sealing up the ballot box used
at said election at said voting place, without warrant of law, with-Avithout any necessity
whatever, but with negligence and misconduct amounting to fraud, did place the said ballot box,
containing the ballots uncounted by said officers, and sealed only by a flimsy bit of paper, and
Avithout other protection to the ballots aforesaid, in the office of the clerk of the supervisors of
said county of Tyler; he not being one of the officers conducting said election, but oñe of the
candidates Aroted for thereat; whose name was on the ticket Avith you, the said George Loomis,
to-Avit: the Republican ticket. And I further aver, therefore, upon my information and belief, that
until the said votes at said voting place in said toAvnship Avere counted, and the certificates of
the result Avere signed, that the said ballot box containing said ballots did not remain in the
immediate custody of the supervisor and inspectors, or one of them, as is imperatively required
by the 19th section of chapter (3) three of the Code of West Virginia.

And I further aver, upon my information and belief, that said ballot box Avas alloAved, thus
insecurely sealed and protected, to remain in the office of said clerk of said supervisors of Tyler
county from the evening at the *664close of said election, until the next morning after breakfast;
the long period of about twelve hours.

1 I shall claim, therefore, that the return of the election forjudge of said circuit at said Ellsworth
township shall not be counted, but shall be set aside and excluded; and being so excluded, that
your majority over me in said county of Tyler for said office of judge, of said circuit, as certified
by the supervisors of said county, must be reduced by one hundred and twenty-five votes;
thereby adding to my majority in said circuit said votes, and making said majority to be one
hundred and forty-five votes.

Twenty-fifth. I further charge, upon information and belief, that the election held in and for
Lincoln township in said county of Tyler, for the office of judge of the fifth judicial circuit
aforesaid, on the 22nd day of August 1872, -was not lawfully held and properly conducted in
this: That William Russell’s school house in said Lincoln township in said county of Tyler, a
place well known and still existing, was by law duly established as the place of voting in said
township; nevertheless, it appears that a pretended election was, on the same day and in the year
aforesaid, held at the town of Sistersville in said township of Lincoln, at another and a different
house than the school house of William Russell, or the house well known by the people of said
township to be William Russell’s school house, to-wit: at a place and house called the council
room in Sistersville aforesaid. And I further aver that the place of voting so fixed at William
Russell’s school house aforesaid, in said Lincoln township aforesaid, has never from thence
hitherto been changed by any proper and competent authority, in • the manner provided by law. I
shall rely upon the records of the board of supervisors of said Tyler county as evidence of the
facts herein averred.

I shall, therefore, claim that the whole vote at said pretended election in said township of
Lincoln, be excluded and disregarded in this contest you have origi*665nated against me for the
office of judge as aforesaid; and tat the same being so excluded, your majority, as certified as
aforesaid in said county of Tyler, must be diminished seventy-one votes, and mine in the said
circuit for ' the said office to the like number increased; thereby-making my majority in the said
circuit for said office ninety-one votes.

Twenty-sixth. I further charge, upon information and belief, that the election hold in and for
Lincoln township in said county of Tyler, for the said office of judge on the 22nd day of August
1872, was not lawfully held and properly conducted in this: That the said election was held at a
place and house called the council room in Sistersville in said township of Lincoln in said
county; and being so held there, I aver it was so held at said place and room without authority of
law;, the said council room never having been designated by the supervisors of said county of
Tyler, as a place of voting for said township of Lincoln; but on the contrary, the school house in
said township known as the William Russell school house, was the legal and proper place
designated by lavr for holding elections in said township. Or if it should appear that the said
school house of William Russell in said township aforementioned, is not the legal and proper
place, and the place designated by law for holding elections in said township, then I charge that
there is no place designated by law, or by the said supervisors of said county of Tyler, in said
township for holding-elections; and that the election so pretended to be held at said council room
in Sistersville in said township in said county of Tyler, for the office of judge as aforesaid, is null
and void.

I shall, therefore, claim that the whole vote at said pretended election, held in said township of
Lincoln, be excluded and disregarded in the contest you have originated against me for the office
of judge as aforesaid; and that being so excluded, your majority, as certified as aforesaid in said
county of Tyler, must be diminished *666seventy-one votes, and my majority in said circuit for
the said office must bo increased a like number; making my majority in the said circuit, for said
office, ninety-one votes.

' Twenty-seventh. I further charge, upon my information and belief, that at the voting places in
the townships ■of Lincoln, McElroy, Meade, Centreville and Union in said county of Tyler, at
the election held at the respective voting places in said townships, the inspectors and clerks of
said election thereat, did not in the presence of the supervisor, at said several voting places, as
soon as possible after said poll was closed, proceed to count the names entered on the poll books,
at said several places of voting in said townships, and the number thereof set down in words at
length at the foot of the lists, and the said inspectors and clerks sign the same, as they were
required by law so to do. On the contrary, I allege, as I am informed and believe, that the said
supervisor, inspectors and clerks at each of the voting places in said townships last mentioned,
did noton the evening of said election, as soon as possible, proceed to ascertain the result of the
elections at the said several voting places in said townships; but the said officers at said voting
places, did put and place the ballot boxes of the said several voting places in said townships, and
having’the ballots of said voting places, cast at said election, contained therein, in some place or
places to me unknown, for a long space of time, to-wit: about twelve hours, without warrant of
law, without any necessity whatever, but with negligence and- misconduct amounting to fraud.
And I charge, upon my information and belief, that the said several ballot boxes of said several
townships, so containing the ballots casi thereat as aforesaid, during said space of time, to-wit:
twelve hours, did not remain in the immediate custody of the supervisors and inspectors of the
elections so held in said townships, or in the immediate custody of any one of them with the
consent of the others. And I further charge that said ballot boxes *667of said several townships,
being so left as aforesaid during the time aforesaid, were not carefully sealed; so that they and
each of them could not be .opened, or any ballot taken therefrom or entered therein without
breaking the seal; and that said supervisors and inspectors did not, nor did any or either of them,
write their names across the place or places where said boxes and each of them should be sealed,
when they were so placed as aforesaid, as they were required by law so to do.

I shall claim, therefore, that the return of the election for judge of said circuit, at the said several
townships, shall not be counted, but shall be set aside and excluded; and being so excluded,
that .your majority over me in said county of Tyler for said office of judge of said circuit, as
certified by the supervisors of said county, must be reduced three hundred and three votes,
thereby adding a like number to my majority in said circuit, and making the same three hundred
and twenty-three votes..

Twenty-eighth. I further charge that should the poll of Lincoln township in said county of Tyler,
be not set aside, for the causes hereinbefore set forth, then that the following named persons,
minors and non-residents of this State, and not entitled to vote at the said election, at the voting
place in said Lincoln township aforesaid, to-wit; Charles Watkins a minor, and Charles Watson a
non-resident of this State, did contrary to, and in violation of law, at the voting place in said
Lincoln township in said county of Tyler, cast their ballots for you, the said George Loomis, for
said office of judge, and that the same were received and counted for you. I shall, therefore,
claim that your poll at that place be diminished by said two votes; and thereby increase my
majority in said circuit to twenty-two votes.

Twenty-ninth. I charge, upon information and belief, that after the election officers at the several
voting places, in the several townships in the county of Calhoun, had enclosed the ballots voted
at the said several voting places in said several townships in the county of Calhoun, *668by the
voters thereof, in envelopes, and sealed up the same, and endorsed the same as required
bylaw;andhad caused the same to be delivered, so sealed up as aforesaid, to the clerk of the
board of supervisors of said county of Calhoun; and after the said board of supervisors for said
county of Calhoun, had convened as required by the 62nd section of chapter 3 of the Code of
West Virginia, to-wit: on the 28th day of August 1872; and had ascertained the trtie result of the
elections held in said county, on the 22nd day of August 1872; and had made the proper
certificates as required by law, they caused the scaled packages of envelopes to be deposited in
the office of the recorder of Calhoun county as required by law,, sealed up and endorsed as
required by law; that the said several packages of ballots, so sealed up as aforesaid, were broken
open and examined, and the ballots therein contained, handled and misplaced. And I charge,
upon information and belief, that you, the said George Loomis, did cause said sealed packages of
ballots, containing the ballots cast at the several voting places in Calhoun, to be so broken open
and examined, and the ballots therein to be handled and misplaced; and if it was not done by
your express directions, it was so done by your advice, procurement, approbation, assent and
connivance.

I shall, therefore, claim that the breaking of the said several packages of sealed ballots as
aforesaid, contained in the envelopes aforesaid, at your instance, amounted to or resulted in a
tampering with said ballots to my prejudice.

And I further charge, upon information and belief, that if said ballots, so voted at the said several
voting-places in said several townships in the county of Calhoun, vary in regard to the office of
judge as aforesaid, and do not correspond with the certificates of the several officers holding the
elections at said several voting places, and with the returns made by them of the result of the
election of judge as aforesaid, at the said several voting places, and especially at the voting place
in the *669township of 'Washington in said county of Calhoun, then that said ballots have heen
tampered with, altered and charged; and that said ballots are false and fraudulent, and do not
show how the voters, who cast the same, voted for said office of judge as aforesaid; and
therefore that they cannot be received as evidence for any purpose whatever, and especially f or
the purpose of contradicting the returns of said elections, so made as aforesaid, by the officers
conducting said elections at said several voting places. I shall, therefore, claim that the breaking
of the said several packages of ballots as aforesaid, either by your procurement and direction, or
at your instance, or by persons acting in your interests, amounted to, and resulted in a tampering
and altering said ballots to my prejudice.

Thirtieth. And I furthermore charge, upon information and belief, that said ballots so cast at the
several voting places in the several townships in said county of Calhoun, were duly and properly
enclosed in envelopes, and sealed and properly endorsed by the several officers of election at
said several voting places in said county, as required by law, when they were delivered to, and
deposited in the office of, the recorder of Calhoun county. And I charge that in a petition filed by
you before his Excellency, the Governor of the State of West Virginia, which petition was sworn
to by you, and in which you prayed for a recount of the votes of the township of Washington in
said county of Calhoun, among other things, it is alleged by you, that the poll books of said
Washington township show that I, the said James M. Jackson, received 112 votes; whereas my
said vote as shown by the tally and ballots was 111; and that the vote received by you, the said
George Loomis, as shown by said poll books was nine; whereas the tally shows that you received
thirteen. I shall claim to use said petition so filed before the governor as evidence that you either
personally, or by your agents, had access to said ballots, *670and have handled and examined
and counted the same contrary to law; and that the contents of said ballots, could not legally and
properly be known, by yon; and that such interferences upon your part, either personally or
through others, with said ballots were improper, unwarranted and illegal, and amount to a fraud
upon my rights in the premises, as leading to well grounded sus-pecious of unfairness and fraud.

And I furthermore charge, on information and belief, that said ballots so cast as aforesaid at the
several voting places, in the several townships in the said county of Calhoun, were duly and
properly enclosed in envelopes, and sealed and properly endorsed by the several officers of
election at said several voting places in said county, as required bylaw, when they were delivered
to, and deposited in the office of, the recorder of said Calhoun county. And I charge that if what
is alleged in specification 3 of your petition, in regard to Washington township, be true, that is, “I
received but one hundred and ten votes, and yet I am' erroneously allowed and certified by the
inspectors of said township to have received one hundred and twelve votes, or two more votes
than what I in fact received; and that in said township you received thirteen votes, and yet the
inspectors of said township allow and certify that you only received, in said township, nine votes,
or four votes less than you did receive,” then that such information in regard to said errors so
alleged by you, could not be known to you except the said ballots had been examined by you
personally, or by some one for you contrary to law. I shall, therefore, claim that said ballots, if
they upon their face show a different result than that contained in the certificates of the officers
conducting the said election, and of the returns made by them, have been tampered with; and that
they do not constitute evidence more reliable than the inspectors certificates, which were
prepared immediately on the close of the election, and upon actual count of the ballots, then
made by the officers whose *671duty it was to count the same. And I shall, further, claim that I
received in said county of Calhoun at said election 469 votes for the office of judge aforesaid,
and you received 186 votes at said time for the office of judge aforesaid; and that the said votes
were rightfully and legally certified to, by the board of supervisors of said Calhoun county, and
that certificate cannot be impeached by said ballots.

Thirty-first. Finally, I charge that such irregularities exist in the conducting of the election in said
county of Tyler, and counting the vote thereat by the officers thereof, that a recount of the ballots
cast at said election in said county is required to ascertain what the true vote is. I shall, therefore,
ask to have said ballots recounted, and the mistakes of the officers conducting said election
corrected.

In conclusion, I, the said James M. Jackson, claim that I was duly elected to the office of judge
of the 5th judicial circuit of the State of West Virginia by the qualified voters of said circuit, on
the 22nd day of August 1872, and am entitled to be commissioned as such judge according to
law.

Respectfully, Ac.,

James M. Jackson.

State op West Virginia,

County op Wood, to-wit

Personally appeared before me, John M. Mitchell, a justice of Parkersburg township in said
county of Wood, James M. Jackson, whose name is signed to the foregoing notice, and made
oath that the matters therein set forth, so far as they are stated of his own knowledge are true, and
so far as they are stated on the , information of others he believes them to be true.

James M. Jackson.

Taken, sworn to and subscribed before me this 31st day of October 1872.

J. W. Mitchell,

Justice of Parkersburg Township.

*672I Served the within notice on George Loomis by delivering a true copy to him on the 1st day
of November 1872.

W. J. Hill, s. w. c.

On tile 9th day of November 1872, the Contestant served his replication to Respondent’s return
notice, and an additional notice with four new specifications in the. words and figures following:

To James M. Jacjkson, Esq.

Having been served with a “return notice” with specifications numbered from 1 to 31 inclusive,
except there is none numbered the twelfth — 1 hereby notify you, in addition to my former
notice, that after the latter was served upon you, I have discovered new facts which I shall rely
upon in the trial of said contest; that said facts are more specifically set forth in the specifications
hereinafter contained.

You are further notified, that at a general election of state and county officers held on the fourth
Thursday in October 1868, I was duly elected judge of the 9th judicial circuit of this state; and
afterwards, in pursuance thereof, ivas duly commissioned by the Governor of West Virginia to
hold my office for the term of sixyears from the 1st day of January thence next ensuing; that I
qualified as such judge according to law; and that my term of office will not expire until the 31st
of December 1874; that said circuit comprises the aforesaid counties of Wirt, Wood and
Pleasants; that the election, by virtue whereof you claim the right to be commissioned as judge,
was in all respects unauthorized by law; and that the same was null and void so far as the
election of judge was concerned; that the constitutional convention fixing the fourth Thursday of
August 1872, for the election of judges (among other officers) did transcend and exceed the
powers delegated to it by the legislature and the people of this state; and the officers who held
and ^carried on said election on the 22nd day of Au*673gust 1872, so far as the same was for
judge as aforesaid, and made returns thereof, acted illegally and without authority of law. I
therefore protest against the same, and shall claim my right to the office of judge under the
election aforesaid of 1868, and to hold said office for the aforesaid full term of six years.

If however, the law of the case is not with me in these particulars, I am not be understood as
waiving any of my rights arising in the premises by virtue of the aforesaid election held on the
22nd day of August 1872; but shall insist upon all and every of them.

I hereby reply generally to.the matters set up in your, notice and specifications; and for more
specific and special replication thereto say : That as to the matters charged in your specifications
from 1 to 6 inclusive, I have no knowledge as to their truth or falsity, but even if they are true, I
shall claim that they do not affect the validity of the elections therein respectively mentioned,
and I shall object to all and any evidence taken to sustain them as being improper, irrelevant and
immaterial to the issues raised in this contest.

As to your 7th, 8th,'14th and 28th specifications, I know nothing of the matters therein charged,
and do not admit them to be true. -

'As to your 9th, 16th, 17th, 18th ,19th, 20th, 21st, 22nd, 23rd, 25th, 26th and 27th specifications,
I know nothing of the matters therein charged, and do not admit them to be true.

As to your 10th, 11th, 13th, 15th, 22nd, 23rd, 21th, 25th, 26th and 27th specifications, I do not
admit them to be true, and I shall object to them by reason of their vagueness and insufficiency,
and shall also object to proof thereof, because they are irrelevant and immaterial, in my opinion,
to the issues raised in this contest.

As to your 29th specification, the . matters as therein stated are untrue.

As to your 30th specification, I demur to the same for vagueness, and deny all and every
imputation against *674me therein made, either directly Or by innuendo. I know nothing of any
improper action of any person as therein stated, and if any was had it was without my knowledge
or consent.

As to your 31st specification I reply generally thereto.

You are hereby further notified, that while I do not admit that the informalities charged by you in
your 10th, 15th, 22nd, 23rd, 24th and 27th specifications (and where-ever else charged) touching
the alleged failure of the officers of election at the respective voting places therein mentioned,
“To have the names entered on the respective poll books, counted, and the numbers thereof set
down in words at length at the foot’of the lists, and then signed by the inspectors and clerks
respectively, &c;” and further, while I do not admit that the informalities charged in your 23rd
specification, as to the officers of the election not being legally sworn as therein stated; and in
your 13th specification as to the alleged failure of the officers to sign a proper certificate as
therein charged; and while I do not admit that these or any other infor-malities or omissions or
non-compliances with the sections of law, by you referred to, on the part of said election officers,
either in said specifications or others in your return notice charged, invalidate the election at the
voting places named, even if said charges are true,' nor do I admit the legal effect of .them to be
as you claim, even if they are true; yet if it shall be held to be otherwise, that is to say, if the
effect of these alleged informalities (provided they are true) be as you claim, to-wit; to exclude
the vote cast at said voting places respectively ; then I shall claim that the entire election for
judge of the 5th circuit aforesaid is a nullity, by reason of so lai’ge a number of legal voters
being practically disfranchised in consequence thereof, and without fault of the voters, and
without remedy to them.

- You are further notified that, if the aforesaid non-compliances of 'the officers of the said
election with the sections of law referred to, and the alleged informalities *675and omissions are
true, and are insisted upon, and are allowed to have the legal effect and operation that you claim
for them, then I shall insist upon, and claim to have the same legal effect and operation gi\Ten to
each and every irregularity, omission and non-compliance, Avith said sections of laAV of the
same, or similar nature, wherever they have occurred within the said circuit. And I charge, upon
information and belief, that they do exist, and did occur at a very large majority of the voting
places throughout said circuit — the evidence of which I shall procure as I have opportunity, to
be used on the trial of this contest; and especially is it true, as I am informed and belie\’e, that in
no instance have the inspectors, or the supervisors and one of the inspectors, at any of the voting
places throughout said circuit certified “the full name of any person, except my own, voted for
for judge at said election as required by the 6th section of chapter 3rd of the Code of "West
Virginia.

I am informed, believe and charge that your “full name’, is James Monroe Jackson, and that said
“full name” nowhere appears upon any of said poll books, and that you cannot have allowed to
you votes given for J, M. Jackson, or for James M. Jackson, if the non-com-pliances Avith said
sections of laAV do exist, as you have charged, and if they are to have the legal effect that you
claim for them.
In candor, I state that I do not deem them material; but if they are to operate in your favor where
they exist to my prejudice, I claim to have them operate in my favor where they exist to your
prejudice.

The folio Aving additional specifications I shall rely upon.

1st. That at Freeport, a voting place in Clay toAvnship in "Wirt county, I am informed and
believe, the officers then and there conducting said election did, about 1 o’clock p. m. on the day
of the election, announce that the voting would be suspended, and it was suspended accordingly;
and the ballot box *676opened/ and the counting of the ballots was then commenced, and when
finished, the box was again closed and additional votes received; and in this manner the ballots
were counted, the voting suspended and resumed from time to time frequently; and the polls
were finally closed before sundown; and that these and other illegalities and irregularities then
and there occurred to my prejudice. I shall, therefore, claim to have said poll set aside.

2nd. I charge, upon information and belief, that the officers conducting the election at Newark, a
voting place in Newark township in Wirt county, were not sworn according'to law before
entering upon their duties as such officers; and were not sworn, if at all, until after the polls were
closed and the books returned to the clerks of the board of supervisors. I further charge, upon
information and belief, that the polls at Newark aforesaid were closed before sundown, and the
ballot box opened and its contents examined before the voting had ceased; and that these and
other irregularities and illegalities then and there occurred to my prejudice. I shall, therefore,
claim to have said poll set aside.

3. I charge, upon information and belief, that at several of the voting places in Calhoun county,
especially at Ricliardsonville, some of the officers then and there conducting the election, did not
act fairly and impartially, as by law they were required to do; but on the contrary thereof,
suppressed, concealed and destroyed ballots that had mv name upon them as a candidate for
judge, so that the same could not be furnished to voters who desired to vote the same; and that
other improper influences were by them, or some of them, exerted to wrongfully increase your
poll, and to diminish mine; and that the same was done by previous arrangement with yourself,
with your assent and connivance, and to my injury and prejudice.

I shall, therefore, claim to have your poll at Richard-*677sonville aforesaid, set aside; and also at
such other voting places in said county where like misconduct occurred.

Respectfully, &c.,

George Loomis

State op West Virginia,

Wood County, to wit:

Pesonally appeared before me, a notary pubfic duly «commissioned and qualified, in and for the
county aforesaid, George Loomis, whose name is signed to the foregoing notice, and made oath
that the matters therein set forth so far as they are stated on his own knowledge are true, and so
far as stated on information of others he believes them to be true. Given under my hand this Sth
day of November, A. D., 1872.

W. W. Van Winkle,

. Notary Public.

Executed November -9th, 1872, at 8 o’clock p. m., by delivering to James M. Jackson,

Contestee, a true copy of the within.

W. J. Hill, S. W. C.

On the 26th of November, the Contestant served a supplemental notice and specifications on
Respondant in the words and figures following :

James M. Jackson, Esq.

Sir : You will take notice that on the hearing of the said contest, I shall rely upon proof of the
following facts which I hereby append to my former specifications, as a

SUPPLEMENTAL SPECIFICATION NO. IV.

I charge, upon information (first coming to my knowledge on the 23rd day of November 1872,)
that at the election held on the 22nd day of August 1872, in Washington township in the county
of Pleasants, the poll books for said township do not show that any person whomsoever was
voted for for judge at said election, at the voting place for said township; nor is there any
cer*678tificate as required by law, on said poll books, made by tbe proper officers, nor by any of
tbe oificers conducting, said election, that any person whomsoever received any votes for said
office of judge of tbe 5th circuit of West Virginia. Yet you are certified by tbe board of
supervisors of Pleasants county, to have received eighty-seven votes for said office of judge, in
said township, and I am certified by the same board to have received sixty-five votes for said
office. I shall, therefore, claim to have the said 87 votes, and the said 65 votes deducted from our
respective polls in Pleasant county.

Yours &c.,

George Loomis.

Wirt County, State op West Virginia.

I, George Loomis, on oath do say that the matters in the foregoing writing, so far as stated on my
own knowledge, are true, and so far as stated on information I believe to be true.

George Loomis.
State op West Virginia,

Wirt County, Becorder’s Oppioe, to-wit:

Taken, sworn to and subscribed before me, recorder in and for the county of Wirt this 26th day
of November 1872.

O. L. WILLIAMS.

Beeorder of Wirt Co., W. Va.

Executed the within notice and specification, on the the 26th day of November 1872, upon Jas.
M. Jackson, by delivering to him in person, in Wirt county West Virginia, a true copy of the said
notice and specifications, this 26th dav of November 1872.

J. H. Wilson,

Dep. for Thos. Foster, Sheriff of Wirt Co. W. Va.

Various other papers were filed in the contest in the office of the Governor, and which are
referred to in the opinion of the Court, but it will not be necessary to set them forth.

*679Both parties took a great amount of testimony to establish their different charges and
specifications; but, according to the view which the Court took of the case, it will be needless to
state the substance of the proof.

Pursuant to section 13 of chapter 6 of the Code, the governor appointed the Hon. Benjamin H.
Smith to act as President of the Court; the Contestant selected Hon. R. S. Brown, and the
Respondent selected the Hon. Samuel Woods, as associate judges. The 28th of December 1872,
was appointed by the governor as the time, and Charleston the place, for the hearing of the
contest.

The Court met at the Capitol and held its sessions in the senate chamber.

The contest was determined upon a motion to quash the petition, notices and specifications of
Contestant.

Judge James H. Brown and W. 3. Sands, Esq., for Contestant.

Hon.N. Fitzhugh, Col. Wm. U. Uogeman and John A. Hutchinson for Respondent.

HUTCHINSON POR RESPONDENT.

Requisites of Notice and Specifications.

As the special tribunal, by whom this case must be tried, has jurisdiction only by force of the
statute, and has no common law power, it must appear from the notice and specifications of
Contestant, properly filed, that he has a case of which it has jurisdiction; therefore, the notice and
specifications must clearly set forth the facts upon which the objections to the election of the
Respondent are founded. Code, Chap. 6, sec. 2. The law requires “ each party ” to append to his
notice his affidavit that the matters therein set forth, “so far as they are stated of his own
knowledge, are true, and so far as they are • stated on the information of others, he believes them
to be true.”.

Each objection mentioned in the notice must be followed by a specification of matters upon
which it is. based, '

*680Mere general allegations afford no basis for th^ examination of this special court; nor, in
ordinary cases, would they be sufficient to put the respondent to defence upon the merits.

Thus in Skerrett’s case, Brightly’s Leading Cas. on Elec., 320, it was held that a petition
complaining of an undue election return, must set forth the facts with precision ; and they must
be sufficient, if sustained by proof, to render it the duty of the court, either to vacate the election,
or to declare that another person than the one returned, was duly elected; and that unless it be
thus specific, and set forth facts that, if true, would have changed the result, it will be quashed on
motion. This was so ruled in Carpenter’s case, 2 Parsons, 537. Kneass’ Case, Ibid 533.
Thompson vs. Ewing, Ibid 68. Mann vs. Cassidy, Brightly, L. C. E., 351. Taylor vs. Taylor, 10
Minn., 107, and Augustin vs. Eggleston, 12 La. An., 366, cited in note to Sherrett’s case. The
case of Gibbons vs. Sheppard, Brightly L. C. E., 588, can not be regarded as' contravening this
principle, for the reasons stated at large in note to that case by Mr. Brightly. “ Its authority,” he
says, “ except upon the jurisdiction of the Supreme Court, is much weakened by the able
dissenting opinion of the Chief Justice, and the acknowledged great ability of the dissenting
judges.” The dissenting opinion will be found in 65 Penna. State Hep., 20.

Let us examine the Contestant’s notice and specifications in the light of this rule.

. The first ground of contest is, that the Contestant was a candidate for §aid office of judge; was
voted for at said election; received a higher number of votes than the Respondent; and is entitled
to be commissioned as such.

The second ground is, that in divers precincts in the counties composing the circuit, there was
such malcon-duct at the several voting places by the election officers, and such interference by
others suffered at the polls, as to preclude a fair expression of the will of the legal voters;
*681and to render it impossible to determine .the choice, at such voting places, of the voters for
said office; and therefore said officers wrongfully and'to his injury and prejudice declared the
Respondent elected.

The third ground is, that in Parkersburg township'; the Respondent expressly directed certain
ballots, found folded or rolled together by the officers in the ballot box, to be destroyed; and
therefore he claims, that if the result of the election was in accordance with the certificates of the
several boards of supervisors (after being corrected as specified in the specifications) the
destruction of said folded ballots would of itself change the result of the election for the said
office of judge.

Now these are the several objections to the legality of the election, and the specifications are
doubtless intended “to set forth the facts on which such objections are founded,” as the Code
requires.

Unless the facts “set forth” in the specifications, support the several grounds or objections
alleged, this Court cannot consider them ; for it is essential, to constitute a proper notice, that the
“objections” should be based oíi particular facts; and that the “facts set forth” should relate to
and uphold the “objections” stated.

In what then, are the specifications defective ?

Specification 1. In this: it is not embraced in the terms of either of the alleged grounds or
objections. If it is, the first clause is imperfect in not showing that the result would be changed by
allowing Contestant the alleged five votes. The second clause is vague and indefinite.

Specification 2. In this : . it is vague and uncertain in not indicating how Contestant is affected
by the acts charged therein; in alleging “that the said election at that place was conducted
generally in such manner as to repel the presumption that the ballots were not tampered with;”
and if true as charged, the matters are not sufficient to annul the election there.

*682Specifications 3 and 4. In this : that as to- the result .of said election in Calhoun county, in
the townships named, the allegations are not of facts, but “of conclusions drawn from facts” not
stated. The attempt is to aver fraud; but only insinuates it, without giving the Respondent that
precision and fullness of statement, upon which he could be reasonably required to prepare to
meet it in proof.

. The attention of the Respondent is not directed to any specified illegal votes, or any particular
illegal acts of the election officers; but the effort of the Contestant here, is to invalidate the
certificates and returns of sworn officers, (presumed to be true and correct) by means, and for
reasons, neither averred nor suggested. • Of what, in legal sense, is the Respondent practically
informed by this specification? What is the character of proof to be furnished upon this count? It
is not here charged that the poll books or tally lists expose the wrongs asserted; they are to be
impeached — but by whom? with Avhat? What peculiar source or means of knowledge does the
Contestant rest on ? The ballots ? He does not mention the ballots, and, not referring to them, or
asking for their examination, he places the Respondent in uncertainty upon this vague and
general specification. It is not “certainty to a common intent?” Well say the court in Gibbons vs.
Sheppard (65 Penn. St. Rep. 36) “The rule must not be held so loosely as to permit the acts of
sworn officers chosen by the people, to be inquired into without adequate and well defined
cause,” “nor is it sufficient” say the court in Carpenter’s case cited supra, “To state that Arecived
a majority of the votes, while the return was given to B, and, therefore, the complainant alleges
that there was an undue election.”
hBj'- an ingenious generalization, therefore,” says King J., “such an allegation would open the
whole election; permit every kind of objection, to be started against the votes given and received;
and this without *683any precise or specific averment being previously made against tbe
propriety of their reception.”

Specification 5. Is-not comprehended in either of the “objections” in the notice of Contestant, or

grounds, as he terms them; is vague and uncertain, and if the facts were as charged, they are not
sufficient to render the election void, nor would the result be changed.

Specification 6. If true, does not show what the result of the election for judge of the 5th circuit,
in that event, would be. It is therefore immaterial.

Specification 7. Is like the preceding.

Specification 8. Is too general. The charge, if true, ‘does not aver how the Contestant was
affected. “Well-grounded suspicions of unfairness,” are not facts, . but conclusions; and to aver
that an act is one, “leading to well-grounded suspicions,” is not stating the basis of the
“suspicions,” but an inference from facts not alleged; nor is the averment, that the Contestant
claims “that such acts are improper etc.” a statement of fact, but a mere opinion. To take hold of,
handle, displace and 'examine ballots, many or few, by a candidate at an election, in the presence
of officers, may be perfectly innocent. If it may be so presumed (and is in law so presumed) it is
both illogical as well as unjust to say-that “suspicions of unfairness” are “well-grounded” on
such an act. Is not this specification characterized by the well-grounded unfai rne ss of its
suspicions ? But suppose, for the argument, that it was true as averred here by Contestant; the
consequences claimed by him are not legitimate. It would not effect the certified result, because
it is not reasonably shown that any thing wrong was done. “A specification,” says King, J.,
“which is nothing more than a hypothesis; a specification as to. what would, in the opinion of
complainant, follow an investigation; is not the plain and clear statement of facts,” on which an
election can be contested.

See numerous cases, in support of this proposition, cited in People vs. Cicott 16 Mich. 328, 324.
In Lanier *684vs. Gallatas 13 La. An. 176, it was said that “It was net enough to charge that if
certain illegal votes had been rejected, it would in all probability have changed the result in favor
of the petitioner; but that the averment must be direct and positive.

Specification 9. This does not specify any fact which; the Respondent could fairly be called on to
answer. It is general and not sufficient in law. NR such consequence would result, as charged, if
it were all true.

Specification 10. This is liable to the exceptions taken to the preceding. Besides, it is
argumentative, and not a statement of facts with precision.

Specification 11. Is objected to for reasons already assigned.

Specification 12. Is uncertain and insufficient.

Specification 13. Contains no matter that1 would justify the exclusion of the votes cast as therein
alleged..

The Respondent, therefore, moves to quash the notice' and specifications, and to strike out the
matter referred to.. The grounds assigned for this motion are apparent from an examination of the
specifications mentioned. They are not technical or formal. They look to the substance of the
charges; and are based on well settled rules of' pleading.

The learned and lamented Judge King in deciding' upon the very questions here raised — in
Skerret’s case— (2 Parsons 509 — Brightly L. C. Elec. 320) made this general observation : “He
has been but a casual observer of the disturbing influences of human passions, who’ will not
admit that if one thing is more required than another to rest on solid, tangible and practical
principles, it is the class of inquiries like the present, that spring up amidst the fiercest
excitements and most vehement feelings, which men, living under such a government as ours are
subjects of. Should too ready an ear be lent to such complaints, it does not require the spirit of
prophecy to divine, that elections will rarely term*685inate with the ordinary functionaries under
whose super-intendance they are placed ; but that courts of justice will be perpetually invoked to
assume the office most foreign to their organization — that of umpires between the contestants
for public favor at the ballot box.

“Where everything is to be gained and nothing to be lost, it will require more philosophy than
ordinarily belongs to a discomfited party, to resist the temptation of an appeal from a decision
against them at the polls, if such an appeal be aftorded, on a complaint so vague and indefinite as
to offer no shock to the most tender conscience.”

In Kneass’ case (2 Parsons 555) it was decided, that every petition alleging an undue election
and false return, must be complete in itself, and state such ground as would, if sustained by
proof, be cause for rendering it void, or declaring another elected; and when some of the grounds
alleged are even irregularities, which, if sustained by proof, would not be sufficient cause for
setting aside the election, such specifications will be stricken out, on motion, and the respondent
will not be put to the trouble of taking proof.

As has been already urged, the jurisdiction of this Court is derived wholly from the statute
creating it; “it possesses no inherent powerand therefore unless the Contestant brings himself
clearly within its terms and meaning, this Court cannot proceed. Precedents of contested election
cases of congress or state legislatures are inapplicable, because such bodies, “Have an inherent
and fundamental right to judge of the qualification of ther respective members ; a right not given
by law, but a part and parcel of the very organization of government, and in investigating such
cases, they may conduct it pro re nata.” Judge King — supra. The first principle in the
administration of human justice, says the same authority, is the right to notice of the charge or
demand, and it is as unquestioned, as unquestionable. To allow the con • *686testant to state
mere “conclusions” and not facts is to permit him to usurp the functions of the court; and thus
deprive it of its right to inquire into the fact, which ought to be alleged.
The notices and specifications are also insufficient, because they do not contain such allegation
of fact as, if true, would justify any inquiry into the proceedings of the election anterior to the
certificates of the boards of supervisors.

The results certified by the boards, under chapter 3, sections 62, 65 and 66, are in ' the nature of
final judgments, and are conclusive of the facts determined. Whatever defects, omissions or
irregularities may be discovered in the proceedings of the election, in the poll books or tally
papers, etc., etc., or in the conduct of the election officers, not amounting to actual fraud, the
determination of the supervisors of each county in certifying what they adjudge to be the “true
results,” precludes further inquiry into such defects, etc. The certificates of the supervisors, under
the statute, are final; and, like judge-ments of courts having jurisdiction, not to be impeached or
set aside, except for fraud or mistake appearing upon the face of the proceedings of the boards,
or upon some ground which, in equity, would be proper to invalidate the judgment of ordinary
judicial tribunals.

We therefore recapitulate, and insist that the alleged specifications Nos 1 to 13 inclusive, for the
reasons specially assigned to each, are “vague, unprecise and argumentative ; associating
irregularities and illegalities; affording no sufficient notice to the Respondent; and wanting in
that clearness, plainness and directness which ought to characterize such a proceedings,” and
should be stricken out of the case.

But, on the 24th day of October 1872, the Contestant served a copy of a supplementary petition,
in which he charges, “That at several of the voting places in Calhoun county, the ballots were
never sealed up by the inspectors of said election, etc., so that it is difficult, if notimpossi-
*687lile, bow to tell wbat particular ballots were cast’at any .specified voting place in Calhoun
county, and therefore • prays that the “ballots” may be produced for inspection upon the trial of
the contest, etc.”

To this, we object (1.) That it is not filed in time; the Code requiring the Contestant to “give
notice with specifications and affidavit, within sixty days” after the election takes place. Chapter
6, section 2. This period elapsed ■on the 21st day of October 1872. (2.) The charge and prayer of
this supplemental petition are inconsistent, indefinite, and present an impossible inquiry to the
court. We therefore move to quash it.

On the 9th day of Nov. 1872, the Contestant served upon Respondent a paper purporting to be a
“Replication to return notice of Respondent, and additional notice with specifications” of
Contestant.

This additional notice, etc., are objected to as not filed within the sixty days, as required by law;
and ujion this point the court will observe that the Code, chapter 6, section 2, allows the
contestant sixty days in which to prepare his case, and the respondent but thirty. Then the parties
are required to finish taking depositions within forty days after the respondent’s return notice is
delivered.

“In other respects, the regulations contained in that chapter regarding contests for seats in the
legislature are to be observed, so .far as they are applicable.”
But it may be contended that section 4 allows additional notice or notices if new facts be
discovered. This; however can only be permitted within the term of 60 days; otherwise it would
be absurd to limit the time at all. Because, if the time is not material, but the amendment may be
made at anytime within the period allowed to take depositions, it is very evident that the grossest
injustice could be perpretrated upon the respondent, by simply giving him, in the original notice,
the most general and indefinite charges, withholding the most important — and then, when it
would be too late to make de-*688fence by taking proof, etc., to serve him with the essential
specifications of the contest. It ip clear from section 2, that, as to the time of giving the notices of
contest/ in cases there provided, that section is to control; bnt in other respects the regulations
contained in that chap- ' ter respecting contests for seats in the legislature should be observed so
far as applicable. The opinion of the-court in Kneass’ case does not controvert this view.

Should the court overrule this motion, I then move to quash the additional notice and
specifications, for the reasons stated upon the motion made to the original notice and
specifications.

Woods, Judge.

In this case, the respondent James M. Jackson who' had been voted for, as a candidate for the
office of judge of the 5th judicial circuit, at the election held therein on the 22nd day of August
1872, having been duly certified, by the several boards of supervisors of the counties composing
the said circuit, to have received the largest number of votes, was proclaimed, by the governor of
the state, duly elected to the office of judge of the said circuit.

The contestant George Loomis who had also been a candidate at the said election for the said
office of judge, gave notice to the Respondent of his intention to contest his election to said
office; setting forth three distinct ground of contest, with fourteen specifications thereto annexed;
which were duly served upon said Respondent on the 5th day of October 1872. '

The Contestant, claiming to have discovered new facts-after he had given his original notice and
specifications, caused to be served upon the Respondent a new notice, with four additional
specifications, on the 9th day of November 1872; and afterwards, on the 26th day of November
1872, he caused to be served on said Respondent an additional and supplemental specification,
“as an appendage to his former specifications.”

*689The Contestant presented to this Court a petition, ¡addressed to “His Excellency, J. J. Jacob,
Governor of the State of West Virginia,” of which the said original notice and the fourteen
specifications thereto attached were made a part; he also presented said new notice, with said
four additional specifications, and the said supplemental specification; all of which' were filed,
subject to all just and legal exceptions.

The Respondent thereupon moved the Court to quash the said petition, notices and
specifications, for errors •apparent upon the face thereof, and because the said new notice and
specifications were not served within sixty d'ays next after the said election. After the Court had
sustained the said motion to quash said notices and specifications, the Contestant moved the
Court for leave to amend said specifications and notices, by filing, as parts thereof, copies of the
certificates, made by the several boards of supervisors of the counties in said circuit to the
governor, of the result of said election for judge in their respective counties; which motion the
Court overruled.

The fact that no case has ever before occurred in the history of this State, in which the election of
a judge of the circuit court has been contested, in the manner prescribed in chapter 6 of the Code
of West Virginia, clothes the case at bar with peculiar interest, not only to the distinguished
gentlemen immediately interested in its result, but to all the people of the State.

Presenting for judicial construction, many important questions touching the requirements of the
3rd and 6th chap ters of the Code of West Virginia, in conducting elections, and in making
returns thereof; the Court approached the consideration of them, with an earnest and anxious
desire to reach such conclusions, resting upon principle and authority, as will secure to the
qualified voters the fair expression of the popular will in every legal election; at the same time,
prevent the defeat of that will, thus ex*690pressed, by the errors, negligence, ignorance, or evert
fraud of the officers or agents conducting the same.

Among the questions presented, are : In what manner is the matter of a judicial contest
inaugurated? To whom must the petition be addressed ? Is the petition filed in this case a
sufficient petition ? Do the provisions of the 6th chapter of the Code of West Virginia, authorize
the contestant to give to respondent new notices of additional facts discovered after the
expiration of sixty days next after the said election ? What are sufficient specifications ? And can
the specifications be amended during the trial, by the addition of new and material allegations ?

The novelty, as well as the importance, of these and other questions of law arising in this case,
must be my apology for presenting the reasons that have brought my mind to the conclusion
hereinafter stated.

The first question naturally presented is, what is the extent of the jurisdiction of this Court? By
reference to the 13th section, chapter 6 of the Code, it will be perceived that its jurisdiction is
limited to “decide impartially according to law and the truth upon the petition, returns and
evidence to be submitted to it, and to hear and determine the case presented in such petition, and
to certify its decision to the governor.”

This jurisdiction necessarily" draws to itself the right to hear and determine all questions
touching the regularity and legality of the acts of the officers, or persons conducting the election,
and making and certifying the returns thereof. It may be, and upon, a proper ease made, it is
required to re-examine all, or such parts of the'election returns in said circuit, as it may deem
necessary, and, if errors be found therein, to correct them according to the law and the truth.
While its authority is thus ample, it will not fail to remember that all officers and other persons
engaged in conducting said elections, or in making the returns and certificates of the result
thereof, as required by law, are, in this Court en*691titled to the legal presumption that they
acted in accordance with the law, until the contrary shall be specifically alleged, and fully
proved.
The motion of Respondent to quash, brings up for consideration and determination the legal
questions arising upon the face of the said petition, notices and specifications, as well to the legal
sufficiency thereof, as to the right of the Contestant to rely upon his said new notice and
specifications, given to the Respondent after the expiration of the sixty days next after the
election, and after the service of the original notice and specifications.

First in the order of inquiry is the question — does the 11th section of chapter 6 of the Code of
West Virginia, authorize the Contestant to give to the Respondent the new notice and
specifications, of newly discovered facts, filed in this case?

The provisions of the said 6th chapter of the Code, must settle this question, it is merely one of
construction

It is evident that in every contested election provided for in the 11th section, it was intended that
it should be commenced and ended within a comparatively short space of time; and that it was
not intended to permit an incumbent to hold his office much beyond the limit of its constitutional
term, and thus enable him to carry on a protracted and dilatory contest with the person certified
to have been elected to that office.

It is provided by section 2 of chapter 6 of the Code, that a contest with a member of the house of
delegates, must be commenced within twenty-one days, and with a member ot the senate within
forty days, next after the election; and by the 11th section it is further provided, that a contest
with a governor, secretary of the state, treasurer, auditor, attorney general, judge of the supreme
court of appeals, or of a circuit court, must be commenced within sixty days after the election. In
each instance, the period within which the contest is to be commenced is enlarged in proportion
as the party *692whose right is to be contested, was elected by the voters ° . from a small or
large district,

A party who desires to contest the election of a judge 0f a circuit court, is required to give notice,
with specifications, to the party whose right is contested wthiin sixty days next after the election;
the return notice of the respondent must be given to the contestant within thirty days after the
service of his notice upon respondent; and the taking of all depositions must be concluded within
forty days after the service of said return notice. “In other respects, the regulations contained in
chapter 6 respecting contests for seats in either branch of the legislature shall be observed, as far
as practicable.”

By section 4 of chapter 6 of the Code, it is expressly declared, that, in contests respecting seats in
the legislature, “If new facts be discovered by either party after he has given notice as aforesaid,
he may give additional notice or notices to his adversary, with specifications and affidavit as
above prescribed.” The contestant in a judicial contest, needing all the time allowed by the law to
collect the facts of the case, may postpone the service of his notice of contest until the sixtieth
day after the election; and the the respondent may'in like manner and for a similar reason, delay
the service of the return notice until the thirtieth day thereafter. To deny the contestant the right
to serve a new notice of facts discovered after the service of his original notice, and after the
expiration of said sixty days, might place him in a very great degree at the mercy of the
respondent. The new facts or some clue to the discovery of them, may, for the first time, be
disclosed by the return notice itself, and to deny the right, under such circumstances, might be
equivalent to a total denial of justice to the contestant.

As all the depositions are required to be taken within forty days next after serving the return
notice, and as section 8 of chapter 6, declares that neither party shall have the benefit of any
deposition, unless taken upon reasonable notice to the adverse party, it cannot be per*693ceived
how material injury or injustice could thereby be done to the respondent. I am, therefore, of the
opinion that new notices with additional specifications of new facts, discovered after the service
of the original notice and specifications, and after the expiration of said sixty days, may be given
by the contestant within the forty days allotted for taking the depositions — subject always to the
limitation necessarily implied in sections 5 and 8, of chapter 6, requiring that all depositions in
support thereof, shall be taken upon reasonable notice to the adverse party. But in every such
instance, it must appear by proper averments that the facts relied on to authorize the giving of the
additional notice or notices, are new facts; and were discovered after the service of the original
notice ; and that they are such as the party could not have learned at that time by the exercise of
due diligence; and that they are also material and relevant to the .main question in controversy.

The petition filed in this Court, is addressed to the governor of the state; and sets forth" the
grounds of contest; and exhibits, as part thereof, the said original notice and specifications; and
prays that a special court may be convened according to the 13th section of chapter 6, for the
trial thereof; for the production of the ballots, poll books and inspectors certificates for the
various counties; and for general relief, in accordance with said notice.

The petition should have been addressed to this Court, and not to the governor. It ought not to
have contained any prayer for relief, beyond what this Court is authorized to afford; which is
confined to the duty of certifying to the governor which of the parties to the contest had been
elected to the office of judge or that no legal election therefor had been held in the said circuit.

Before the Contestant could rightfully invoke the authority of the governor to convene the
special court provided by the 13th section of chapter 6, and procure testimony to be used before
it, on the trial of the contest, *694it was necessary that he should file with the governor in his
office, a petition with copies of his grounds of contest, notice and specifications, as the basis of
his action jn COnvening this Court. Such petition must remain in the governor’s office, for
without it, he could have no evidence upon which to base or j ustify his official action.

The petition of the Contestant, containing, as it does, matters not properly addressed to this court,
will not for that cause be held bad, but the irrelevant matters must be treated as surplussage. The
sufficiency of this petition, embracing, at it does, the grounds of contest and the original notice
with the fourteen specifications thereto annexed, must be determined by the principles of law
established in similar cases of contest in other states, 'as modified and controlled by the particular
provisions of the Code of West Virginia.

Many of the provisions of the law in regard to the manner of holding and conducting the
elections and counting the votes and certifying the result, must be held to be directory only, and
intended to point out to inexperienced and ignorant persons, who are sometimes necessarily
called upon to act as election officers, a plain, easy and direct way by which they are to attain the
great end of their creation, viz: To ascertain the true result of the election. When the true result of
a legal election has beeu ascertained, or can be ascertained, by the officers charged with the
performance of this duty, no irregularity, mistake or even fraud committed by any of the officers
conducting the election, or by any other person, can be permitted to defeat the fair expression of
the popular will as expressed in said section. In the case of the People vs. Cook, 8 N. Y. 67, it
was held by the Court of Appeals of that State, that “The rule was well settled, that statutes
directing the mode of proceeding by public officers are directory, and are not regarded as
essential to the validity of the proceedings themselves, unless it be so declared in the statute.”
Judge Cooley, in his “Constitutional Limitations,” p. 75, commenting on the de-*695cisión of
the Court in People vs. Cook, says: “The Court was right in holding that the election was not to .
be avoided for a failure in the officers appointed to conduct it, to comply in all respects with the
directions of the statute.”

The reasons on which this well established rule is founded, are so clearly set forth in Cooleys
Con. Lim. p. 617, that they may with propriety .be here repeated: “As the execution of these
statutes must very often fall into the hands of men unacquainted with the law, and unschooled in
business, it is inevitable that mistakes shall sometimes occur, and that very often the law will fail
of strict compliance. Where an election is thus rendered irregular, whether the irregularity shall
avoid it or not must depend, generally, upon the effect the irregularity may have had in
obstructing the complete expression of the popular will, or the production of satisfactory
evidence thereof. Election statutes are to be tested like other statutes; but with a leaning to
liberality, in view of’ the great public purpose which they accomplish; and ex- * cept where they
specifically provide that a thing shall be done in the manner indicated, and not otherwise, their
provisions, designed merely for the information and guidance of the officers, must be regarded as
directory only; and the election will not be defeated by a failure to comply with them, provided,
the irregularity has not . hindered any who were entitled (to vote,) from exercising the right of
suffrage, or rendered doubtful the evidences from which the result was to be declared.” In People
vs. Cook, the Court announced the rule in regard to irregularities to be, that “Any irregularity in
conducting an election, which does not deprive a legal voter of his vote, or admit a disqualified
voter to vote, or cast uncertainty on the result, and has been occasioned by the agency of a party
seeking to derive a benefit from it, should be overlooked in a proceeding to try the right to an
office depending on said election.” See also 16 *696Mich. 283; 29 Ills. 72; 19 Barbour 540;
Chadwick vs. Melvin, Brightly L. C. E. 256.

The following irregularities, have been held to be im- ■ material: where the inspector acted as
clerk; and where more than the lawful number of inspectors acted at the election; Brightly L. C.
E. 452: where a clerk assumed the place" of an absent inspector 1' Brewster 69 : where one of the
clerks during the election became so much intoxicated as to be unable to continue his labors, and
another person was called, who acted in his place, without being sworn, until the regular clerk
was able to resume his labors; see Boileaus case, Brightly L. C. E. pp. 268, 452: where the
election officers, being illiterate, called in a person who was not an election officer or clerk, to
take the ballots from the box and read them to the tellers, at the invitation of the election officers;
see Sprague v. Norway, 31, California 175; the omission of the inspectors, while counting the
votes, to take out “the ballots deliberately from the boxes, and read aloud the names printed
thereon : 2 Pars. 515; and lastly, the omission of the judges or clerks of an election to sign the
poll books, to fill up blanks in the caption, or to state the aggregate number of the votes all which
may be corrected by parol, and when corrected, used as competent evidence of the result of the
election; 19 Ohio St. R. 189.

■ It may therefore be safely affirmed, that no irregularity, or even misconduct, on the part of the
election officers, or other persons, will vitiate an otherwise legal election, unless the result
thereof has been thereby changed, or rendered so uncertain as to make it impossible to ascertain
the true result. A different rule would make the manner of preforming a public duty, more
important than the duty itself. As nothing can be proved-, that is not alleged, it follows that a
contestant, either in his petition or notice of the grounds of contest and specifications, must by
direct averments substantially shew what was the result of the election as declared by *697the
returning officers, and in what manner and to what extent that result will be affected by the
errors, irregularities and illegalities complained of in the specifications. And unless it further
appear .upon the face of the petition, notice or specifications, that the result of said election will
be so changed by proof of said allegations, as to overcome the majority of the person who has
been declared duly elected, or to shew that it is impossible to ascertain the true result, it will be
the duty of the court, on motion, to quash the same. But, inasmuch, as the petition filed in this
case. does not contain any averment as to what the result of said election was, the question as to
the effect of such an averment in the petition, does not arise, and is not determined. See Cong.
Elec. Cases 161, 383, and Brightly L. C. E. 352, 356 and also 323, 324.

This principle was fully recognized by the court in Kneass’case, 2 Pars. 558, where it held, “That
every petition alleging an undue election and false return, must be complete in itself, and must
state such grounds as would, if supported by proof, be cause for rendering it void, or declaring
another elected; and when some of the grounds alleged are irregularities, which if proved would
not be sufficient cause for setting aside the election, such specification will be stricken out on
motion.” Leaving, for the present, the consideration of the lorego-ing cases arising in other
states, where these questions were carried at once from the officers conducting • the elections
into their common law,courts, by petition or information in the nature of a “writ of quo warranto
f let us return to a careful examination of our own Code which by special provisions, enables us
to correct all irregularities, mistakes and even frauds committed or caused, at or after the
election' by the election officers or other persons, without being driven to the necessity of
making a formal contest.

By section 18 of chapter 3 of the Code it is provided, hat “no error or mistake in the designation
of the *698office or person shall vitiate any ballot, or cause it to-be rejected from the count, if it
be manifest what was intended by the voter.”

By the 64th section of chapter 3 it is further provided,, “That no illegal vote received, nor legal
one rejected at any voting place, shall cause the return taken at such place to be set aside for that
cause, but the fact may be shown by proper evidence before the final judges of the election, and
the return in these respects corrected.” These two provisions remove many of the difficulties that
without them would be constantly arising.

By a careful examination of secs. 62, 65 and 66 of Chap.. 3 of the Code, it will be perceived that
the boards of supervisors in the several counties, are charged with the performance of many of
the highest duties that can be devolved upon any judicial tribunal, viz: to procure correct returns
and ascertain the true result of all elections-in their several counties.

They are required, “To convene at the court house on the 5th day after every election held in
their county; and their clerk is required to lay before them the ballots, poll books and inspectors
certificates of the results of the election at the several voting places; they may, if they deem it
necessary, require the attendance of the inspectors or other persons present at the election, and
examine them under oath respecting the same; they may demand the production of the poll books
and certificates filed in the reccorder’s office; and also make such other-order as shall -seem
proper to procure correct returns, and ascertain the true result of the election in their county; they
may adjourn from time to time; and open and examine the sealed packages of ballots, and
recount the same.” Having done all these things, or such of them as they deemed necessary to
enable them to perform these judicial functions, they are, by the 66th section of chapter 3, further
required, under the regulations prescribed in the 62d section, “to carefully ascertain the result of
the election in their several counties, for judge, *699&c., and cause- to-be signed by their
presiding officer and clerk the certificates thereof specifically prescribed in said section.”

A grant of authority thus extensive to call and examine witnesses, to compel the production of
papers, to open, inspect, examine and count the ballots, and to make all orders deemed necessary
to enable them to discharge these duties, and to continue their examination by adjournments
from time to time, until they have ascertained the true result of the election, indicates, in the
strongest possible manner, the intention of the legislature to create a judicial tribunal, whose
determinations upon that subject should be entitled to the force and validity of a judgment, until
impeached on the grounds of mistake, corruption or fraud precisely averred and clearly proved.
Taken together, these provisions of the Code clearly shew that they were intended to avoid the
necessity of resorting to contested elections of judges and state officers, except in cases of
mistake, corruption or fraud, by providing the people with a tribunal essentially and peculiarly
their own, always accessible to them, to the judgment of which, in the first instance, the returns
of all elections are submitted for examination and correction.

It is also clear, to my mind, that the legislature further intended that no legal election should be
set aside upon the ground of illegal votes received, or legal votes rejected, or any ambiguity in
the ballots as to the designation of the person voted for, or of the office intended.

As all the baljots, poll books and inspectors certificates from all the voting places in every
county, are required to be laid before the board of supervisors of said county, who are authorized
to examine, inspect, hear proof of, and correct the same before they ascertain and certify the
“true result,” it is a just and reasonable presumption of law, that all errors, irregularities and
illegalities committed at the election, or existing at the time the election returns are examined by
the boards of super*700visors, must, in the absence of averments and proof to the contrary, be
taken and held to have been corrected by said boards, and excluded from certificates of the
correct result.

As a necessary deduction from this principle, it follows that any specification which alleges
errors, irregularities, illegalities or malconduct on the part of the officers or other persons
conducting the election, committed before the action of the board of supervisors was had
thereon, must be held, insufficient, unless it is further alleged that the said errors were carried
into, and formed a part of the result of the election as certified by the board of supervisors.

Let us now apply these principles to the petition, notices and specifications filed in this case by
the Contestant, and now submitted to®the Court on said motion to quash.

The Contestant relies upon three grounds of contest, in substance as follows :

“1st. He was a candidate'for the office of judge of the circuit court for the fifth judicial circuit,
and was voted for as such at the election held therein on the 22nd day day of August 1872; and
that he received a higher number of votes than did the respondent James M. Jackson; and he is
entitled to have same allowed to him, and, in consequence thereof, to be commissioned judge in
the said circuit.”
“2nd. In divers precincts in the several counties composing the said circuit, there was such
malconduct at the voting places therein by the officers conducting the election, and such
interference by others suffered at the polls, as to preclude a fair expression of the will of the legal
voters, voting and offering to vote, as to render it impossible to determine at such voting places
who was the choice of said voters for said office of judge ; notwithstanding which, the election
officers then and there acting, whose duty it was to declare the result of said election, declared
the same in favor of said James M. *701Jackson, wrongfully and to tbe prejudice-of tbe
Contestant.”
“3rd. At tbe court house of Wood county in Park-ersburg, when tbe inspectors and clerks in the
presence of the supervisors were counting the ballots, they found, in two instances, two ballots
folded together; and the names on each were the same, and Contestants name was on all of them,
as the person voted for as judge ; all of said ballots so found folded together were destroyed by
said officers, and none of them was counted; and said Jackson was present, directing them to be '
destroyed; therefore, the Contestant claims that, after the certificates of the several boards of
supervisors shall be corrected in the manner set out in his several specifications, these ballots so
destroyed would of themselves change the result of the election.”

It will be, perceived that these grounds of contest fail to allege the number of votes which the
boards of supervisors of the several counties certify were given to the Contestant, or to the
Respondent, or what majority of the Respondent was to be overcome by the Contestant. In other
words, the actual result of the election does not appear. Unless some other part of the record of
the Contestant’s case as now presented to the Court, supply this necessary fact, and also that the
result of the election will be thereby changed in favor of the Contestant, or that the election itself
was illegal, the motion of the Respondent to quash must be sustained.

Of the specifications,

The 1st sets forth; “That the board of supervisors of Pleas-ants county certified to the
Respondent 387 votes, and to the Contestant 345 votes; whereas, in Grant township in said
county, the Contestant received five votes more than he is certified there to have received; which
were not counted to him, as appears by the poll books, tally sheets and ballots at that voting
place.”
*702This specification is defective,. because it does not thereby appear that the said error of five
votes was carried into the-result as certified by said -board of supervisors.- As such an error was
apparent upon the papers 'laid before them on the 5th day after the election, and as it became
their duty to correct it by excluding it from their certificate of the result, it is not to be inferred by
this Court that they failed to correct it, especially when the Contestant declines to allege it.

The 2nd specification sets forth; “That in McKim township in Pleasants county, during the
election, before the ballots were counted, the ballot box was opened, and one Hanson Pointer
took out of it nineteen ballots, more or less; that he was not an election officer, and he had no
authority to do so ; that one Simjison Jones, who was the supervisor then and there conducting
said election, acted in the twofold character of clerk and supervisor of said election contrary to
law; and that said election at that place was conducted generally in such manner as to repel the
presumption that' the ballots were not tampered with. For these causes he asks that the poll taken
at that place be set aside.”

All these acts may have been perfectly innocent, and the election, for aught that'appears, may
have been perfectly fair. The act of Hanson Pointer, in taking a ballot from the box, was an
impertinent interference with the election, and deserved rebuke. But how many ballots were so
taken out? “Nineteen, move or less!” This may be equally true when said of one or one thousand
ballots. The act is a mere irregularity which in no manner affected the result of the election. Was
the ballot taken out by Pointer restored to the box ? If not, the board of supervisors could have
corrected it, and it was their duty to do so. It is not alleged they did not do so. It is therefore to be
presumed they did. The Court has not been able to find any law forbidding the supervisor, or any
of the inspectors, conducting the election to act as clerk. It may have been impossible to obtain
*703a suitable clerk; and a legal'election is not to be permitted to fail for want of a clerk. See
People vs. Cook, Brightly L. C. E., 441, 442. For these reasons, I am of opinion that this
specification is fatally defective.

The 3d specification contains three clauses. The 1st alleges; “Thatthe board of supervisors of
Calhoun county certified that .Respondent received in that county 469 votes, and Contestant 186
votes; which was erroneous, because in Washington township in said county, the inspectors
counted Respondent two votes more than he received.” The 2nd clause of this specification
alleges; “That the inspectors of Sherman township counted to the Respondent-ten votes more
than he received, and that both of said errors were carried by the board of supervisors into their
certificate, and formed a part of 469 votes.” The 3rd clause alleges; “That in Washington
township in said county, Contestant received 13 votes, and that the inspectors of the election at
that place counted to him only 9 votes, being four less than he received; and that the board of
supervisors did not include said four in said 186 votes.” It does not allege any error or mistake in
the judgment and consequent action on the part of the election officers, or of the board of
supervisors, in not counting said four votes; they may have been illegal votes, which fact, if
known to the said officers, or board, would cause them to be rejected from the count; and for
aught that appears they acted rightly in not counting them. In the absence of such an allegation,
this Court is bound to presume that their action was correct. For these causes said 3rd clause is
defective.
The said 1st and 2nd clauses of this specification would be sufficient but for an objection which,
in the opinion of a majority of the Court, underlies the whole case.

The 4th specification alleges only; “That in Sheridan township in Calhoun county, on the day of
the election, and before the poll was closed, the ballot box was opened *704several times, and
the ballots handled, examined and tampered with by unauthorized persons; and other
misconduct, and irregularities were practiced to such an extent as to invalidate the poll at that
place.”

It is not alleged or pretended, that there were any ballots handled except those in the ballot box,
or that any ballot was abstracted, lost or distroyed, or that any spurious ballots were introduced.
It charges only an irregularity, proper for the correction of the board of supervisors. If any error
in the result was occasioned thereby, it was their duty to correct it. It is not pretended they did
not do so. For these causes this specification is insufficient. See 29 Ills. 72, 1 Brewster 69.
Brightly L. C. E. 268, 452.

The 5th specification charges; “That át the voting place in Grant township in Ritchie county, the
persons who actually conducted the election at that place, were persons other than the legal
officers, for conducting the election at that place, and that such persons were not sworn.”

It does not, therefore, follow that the election was not fairly conducted, or that the persons
referred to were not authorized by law to conduct the election. Section 9 of chapter 3 of the
Code, expressly authorizes persons other than the election officers to conduct elections in the
absence of these officers. This. whole subject was necessarily considered and acted upon by the
board of supervisors, and their action is not impeached.'

The specification must therefore be held insufficient. See Boileaus case, Brightly L. C. E. 268,
452.

The 6th specification charges; “That at Burning Springs township in Wirt couuty, Jasper Gibson
and George Morgan who were minors at the time of the election, voted for Respondent.”

And specification 7 charges; “That at the election in Parkersburg, six other persons who are
named, who were not qualified voters, voted for Respondent-”

*705Both of these last two specifications are fatally • defective, because the 6th does not allege
that the two illegal votes were counted to Respondent, either by the inspectors of the election, or
by the board of supervisors of Wirt county; and becapse the 7th, in like manner, fails to allege
that said six illegal votes were counted to Respondent by the board of supervisors of Wood
county. This Court will not presume they were so counted, as the Contestant has failed to allege
it.

The 8th specification charges; “Upon the personal knowledge of Contestant, that at the court
house, the voting place in Parkersburg township in Wood county, after the polls were closed,
while the ballots were being counted, and before the count was concluded, the respondent James
M. Jackson did take hold of, handle and displace a great number of said ballots before the same
had been fully counted; and claims for these causes, that all the poll received by Respondent at
that place be set aside, because said acts were improper, unwarrantable ' and illegal; leading to
well grounded suspicions, of unfairness, and operated to his prejudice.”

The acts here complained of are; that “Respondent took hold of, handled and displaced” the
identical ballots which had been voted at that place'; and the effect of the acts was only to “lead
to well grounded suspicions of unfairness.”

“Suspicions of unfairness,” however well founded, are not facts. If any ballot was abstracted,
altered, destroyed or exchanged, or.if any other act was then and there done by Respondent,
calculated to produce a false result, why not allege it ? The specification being made by
Contestant.upon his personal knowledge, it is but just to presume that it would have been alleged
if it had existed ; and according to the well established rules of pleading, the court must presume
that what is not alleged does not exist. Did the Contestant by this specification intend to charge
that the Respondent had been guilty of *706a fraud upon the election by handling the ballots? If
so, a recurrence to the rules of pleading will shew that js insufficient for such a purpose. Fraud is
never to presumed it must be particularly alleged, especially Avhen the act. charged as a fraud
may be innocent. See 1 Randolph, 250; 3 Randolph, 507; 44 Barbour, 169; Hillard on Remedies
for Torts. 170. The authorities fully warrant me in announcing the rule in such cases to be, that in
pleading a fraud, the pleader must by apt words allege in his pleading every act, fact and intent
which necessarily enter into, and constitute that partciular fraud; and these essentials must be
alleged with such precision and certainty as to exclude every construction except the fraudulent
and wrongful purpose complained of; and if, from the face of the pleading, it is doubtful whether
the allegations do in fact amount to that particular fraud or not, it is not well pleaded. As a charge
of fraud this specification is utterly insufficient, and, divested of this character, it descends to a
mere insinuation, and dwindles into an irregularity from which it is not pretended any change
was caused in the result of the election at Parkersburg. This specification, for the reasons
heretofore given, and for the additional reason that it charges an irregularity which was subject to
examination and correction by the board of supervisors, whose action thereon is not impeached,
must be held insufficient.

' Specification 9, alleges in substance the same irregularity and no more, and is defective for the
same reasons.

The 10th specification alleges; “That at Parkersburg after the polls were closed, and the ballot
box opened by the inspectors, they did not take the ballots out of the box ‘‘one at a' time,” but
unlawfully took them out of the box, culled and separated the ballots ’into different parcels and
laid them out upon a table, before the inspectors read from said ballots the designation of the
offices to be filled, thereby increasing theop portunities for said *707ballots to be tampered with;
and in consequence of such acts- of the election officers, the Contestant asks to set aside all of
Respondents poll at that place, of 665 votes.”

To grant such a request, for such a cause, would establish a principle which would place in- the
hands of election officers the power to defeat the fair expression of the popular will at any and
every election; it would be-to set a higher value upon the manner of counting the ballots, than
upon the ballots themselves; and it would operate to defeat a large proportion of the elections
required by law to be held.

This specification presenting a 'mere irregularity, not affecting the true result of the election,
must be held insufficient.

The 11th specification contains two clauses. The first alleges; “That at the election in
Parkersburg, the inspectors, in counting the-ballots, found in two or more instances, two or more
ballots folded together on which the names were the same, and Contestant’s name was on each
and every of them as the persons voted for as judge for said 5th circuit; and that They destroyed
all, and counted none of them; and that'Respondent was present directing the same to be done.”
This was such an error as the board of supervisors could and should have corrected. It is not
alleged that they did -not correct it; nor is their action impeached or even questioned; neither
does it affirmatively appear that said error was- carried into and- formed part of the result,
certified as the true result of the election in Wood county. The second clause in this specification
sets forth that: “After said inspectors of said election at Parkersburg, had taken from the ballot
box, and counted^ as many ballots as corresponded to the number of names on the poll books,
they found in the box three ballots in excess, on each of which was Contestant’s name as the
person voted for as judge, which the inspectors destroyed by the direction of Respondent; and he
claims that these' three ballots, thus found in excess, might have been counted for
Con*708testant, but for the action of the Respondent in the premises, and the illegal manner of
taking the ballots from the 'box as hereinbefore stated; and Contestant further claims that the
destruction of said ballots, as above stated, would of itself change the result of the election after
the same should be corrected of the errors set forth in his foregoing 1st and 3rd specification.”

It was the duty of the inspectors to destroy the three ballots in excess, found remaining in the
ballot box, without unfolding or opending, them, or suffering any person to learn their contents.
The speculation, as to what other ballots might have remained in,the box, presents an impossible,
and therefore useless inquiry; and the claim resting thereon must necessarily fall with it. For
these causes, the whole specification is insufficient.

The 12th specification states that; “After the ballots cast at all the voting places in Wood county,
had been by the several inspectors enclosed in sealed envelopes properly endorsed, returned and
delivered to the clerk of the board of supervisors of said county on the 28th day of August 1872,
and before the said board, then and there convened, had examined said inspoctor’s certificates,
laid before them by their clerk, the Respondent caused the sealed package of ballots cast at
Parkersburg, to be broken open and examined, and the ballots therein contained to be handled
and misplaced, without a majority of the said board of supervisors being present at the time and
place when and where they were so broken open, examined, handled and misplaced; and that
only two of said supervisors were present at the time said acts were done; and that they and
Respondent, at his procurement, did unlawfully break open the sealed paclc-of ballots, in number
between 1000 and 2000; and that, after said ballots had been so handled, examined and meddled
with, they were left in a loose, unsafe condition, and were not again sealed up, along with the
original envelope, in another envelope, which Contestant avers, was to his prejudice in the
premises; and also, that *709said two supervisors and Respondent, in counting"'said ballots,
ascertained that Respondent had received a less number of votes for the office of judge, than the
inspectors of Parkersburg township had certified, although the said two supervisors reported to
the full “board/’ that the certificate of the inspectors was correct; for which causes, Contestant
claims that Respondents whole poll in ’Wood county of 1877 votes, may be set aside.”

It might, perhaps, lie sufficient to say that this specification is fatally defective, because, like
many others, it fails to shew or impeach the action of the board of supervisors in regard to the
said returns.

It was their duty “to procure correct returns and ascertain the true result” of the election in Wood
county; they were then and there convened, on the 5th day after the election, for that purpose ;
their clerk had laid before them the poll books, ballots and inspectors’ certificates ; they had been
informed by two of their own body, that the sealed package of the ballots cast at Parkers-burg
had been, by them, broken open and counted; that by that count they had ascertained a particular
result; they had unlimited power to procure testimony, examine witnesses, and they thereupon
ascertained a result, which they judicially determined was the true result of the election in Wood
county; and which, in obedience to the requirement of the law, they caused to be certified to the
governor.

Under these circumstances, this Court cannot pi’esume,s in the absence of any averment of facts
tending to impeach their action, that the result which they ascertained and certified, was not the
“true result” of the election in Wood county.

But if said specification was not defective for the causes which I have pointed out, it is liable to
another exception which is necessarily fatal, viz: that every allegation therein contained may be
true as stated, and yet all the acts complained of may be not only innocent, but con*710sistent
with the law and the honest discharge of official duty, and the exercise of private right. It is the
right of every voter to appear before the board of supervisors, while sitting as a tribunal to
ascertain the true result of an election, and, upon his motion made to them, to procure the sealed
packages of ballots to be broken open and counted; which must necessarily cause them “to be
handled, examined and misplaced.”

Ifc'is the right of the board of supervisors, if they determine to recount the ballots, to appoint a
committee of their own number, less than a majority of the whole, to perform that duty, and
report the result of their examination and count, to the full board, which may adopt it as their
own act; and, unless the board otherwise determine, any person desiring to do so maybe present
and witness the recounting of the ballots. Acts which may thus bear an innocent construction,
and which, as set forth in this specification, almost demand such construction, cannot, in my
opinion, be held sufficient to defeat the fair expression of the popular will] as expressed in a
legal election.

It is not deemed necessary in this opinion to refer to the remaining portion of this specification,
which relates, principally, to a contested election between two gentlemen for the office of justice
in Parkersburg,further than to remark, that as a specification it is wholly immaterial, and as an
argument irrelevant, and, therefore, useless.
The 13th specification charges; “That at Volcano in Wood county, the officers conducting the
election failed and omitted to have entered, by their clerks, the contents of the ballots, as they
were read on tally papers by suitable marks made opposite to, or under the names of the persons
voted for as judge.”

This specification is defective, because it charges a mere irregularity, viz:'that the inspectors
ascertained the true result without tally'papers! What of that? It was the correct result. It is not
alleged or pretended to have been incorrect. It must be presumed correct until the contrary is
alleged.

*711The 14th specification charges; “That at Burning ‘Spring township in Wirt county, the polls
were closed .at 4 o’clock and before sundown, whereby numbers of voters were prevented from
voting at that place, to the Contestant’s prejudice; and that during the time the votes were being
taken, the ballot box was at three different times opened, and the vote counted, to his prejudice.”

This charges a mere irregularity; it is not alleged how, or to what extent the result was affected
by it. How many voters were thus prevented from voting? Wrho were they ? How would they
have voted? Did all, or any of them offer their votes before sundown ? Hone of these facts being
alleged, it is impossible to perceive how the result of the election at' that place would have been
thereby changed. The specification is, therefore, insufficient.

We are now brought to consider the matters sought to be introduced into the record by the
Contestant, by his additional notice and specifications and to determine whether they are of that
character indicated by the 4th section of 6th chapter of the Code.

The Contestant by his new notice informed the Respondent that after the service of his original
notice, he had discovered the new facts particularly set forth in the following additional
specifications: The first additional specification sets forth; “That at the general election held on
the fourth Thursday of October 1868, Contestant was 'elected judge of the circuit court for the
9th judicial circuit of this State, and was duly commissioned as such judge for the term of six
years from the first day of January 1869; that said ninth circuit embraced the counties of Wood,
Wirt and Pleasants, now embraced in said 5th circuit; that the constitutional convention which
was ealled for the purpose of proposing amendments to the constitution of the state, in providing
for an election of officers on the 22nd day of August 1872, transcended the *712powers
delegated to it by the legislature, and that thc-clection was therefore illegal and void.”

Were these facts newly discovered by the Contestant? If so, wherefore was he a candidate for the
exalted position of judge of the circuit court of the 5th judicial circuit at the election on the 22nd
August 1872? Why is-he a contestant before this Court, called into existence by . his own acts,
founded upon the recognition of these very facts?

The answer to these questions is, that these alleged new facts were old well known facts of which
the Contestant, by virtue of his office of judge of said ninth judicial circuit, was bound to take
official notice. Not being-new facts discovered after the service of the original notice, they
cannot be the subject of a new notice under” section 4 of chapter 6.
I have had no difficulty in reaching the following conclusions upon the constitutional questions
presented in this specification, viz:

First. That a constitutional convention lawfully convened, does not derive its powers from the
legislature,, but from the people.

Second. That the powers of a constitutional convention are in the nature of sovereign powers. •

Third. That the legislature can neither limit or restrict them in the exercise of these powers; and

Fourth. That the legality of the election for officers held on the 22nd day of August 1872, after
the ratification of the new constitution and schedule, is not to be-called in question by any court
created or continued by the provisions of that constitution. When it is proposed that this Court
shall determine that the sovereign power of this state cannot lawfully commission a judge-
ofitsown creation, it is invited to commit judicial suicide.. Courts sit to expound the laws made
by their government, and not to declare that government itself an usurpation.

Additional specification 2 sets forth; “That in Clay town-*713rsliip in Wirt county, the officers
of the election at that place suspended the voting about one o’clock, p. m., opened the ballot box
and counted the ballots; after which, other votes ■ were received, and in this manner the ballots
were were counted, the voting suspended and resumed, and the polls closed before sundown.”

Additional specification 3, charges; “That the election •officers at Newark township inWirt
county, were notsworn according to law before entering upon their duties, and not until the poll
books were returned to the clerk of the board of supervisors; and that the polls were closed
before sundown; and the ballot box was opened and ballots examined before the voting had
ceased.”

Additional specification 4charges; “That at the several voting places in Calhoun county,
especially at Richardson-villesome of the officers conducting the eleetienby previous
arrangement with Respondent and with his assent, con■cealed and destroyed ballots (tickets) that
had on them the name of Contestant, as the candidate for judge, so that the same could not be
furnished to the voters who desired to vote the same.”

Of till the last three additional specifications it may be said, they all fail to shew that any of these
acts deprived any legal voter of his vote, or that any illegal votes were received; or that any
uncertainty was thereby cast upon the result; or that the boards of supervisors improperly
approved the returns, if any errors existed therein. Being therefore wholly immaterial, they must
be held insuffi■cient. They are such facts as the Contestant could have le.arned by the exercise
of due diligence before giving his original notice.'

There remains to be considered the last additional and supplemental specification, which] states;
“That at said election in Washington township in Pleasants county, the poll books do not shew
that any person was voted for, for the said office of judge at that place; nor was there on said poll
books any certificate made by any of the officers conducting said election, that any person
*714received any votes for said office of judge. Yet the board of supervisors of Pleasant county,
certified that" the Respondent received in said township, for the said' office, 87 votes, and
Contestant 65 votes.”

This specification contains no new facts; on the contrary it is a fact that was apparent upon the
face of the poll books, and could have been learned by the exercise-of due diligence before the
service of the original notice ; indeed it could scarcely fail to be known to any person interested
in the result of the election. But if it was a newly discovered fact, tlie specification discloses no
irregularity, or error, in the action of the board of supervisors in regard to it. It was their duty to
ascertain the true result of the election at that place, and in doing so, it was their duty to count
and certify to Respondent and Contestant the number of legal ballots actually cast for them,
whether the name of the office appeared upon the poll books or not, if there appeared upon the
ballots themselves the designation of the office for which they were cast. Nothing being alleged
against the action of the board of supervisors, it cannot be presumed that they acted improperly,
or that they did not ascertain the “true result.” This specification' is, therefore, insufficient.

I am therefore of opinion that the additional notice* of the Contestant, with all of said last
mentioned five' specifications of newly discovered facts, must be excluded from this case,
because it sufficiently appears, from1 the face thereof, that at the time of the service of the1
original notice and specifications on the Respondent,, they were all well known to the
Contestant, or could* have been known by him, “by the exercise of due diligence;” and the said
facts themselves do not, and cannot affect the general result of the election in said circuit..

From this examination of the case made before this-Court by the Contestant, it is manifest that
his petition, original notice and specifications taken separately as parts or collectively as a whole,
fail to allege and shew *715wliat was the actual result of the said election for judge in said otli
circuit, cither by setting forth the votes cast for Contestant and Respondent, or the majority,
certified to Respondent, sought to be overcome by the Contestant.

For this reason, which applies to the whole case, as well as for the reasons hereinbefore given
which apply to the particular specifications, I am oí the opinion that the motion of Respondent to
quash the original- notice and specifications must bo sustained.

It only remains to consider the motion made by the Contestant to amend the original notice and
specifications, after the motion to quash had been sustained, by filing as parts thereof copies of
the certificates of the result of said election, made by the several boards of supervisors of the
counties composing said 5th circuit.

This is a proposition that the Contestant be now permitted to make an entirely new case in this
Court; to tender to the Respondent a new issue, upon which he could not have been required, or
even permitted to take testimony in the country; an issue upon facts of which he had no previous
notice; and to require him upon this new issue to proceed at once to trial.

If it was perfectly clear that this Court possessed the general powers to amend which are incident
to courts exercising a general common law jurisdiction, it would hesitate to allow such an
amendment to be made at such a time and under such circumstances.
This Court is one of limited jurisdiction, confined to the trial of one single cause, and becomes
functus ofició as soon as that cause is determined. It possesses no inherent power, and it can be
directed in the exercise of its authority only by the provisions of the statute creating it.

Possessing no common law jurisdiction, it cannot thence, derive the incidental power of
amendment. The statute creating it docs not expressly grant to it such a power; but on the
contrary, by reserving to the parties the right to supply defects to a certain limited extent.
*716upon certain conditions and within a specified time, that power, by very strong implication,
is withheld from this court. The 8th section of chapter 131 of the Code, an-, thorizing the
amendment of the pleadings in certain cases, cannot apply to this Court; for the courts there
referred to can impose conditions upon the party asking leave to amend, by payment of costs, or
granting á continuance, if thereby made necessary, which this Court cannot do.

I' am, therefore, further of the opinion that this Court cannot allow the amendment asked for, to
be made; and that said motion must be overruled.

As nothing in this case now remains but the petition of the Contestant, unsupported by the notice
of the grounds of contest and specifications required by law, I am of opinion that the said petition
must be dismissed-

Smith, President, concurs in the foregoing opinion.

FRANTZ v. AUTRY
1907 OK 65
91 P. 193
18 Okla. 561
Decided: 06/25/1907
Supreme Court of Oklahoma

FRANK FRANTZ, W. H. MURRAY, JOHN M. YOUNG, C. I. OVERSTREET, C. H.

CHOWNING, C. M. DELZELL, M. R. MANSFIELD, CHARLES BOWMAN, J. C. MAJOR, I.
J. CORWIN, AND CHARLES B. POWELL
v.
G. E. AUTRY

Syllabus

¶0 1. CONSTITUTION--Defined. A constitution is the written instrument by which the

fundamental powers of the government are established, limited, and defined, and by which those
powers are distributed among the several departments for their safe and useful exercise for the
benefit of the body politic.
2. CONSTITUTIONAL CONVENTION--Powers of. The constitutional convention is vested
with the powers, and charged with the duty and responsibility of forming a constitution and state
government; and in the performance of such duties it exercises legislative powers and functions.
3. SAME--Same--Limitations. The convention has, and can exercise plenary powers, subject to
the limitations and restrictions that the constitution shall be republican in form, that it shall not
be repugnant to the constitution of the United States and the principles of the Declaration of
Independence, that no distinction shall be made on account of race or color, and that the
convention shall by ordinance irrevocable accept all the terms and conditions In the enabling act.
4. SAME--Same--Powers to Form Counties. The power vested in the convention to form a state
government clearly implies the power to create and define all the counties within the limits of the
proposed state, the only limitation upon the convention in this respect being that the Osage
Indian Reservation shall remain a separate county until the lands therein are allotted in severalty,
and until changed by the legislature of the state.
5. COUNTY--Defined. A county is one of the territorial divisions of the state created for public
and political purposes connected with the administration of the state government.
6. OFFICERS--Defined under Terms of Enabling Act. Officers for a full state government, under
the terms of the enabling act, include not only state officers whose powers and duties are
coextensive with the limits of the state, but include all the officers provided for in the
constitution, from the highest to the lowest, whose duties are in any manner connected with the
administration of the state government.
7. CONSTITUTIONAL CONVENTION--Power of--Elections. Congress by the express terms of
the enabling act, conferred the power and authority upon the convention to pass appropriate
ordinances for submitting the constitution to the people for ratification or rejection at an election
to be held at a time fixed in said ordinance.
8. ORDINANCE--Defined. An ordinance, as used in this act, means a law which is essential to
carrying into effect merely the objects for which the convention was created. Such an ordinance,
when once adopted by the convention, has the force and effect of law.
9. COURT OF EQUITY--Powers of--Jurisdiction as regards Constitutional Convention. A court
of equity has no power or jurisdiction to restrain or enjoin the constitutional convention, its
officers or delegates from exercising any of the rights, powers, and obligations confided to it by
congress or the people; nor can the powers of the court be invoked to restrain or enjoin the
submission of the constitution or any proposition contained therein to a vote or the people in
advance of its adoption and ratification by the people and its approval by the President of the
United States, on the ground that the proposed constitution or any of its provisions is
unconstitutional, or that the convention acted in excess of its lawful powers.
10. CONSTITUTIONAL LAW--Power of Congress--Delegated to President. The constitution,
of the United States guarantees to every state a republican form of government and power to
determine whether the constitution is republican in form is primarily a legislative power, and
resides in congress; but this power was delegated by congress to the President of the United
States, and such question is not subject to judicial cognizance.
STATEMENT OF FACTS.
On June 16, 1906, the congress of the United States passed an act entitled "An Act to Enable the
People of Oklahoma and of the Indian Territory to Form a Constitution and State Government
and be Admitted into the Union on an equal footing with the Original States," U.S. Stats. L. 59th
Congress, chap. 3335.
Under and in conformity with the provisions of this act, members of the constitutional
convention were elected, and the convention was duly organized, W. H. Murray being elected its
president and John M. Young its secretary.
Thereupon the convention proceeded to the forming of a constitution and state government, and
an ordinance for the submission of the same to the qualified voters of the proposed state of
Oklahoma for ratification or rejection, August 6, 1907, being the date fixed by said ordinance for
the holding of such election, which ordinance also provided for the election of all state, district,
county, and township officers, including the members of the legislature and five representatives
to congress.
It was also provided that within twenty days after the adoption of such constitution and
ordinance by the constitutional convention, which was done on April 22, 1907, the governor of
Oklahoma should issue a proclamation calling an election for the sixth day of August, 1907, in
the manner prescribed by said ordinance; and that if the governor should fail or neglect to call
such election, then the president of the constitutional convention was authorized to issue such
proclamation.
Woods and Woodward counties are organized and existing counties of the Territory of
Oklahoma, and have been such since the opening of the Cherokee Outlet to settlement in 1893,
each of said counties having a full complement of county, township, and city officers. It is
proposed by the constitutional convention by one of the provisions of the constitution, to divide
the territory which has heretofore composed Woods county into three parts, a portion of the
eastern part of said county being designated and established as Alfalfa county, a portion of the
southern part as Major county, and the remainder of said county of Woods, together with several
congressional townships taken from Woodward county, is designated as Woods county. This
action of the convention provides for the establishment of two entirely new counties, to wit,
Alfalfa and Major, which do not, at the present time, exist as counties in the Territory of
Oklahoma.
By the terms and provisions of the election ordinance, three persons are named and appointed as
county commissioners, and one person as county clerk, for each of said Alfalfa and Major
counties. The counties are divided into municipal townships and commissioners' districts, to
conform to such divisions in the other counties of Oklahoma, and it is further provided in said
ordinance that:
"Said county commissioners shall on or before the 8th day of June, A. D. 1907, divide or
designate the townships of their respective counties into election precincts and establish the
boundaries of the same, and shall designate a polling place in each precinct, and appoint all
necessary inspectors of election in the several precincts, whose duties shall be the same as
inspectors of election under the laws of the Territory of Oklahoma, and shall also perform all
other duties required to be done or performed by the boards of county commissioners pertaining
to elections under the laws of the Territory of Oklahoma for elections therein, and shall perform
all other duties or acts necessary to the conduct of said elections."
This action was commenced in the district court of Woods county by G. E. Autry, a taxpayer and
member of the board of county commissioners of said county, against Frank Frantz, governor of
Oklahoma, and W. H. Murray, president of the constitutional convention, John M. Young,
secretary thereof, and the other defendants as the said designated county commissioners and
county clerks of the counties of Alfalfa and Major, to enjoin the said Frank Frantz, W. H.
Murray, and John M. Young from issuing or publishing any proclamation in which said
proclamation it is proposed to submit to the electors of the proposed state of Oklahoma, either as
a part of the proposed constitution or as a separate ordinance, any clause or provision dividing or
purporting to divide Woods county, or changing or in anywise interfering with any township or
precinct therein, and to enjoin and restrain the said C. I. Overstreet, C. H. Chowning, C. M.
Delzell, M. R. Mansfield, Charles Bowman, J. C. Major, I. J. Corwin and Charles B. Powell
from in anywise interfering with or usurping or attempting to usurp any of the duties of the
county commissioners or county clerk, or any or either of them, of the county of Woods, in or
about the said proposed election or any of the preparations therefor, at or in any part of the
territory of the county of Woods as now described and existing, and from in anywise acting or
attempting to act in any capacity or to any extent in any election to be held in the said pretended
counties of Alfalfa and Major, or either of them.
In the absence of the district judge from the county, application was presented to the probate
judge of Woods county, and a temporary order of injunction was granted as prayed for in the
plaintiff's petition.
Defendants in the court below, appellants here, interposed a demurrer to the petition, for and
upon the grounds that the plaintiff had no legal capacity to sue; that the court had no jurisdiction
of the subject-matter of the action; and that the petition did not state facts sufficient to constitute
a cause of action. At the same time a motion to dissolve the temporary injunction was filed, for
the reasons and upon the grounds above stated, and in addition thereto alleging that the
defendants and each of them are only attempting to perform those acts and duties legally
imposed upon them by the ordinance of the constitutional convention, and that the convention
organized under the laws of congress has legal power and authority to provide by ordinance for
the performance of the duties which are imposed upon them.
Upon the presentation and hearing of the demurrer and the motion to dissolve the temporary
injunction, the court overruled the same, and held: That the plaintiff had the legal capacity, as a
citizen and taxpayer, to maintain this action; that the constitutional convention had no powers
conferred upon it, except such powers as are expressly conferred upon it by the enabling act, and
such powers as are incidentally necessary to carry into effect the objects and purposes of such
act; and denied the power of the convention to divide Woods county, and create new counties
thereof, and held that the convention in that respect, acted beyond its express or implied powers;
and further held that the convention had no power to provide for the election of county or
township officers at the time the constitution is submitted to the voters of the proposed state of
Oklahoma for their ratification or rejection.
The defendants thereupon filed a general denial, and the cause was submitted to the court on an
agreed statement of facts practically as above stated, and the court thereupon rendered the
following final judgment in said cause:
"Now on this 8th day of May, 1907, the parties to the above-entitled cause appeared in open
court, by their respective attorneys, and said cause was presented to the court upon the motion of
the defendants to dissolve, vacate and set aside the temporary injunction herein, and upon the
demurrer to the plaintiff's petition.
"Said cause was duly argued and fully presented and by the court taken under advisement until
the 13th day of May, 1907.
'"Thereupon, on the 13th day of May, 1907, the parties all appeared by their respective counsel
as heretofore, and the court, being duly advised in the premises, finds that the said motion to
dissolve the temporary injunction should be overruled, and also that the demurrers presented to
the plaintiff's petition should each be overruled; to each and all of which rulings the defendants
and each of them duly excepted.
"Thereupon, by leave of court, the defendants filed their answer herein and the plaintiff filed and
presented his motion to strike out the second paragraph of said answer, which motion being duly
presented, was by the court overruled; to which the plaintiff excepted.
"Thereupon said cause was duly presented and submitted to the court for final determination and
judgment upon the agreed statement of facts and the evidence offered, and upon such submission
the court, after due consideration, finds all of the issues in favor of the plaintiff and against the
defendants and each of them; to which the defendants and each of them duly excepted.
"It is, therefore, by the court considered, ordered and adjudged that the demurrers of the
defendants and each of them separately be, and the same are hereby overruled; to which the
defendants and each of them duly except.
"It is further considered, ordered and adjudged by the court that the motions of the defendants
and each of them separately, to vacate and set aside the temporary injunction heretofore granted
be, and the same is by the court hereby overruled; to which the defendants and each of them
separately duly except.
"It is further by the court considered, ordered and adjudged that the temporary injunction
heretofore granted herein be and the same is hereby made perpetual, and that the defendants
Frank Frantz, W. H. Murray and John M. Young, be and they are hereby enjoined and restrained
from issuing or publishing any proclamation in or by which said proclamation it is proposed to
submit to the electors of the proposed state of Oklahoma, either as a part of the proposed
constitution for said state of Oklahoma or as a separate ordinance, any clause, provision or
proposition dividing or pretending to divide Woods county, in said Territory of Oklahoma, or
changing or pretending to change the lines and boundaries of said county, or making or
purporting or pretending to make or describe or bound any new county or counties out of any
part of the present territory of the said Woods county, or changing or in anywise interfering with
the said county or the lines thereof or any townships or precincts therein, or any or either of the
lines of the said townships or precincts; and enjoining and restraining the said C. I. Overstreet, C.
H. Chowning, C. M. Delzell, M. R. Mansfield, Charles Bowman, J. C. Major, I. J. Corwin and
Charles B. Powell from in anywise interfering with any of the duties of the county
commissioners or county clerk, or any or either thereof, of the said county of Woods, in or about
the election proposed to be held in said county on the sixth day of August, 1907, and from in
anywise interfering with the duties of the said county commissioners or county clerk of said
county of Woods, as the same is now described and exists, in any of the preparations of any kind
or character for said election, and enjoining and restraining them from acting or attempting to act
in any capacity or to any extent in any election to be held in the pretended counties of Alfalfa or
Major, or either thereof, and that the defendants pay the costs herein, taxed at dollars; to all and
each part of which the defendants and each of them duly except.
"Thereupon the defendants and each of them separately present their motion for a new trial of
said cause; which motion is by the court, after due consideration overruled; to which the
defendants and each of them duly except.
"Thereupon, on application of the defendants and each of them, for good cause shown, the court
extends the time for making and serving case made herein, and the defendants are given ten days
from this date in which to make and serve case made for the supreme court, and the plaintiff is
given three days after service of said case made in which to suggest amendments thereto, said
case made to be settled on two days' notice in writing."
Upon the record defendants bring the case to this court for review of the said judgment.
A certified copy of the election ordinance, as incorporated in the record, is hereby made a part of
this statement of facts, and is as follows, to wit:
"ELECTION ORDINANCE
"An Ordinance providing for an election at which the proposed constitution for the proposed
state of Oklahoma shall be submitted to the people thereof for ratification or rejection, and
submitting separately to the people of the proposed state of Oklahoma the proposed prohibition
article making substantially the terms of the enabling act uniformly applicable to the entire state
for ratification or rejection, and for the election of certain state, district, county and township
officers provided for by said proposed constitution, and for the election of members of the
legislature of said proposed state of Oklahoma, and five representatives to congress.
"BE IT ORDAINED, By the convention assembled to form a constitution and state government
for the proposed state of Oklahoma:
"Section 1, That in compliance with an act of the congress of the United States of America,
entitled, 'An act to enable the People of Oklahoma and of the Indian Territory to form a
Constitution and State Government and be admitted into the Union on an equal footing with the
Original States; and to enable the people of New Mexico and of Arizona to form a Constitution
and State govenment and be admitted into the Union on an equal footing with the Original
States:' approved June 16, 1906, hereinafter mentioned and referred to as the enabling act, and by
virtue thereof, an election is hereby called and shall be held on the sixth day of August, in the
year of our Lord, one thousand nine hundred and seven in all the voting precincts at said time, in
the proposed state of Oklahoma, for the purpose of submitting to the people thereof the question
of the ratification or rejection of the constitution framed and adopted by this convention for said
proposed state of Oklahoma, and for the adoption or rejection of all questions therewith
separately submitted, and at which election the qualified voters of said proposed state shall vote
directly for or against the proposed constitution, and for or against any provisions separately
submitted. Said election shall, in all respects, be held and conducted in the manner required by
the laws of the Territory of Oklahoma for election therein, when not in conflict with the enabling
act, and as supplemented by this ordinance, and the returns of said election shall be made to the
secretary of the Territory of Oklahoma. who, with the chief justice thereof, and the senior judge
of the United States court of appeals for the Indian Territory, shall canvass the same, and if the
majority of the legal votes cast on that question shall be for the constitution, the governor of
Oklahoma Territory and the judge senior in service of the United States court of appeals for the
Indian Territory shall certify the results to the President of the United States, together with the
statement of the votes cast thereon, and upon separate articles or propositions, and a copy of said
constitution articles, propositions and ordinances, and in all respects comply with the provisions
of said enabling act.
"Sec. 2. On the same day of the election for the ratification or rejection of said constitution, there
shall be held by the qualified voters for the proposed state, in accordonce with the election laws
of the Territory of Oklahoma when not in conflict with the enabling act and as supplemented by
this ordinance, an election for officers for a full state government, including all the elective state,
district, county and township officers, provided for by the provisions of said constitution,
members of the legislature and five representatives to congress, and an election is hereby called
for said day and for such purposes. The ballots used in voting for said officers shall be prepared,
printed, furnished and distributed as required by the laws of the Territory of Oklahoma for
elections therein.
The returns of said election shall be made as in this ordinance provided.
"In the counties of Beaver, Blaine, Caddo, Canadian, Cleveland, Custer, Comanche, Dewey,
Garfield, Grant, Greer, Kay, Kingfisher, Kiowa, Lincoln, Logan, Noble, Oklahoma, Pawnee,
Payne, Pottawatomie, Roger Mills, Washita, Woods, and Woodward, as defined and described in
said constitution, said elections shall be held and conducted by the local authorities in their
respective counties and voting precincts, in the same manner as now required by the laws of the
Territory of Oklahoma for elections therein.
"In the counties of Beaver, Caddo, Comanche, Greer, Payne, Roger Mills and Woodward the
local authorities in said respective counties, and the voting precincts therein, shall exercise their
functions and perform their duties as such election officers only within the limits of said counties
as defined and described in the constitution.
"In the county of Noble, the local authorities, in the exercise of their functions and the
performance of their duties as election officers, shall exercise and extend the same to the limits
of said county as defined by the constitution.
"Sec. 3. In the counties of Adair, Alfalfa, Atoka, Beckham, Bryan, Carter, Cherokee, Choctaw,
Cimmarron, Coal, Craig, Creek, Delaware, Ellis, Garver, Grady, Harper, Hughes, Haskell,
Jackson, Jefferson, Johnston, Latimer, Le-Flore, Love, Major, Murray, Muskogee, Mayes,
Marshall, McClain, McCurtain, McIntosh, Nowata, Okfuskee, Okmulgee, Osage, Ottawa,
Pittsburg, Pontotoc, Pushmataha, Rogers, Seminole, Sequoyah, Stephens, Texas, Tillman, Tulsa,
Wagoner, and Washington, the local officers and authorities provided for in this ordinance, shall
exercise all the functions and perform all the duties within the limits of such counties, townships
and voting precincts in the same manner as is now required by the laws of the Territory of
Oklahoma for elections therein.
"Sec. 4. That the counties hereinafter named be and they are hereby divided into the following
described and numbered commissioners' districts and the following described and numbered or
named municipal townships:
"Sec. 5. Any board of county commissioners or a majority of such board, shall have the power at
any time prior to the first day of June, Anno Domini, nineteen hundred and seven, to change the
boundaries of any municipal township or commissioners district, fixed by the ordinance, and it is
especially provided that the boundaries of such township and commissioner's district, after
August 6th, nineteen hundred and seven, may be changed in the manner as provided by the laws
of the Territory of Oklahoma for the changing of such boundaries: Provided, such changes of
boundary lines as to municipal townships and commissioner's districts, if made prior to June 1st,
A. D. nineteen hundred and seven, (and no change as to boundaries whatever shall be make
during the time intervening between the first day of June, A. D. nineteen hundred and seven and
the sixth day of August, A. D. nineteen hundred and seven) shall not operate to change any
polling places or to destroy any voting precinct.
"Sec. 6. In each of the counties of Greer, Beaver, Woods, Woodward, and Comanche, (And any
other county in the proposed state similarly situated) as defined and described in this
constitution, on or before the sixth day of June, A. D. nineteen hundred and seven, the acting
board of county commissioners therein or a majority thereof, shall subdivide such county or
counties into commissioners districts and townships, and fix election precincts, designate polling
places, necessary for the purpose of the election herein provided for. And should such
commissioners fail to comply with the provisions of this section by said date, Wm. H. Murray, as
president of this convention, shall within five days thereafter, appoint three qualified electors in
each of such counties not more than two of whom shall belong to any one political party, to
divide such county or counties into commissioners districts and townships, and fix election
precincts, and designate polling places for such purpose.
"Sec. 7. Said county commissioners shall on or before the eighth day of June, A. D. nineteen
hundred and seven, divide or designate the townships of their respective counties into election
precincts and establish the boundaries of the same, and shall designate a polling place in each
precinct, and appoint all necessary inspectors of election in the several precincts, whose duties
shall be the same as inspectors of election under the laws of the Territory of Oklahoma, and shall
also perform all other duties required to be done or performed by the boards of county
commissioners pertaining to elections under the laws of the Territory of Oklahoma for elections
therein, and shall perform all the duties or acts necessary to the conduct of said board.
"Sec. 8. That the election laws of the Territory of Oklahoma now in force, as far as applicable
and not in conflict with the enabling act, including the penal laws of said territory relating to
election and illegal voting, are hereby extended and put in force throughout the proposed state of
Oklahoma until the legislature of said proposed state shall otherwise provide, and until all
persons offending against said laws in the elections aforesaid, shall have been dealt with in the
manner therein provided, and the courts of said state shall have power to enforce said laws in the
same manner as other criminal laws of said state.
"Sec. 9. On the Friday following the election provided for in this ordinance, the county clerk and
the commissioners of each county of said proposed state, or a majority of said commissioners,
shall meet at the office of said clerk at ten o'clock A. M. of said day, and shall proceed to canvass
the several returns which have been made to that office and determine the persons who have
received the greatest number of votes in the county or the several county, township, district and
state officers, members of the legislature and representatives to congress, and such findings shall
be reduced to writing and signed by said commissioners and attested by the clerk and shall be
annexed to the abstract given for such officers. If any two or more persons have an equal number
of votes for the same office and a higher number than any other person, the commissioners
aforesaid shall proceed to determine by lot which of the two candidates shall be elected. As soon
as the commissioners have determined the person who has received the highest number of votes
for any office, the county clerk shall make out abstracts of the votes in the following manner:
First, the abstract of the votes for state and district officers and members of the legislature on one
sheet; Second, the abstract of votes for representative to congress, on one sheet; and third, the
abstract of votes for county and township officers on one sheet; and fourth an abstract of the
votes cast for or against the proposed constitution and for or against articles separately
submitted, which abstracts being certified and signed by the county clerk shall be deposited in
his office and certified copies of abstracts for state and district officers, members of the
legislature and representatives to congress, shall be placed in separate envelopes, endorsed and
directed to the secretary of the Territory of Oklahoma and forwarded immediately by mail. The
failure of the clerk to affix his seal to any such certificate shall not invalidate the returns. And
said commissioners of each county in said proposed state or a majority thereof shall, at said time
and place, also proceed to canvass the returns which have been made to the office of the bounty
clerk of the election held to ratify or reject the constitution or any provision separately submitted,
and reduce the result of said canvass to writing, which shall be signed by the said commissioners
and attested by the clerk, and the clerk shall make an abstract of the votes cast for or against the
ratification of the said proposed constitution, on one sheet and for or against any provision
separately submitted, on one sheet which abstract being signed and certified by the county clerk
shall be deposited in his office and certified copies thereof, under his official seal, shall be placed
in a separate envelope, endorsed and directed to the secretary of Oklahoma, and forwarded
immediately by mail.
"The said county clerk shall immediately make out in pursuance of the determination of the said
county commissioners, a certificate of election for any person receiving the highest number of
votes for any office or in case of a tie who have been decided by lot, to have been elected and
deliver the same to the person entitled thereto upon his making application therefor.
"The Governor of the Territory of Oklahoma, the secretary, the auditor, treasurer and attorney
general of said territory, or any three of them shall constitute the state canvassing board for the
proposed state of Oklahoma. The secretary of the Territory of Oklahoma upon the receipt of the
certified abstracts of the votes given in the several counties, directed to be sent to him, shall
proceed to open the same and shall record the same in a suitable book to be kept for that purpose,
and shall file and carefully preserve them in his office together with the original envelopes in
which they were enclosed. If from any county no such abstract of votes shall have been received
within ten days after the election aforesaid by the secretary of the Territory of Oklahoma, he
shall dispatch a special messenger to obtain a copy of same from the county clerk of such county,
and such clerk shall immediately on demand of said messenger make out and deliver to him the
copy required, which copy of the abstract of votes aforesaid, the messenger shall deliver to the
secretary of the Territory of Oklahoma without delay; the expense of said messenger to be paid
by the county clerk failing to make such return.
"For the purpose of canvassing the result of the election the state board of canvassers for the
proposed state of Oklahoma shall meet at the office of the secretary of the Territory of
Oklahoma, within thirty days after said election, where they shall open the certified abstracts on
file in the office of the secretary of the Territory of Oklahoma and proceed to examine and make
statements of the whole number of votes given or cast at said election for state and district
officers and members of the legislature and representatives to Congress which statement shall
show the names of the persons to whom such votes shall have been given for each of the said
officers and the whole number given to each distinguishing the several districts and counties in
which they are given. They shall certify said statements to be correct and shall subscribe their
names thereto and shall determine what persons shall have been by the greatest number of votes
duly elected to such offices, and shall endorse and subscribe on each statement a certificate of
election and determination and deliver the same to the secretary of the Territory of Oklahoma.
"If any two or more persons have an equal number of votes for members of the legislature or
representatives to congress or for any state or district office the said canvassing board shall
proceed to determine by lot, in the presence of the candidates, which of the two candidates shall
be elected. Reasonable notice shall be given to said candidate of the time when such elections
shall be determined, and if such candidates, or either of them, fail to appear, in accordance with
such notice, then the board of canvassers shall proceed to determine such election in the absence
of the candidates.
"The secretary of the Territory of Oklahoma shall record in his office in a book to be kept by him
for that purpose each certified statement of determination as made by such board of canvassers,
and shall without delay make out and transmit to each of the persons thereby declared to be
elected, a certificate of his election certified by him under his seal of office, and he shall also
forthwith cause a copy of such certified statement of determination to be published in a
newspaper published at the capital.
"Sec. 10. The secretary and the chief justice of the Territory of Oklahoma, and the senior judge
of the United State court of appeals for the Indian Territory shall within thirty days after the
election herein provided for, canvass the returns of said election to ratify or reject the
constitution or any provision separately submitted.
"Sec. 11. The canvass and returns of said election for the ratification or rejection of the
constitution, and propositions submitted, and for all officers authorized by the constitution,
except as otherwise provided in the enabling act and the supplementary provisions of this
ordinance shall be made in accordance with the election laws of the Territory of Oklahoma.
"Sec. 12. Whenever a vacancy occurs in the office of county commissioner provided for by this
ordinance such vacancy shall be filled by appointment by the governor of the Territory of
Oklahoma within three days from the date that he is notified of such vacancy, such notice is to be
given by the county clerk, and where the governor fails to fill such vacancy within said time, said
vacancy shall be filled by appointment by Wm. H. Murray as president of the constitutional
convention: Provided, however, that if the vacancy is caused by death or resignation, the person
appointed to fill the vacancy shall be appointed from the same political party to which such
officer belonged, and he shall serve as if he had been originally named by this ordinance.
"Sec. 13. Wherever a vacancy occurs in the office of county clerk, provided for in this ordinance,
such vacancy shall be filled by appointment by the board of county commissioners, and where
such board of commissioners fail or refuse for three days, to fill such vacancy, the same shall be
filled by appointment by Wm. H. Murray as president of the constitutional convention: Provided,
however, if the vacancy is cause by death or resignation, the person appointed to fill the vacancy
shall be appointed from the same political party to which such officer belonged, and he shall
serve as if he had been originally named by this ordinance.
"Sec. 14. All officers appointed and provided for in this ordinance shall, before entering upon the
discharge of their duties, take an oath or affirmation to support the constitution and the laws of
the United States, the terms of the enabling act, and of this ordinance, and to well and faithfully
discharge the duties of their respective offices, and all inspectors, judges and clerks of said
election shall take an oath or affirmation in conformity with and as required by the election laws
of the Territory of Oklahoma.
"Sec. 15. The governor of the Territory of Oklahoma and two qualified electors by him
appointed one from each of the two political parties that cast the largest number of votes in said
proposed state in the election of delegates to the constitutional convention, shall constitute a
board of election commissioners for the purpose of the election herein provided for. Such
appointments shall be made at least thirty days previous to said elections, and if prior to that time
the chairman of the central committee of the proposed state, of either of such parties, shall
nominate in writing a member of his own party for said appointment, the Governor of the
territory shall appoint such nominee. In case of the death, disability or refusal to serve of either
appointee, the governor of the territory shall notify the chairman of the central committee of such
appointee's political party, and such chairman may, within three days thereafter, recommend a
successor, who shall thereupon be appointed: Provided, that if such chairman shall fail to make
recommendations of appointment within the time specified, the governor of the Territory of
Oklahoma shall make such appointments of his own selection from such political party.
"It shall be the duty of said board to prepare and distribute the ballots, stamps and election
supplies for the election of all officers for whom the qualified electors of the proposed state are
entitled to vote, for representatives to congress, and all members of the legislature, and all
officers provided by the constitution for whom the voters of more than one county are entitled to
vote, in compliance with the provisions of said constitution and of the election laws of the
Territory of Oklahoma. Said board shall also prepare and distribute ballots, stamps and election
supplies for the election for the ratification or rejection of the proposed constitution and for or
against any provisions separately submitted. The said board shall perform and exercise such
other duties as may be prescribed by the election laws of the Territory of Oklahoma and by this
ordinance.
"In event that the governor of the Territory of Oklahoma shall fail or refuse to act or perform the
duties aforesaid, such duties shall be exercised and performed by Wm. H. Murray as president of
the convention.
"Sec. 16. In each county in the proposed state, the county clerk and two persons by him
appointed, one from each of the two political parties that cast the largest number of votes in said
proposed state at the election of delegates to the constitutional convention, shall constitute the
county board of election commissioners. Said appointments shall be made in all respects as the
appointments for the board of election commissioners hereinbefore provided for or required to be
made by the governor of the Territory of Oklahoma, except that the privilege of nomination shall
belong to the chairman of the county central committee of the two parties aforesaid.
"It shall be the duty of such board to prepare and distribute the ballots and election supplies for
all officers to be voted for in such counties or who are to be voted for other than those who are to
be voted for by all the electors of the proposed state, and members of the legislature and district
officers as hereinbefore provided in compliance with the provisions of this ordinance, and said
board shall perform such other duties as provided for by the election laws of the Territory of
Oklahoma, and by this ordinance.
"In the event any county clerk shall fail or refuse to perform or discharge any of the duties
aforesaid, or be disqualified, the county commissioners shall appoint some one to act as county
clerk in the performance of such duties.
"Sec. 17. In the event any of the county commissioners in any county of the proposed state shall
fail or refuse or be disqualified to perform any of the duties required by this ordinance or the
election laws of the Territory of Oklahoma the governor of the territory shall appoint some one
in his stead: Provided, that such appointment shall be made form the same political party as that
to which such commissioner belonged.
"In the event the governor of the Territory of Oklahoma shall fail or refuse to make due action
thereon, and to make such appointment within three days after he shall be notified of such failure
or refusal or disqualification or disability, on the part of such commissioner, such appointment
shall be made by Wm. H. Murray as president of this convention.
"Sec. 18. Nominations for all state, district, county and township offices may be made as
provided for under the primary election laws of the Territory of Oklahoma, and said election
laws, in connection with election laws of the Territory of Oklahoma, be and are as aforesaid
hereby put in force and effect throughout the proposed state of Oklahoma: Provided, that in cities
and towns of the Indian Territory and the Osage Indian Reservation having a population of
twenty-five hundred inhabitants or more as shown by any official census taken either under the
auspices of the United States government or such municipal corporations, the qualified electors
therein shall register up to the 18th day of May, A.D., 1907, in order to be entitled to vote therein
at any primary election held on or after the 23rd day of May, A.D. 1907, and prior to August
sixth A.D. 1907, And Provided Further, that any person having registered at the election of
delegates to the constitutional convention, or any municipal election during 1907, shall not be
required to further register in order to vote at such primary election or elections; And Provided
Further, that any person who shall be prevented from registering by reason of sickness or
necessary absence from such city or town, which fact may be shown as provided by the laws of
Oklahoma Territory, or shall be prevented by the clerk or recorder of such city or town failing or
refusing to register then such elector shall be allowed to vote at such election.
"Sec. 19. The submission of the proposed constitution for the proposed state of Oklahoma, and
the separate provision, to the people of said proposed state, for ratification or rejection, shall be
upon the same ballot in the following form:
"SHALL THE CONSTITUTION FOR THE PROPOSED STATE OF
OKLAHOMA BE RATIFIED?
"[] YES.
"[] NO.
"SHALL THE PROVISION FORSTATE-WIDE PROHIBITION BE
ADOPTED?
"[] YES.
"[] No.
"And ballots used in voting for or against the proposed constitution, and for or against any
provisions separately submitted shall contain no other matters to be voted on at such election and
shall be prepared, printed, furnished and distributed by the board of election commissioners for
the proposed state as required by the laws of the Territory of Oklahoma for elections therein, not
in conflict with the provisions of the enabling act and as supplemented by this ordinance and
shall when voted be deposited in ballot boxes separate from any others used at said election. Said
election shall in all respects be held and conducted in the manner required by the laws of the
Territory of Oklahoma for elections therein when not in conflict with the provisions of the
enabling act, and as supplemented by the provisions of this ordinance, and the returns thereof
shall be made as provided by said enabling act as hereinbefore set out.
"Sec. 20. There shall be submitted separately and in the manner herein provided, the separate
provision adopted by this convention and referred to as a separate provision for state-wide
prohibition, at the same time and on the same ballot, at which said proposed constitution is to be
submitted for ratification or rejection, said proposition being as to whether or not the
manufacture, sale, barter, giving away or otherwise furnishing intoxicating liquors shall be
prohibited in the proposed state for a period of twenty-one years from the date of its admission
into the Union, and thereafter until the people of the state shall otherwise provide by amendment
of said constitution and proper state legislation, said provision being in words and figures as
follows, to wit:
"The manufacture, sale, barter, giving away, or otherwise furnishing, except as hereinafter
provided, of intoxicating liquors within this state, or any part thereof, is prohibited for a period of
twenty-one years from the date of the admission of this state into the Union, and thereafter until
the people of the state shall otherwise provide by amendment of this constitution and proper state
legislation. Any person, individual or corporate, who shall manufacture, sell, barter, give away,
or otherwise furnish any intoxicating liquor of any kind, including beer, ale and wine, contrary to
the provisions of this section, or who shall, within this state, advertise for sale or solicit the
purchase of any such liquors, or who shall ship or in any way convey such liquors from one
place within this state to another place therein, except the conveyance of a lawful purchase as
herein authorized, shall be punished, on conviction thereof, by fine not less than fifty dollars and
by imprisonment not less than thirty days of each offense: Provided, that the legislature may
provide by law for one agency under the supervision of the state in each incorporated town of not
less than two thousand population in this state; and if there be no incorporated town of two
thousand population in any county in this state, such county shall be entitled to have one such
agency, for the sale of such liquors for medicinal purposes; and for the sale, for industrial
purposes, of alcohol which shall have been denaturized by some process approved by the United
States commissioner of internal revenue; and for the sale of alcohol for scientific purposes to
such scientific institutions, universities, and colleges as are authorized to procure the same free
of tax under the laws of the United States; and for the sale of such liquors to any apothecary who
shall have executed an approved bond, in a sum not less than one thousand dollars, conditioned
that none of such liquors shall be used or disposed of for any purpose other than in the
compounding of prescriptions or other medicines, the sale of which would not subject him to the
payment of a special tax required of liquor dealers by the United States, and the payment of such
special tax by any person within this state shall constitute prima facie evidence of his intention to
violate the provisions of this section. No sale shall be made except upon the sworn statement of
the applicant in writting setting forth the purpose for which the liquor is to be used, and no sale
shall be made for medicinal purposes except sales to apothecaries as hereinabove provided
unless such statement shall be accompanied by a bona fide prescription signed by a regular
practicing physician, which prescription shall not be filled more than once. Each sale shall be
duly registered, and the register thereof, together with the affidavits and prescriptions pertaining
thereto shall be open to inspection by any officer or citizen of the state at all times during
business hours. Any person who shall knowingly make a false affidavit for the purpose aforesaid
shall be deemed guilty of perjury. Any physician who shall prescribe any such liquor, except for
treatment of disease which after his own personal diagnosis he shall deem to require such
treatment, shall, upon conviction thereof, be punished for each offense by fine of not less than
two hundred dollars or by imprisonment for not less than thirty days, or by both such fine and
imprisonment; and any person connected with any such agency who shall be convicted of
making any sale or other disposition of liquor contrary to these provisions shall be punished by
imprisonment of not less than one year and one day. Upon the admission of this state into the
Union these provisions shall be immediately enforceable in the courts of this state: Provided, that
there shall be submitted separately at the same election at which this constitution is submitted for
ratification or rejection, and on the same ballot, the foregoing provision, entitled 'Prohibition,' on
which ballot shall be printed:
"SHALL THE PROVISION FOR STATE-WIDE PROHIBITION BE
ADOPTED?
"[] Yes.
"[] No.
"And, Provided further, that if a majority of the votes cast for and against state-wide prohibition
are for statewide prohibition, then said provision entitled 'Prohibition,' shall be and form a part of
this constitution and be in full force and effect as such as provided therein; but if a majority of
said votes shall be against state wide prohibition, then the provisions of said article shall not
form a part of this constitution, and shall be null and void. If a majority of the votes cast for or
against said provision are for state wide prohibition, then said provision entitled 'Prohibition'
shall be and form a part of the proposed constitution.
"Sec. 21. It shall be the duty of the governor of the Territory of Oklahoma, as such, within
twenty days after the date of the adoption of this ordinance, to issue his proclamation giving
public notice of the elections herein provided for, and to cause said proclamation to be published
for a period of sixty days in some daily newspaper of general circulation within the proposed
state of Oklahoma, and in the event of the failure or refusal or disqualification on the part of such
governor to act, such proclamation shall be issued and publication caused to be made by Wm. H.
Murray as president of this convention, and if he shall fail or refuse or be disqualified from
issuing such proclamation, the same shall be issued and caused to be published as aforesaid by
John M. Young as secretary of this convention.
"Sec. 22, That the provisions of this ordinance shall apply to the elections to be held and to the
officers to be elected on the 6th day of August in the year of our Lord, one thousand nine
hundred and seven.
"Sec. 23. In the event the governor of the Territory of Oklahoma should fail or refuse to act as
herein provided, and to appoint two qualified electors from each of the political parties that cast
the largest number of votes in said proposed state in the election of delegates to the constitutional
convention, to constitute a board of election commissioners for the purposes of the elections
herein provided for or perform any other duties imposed by law or this ordinance upon him with
respect to said elections, such duty shall be performed by Wm. H. Murray as president of this
convention in the same manner as would devolve upon the governor, and with the same powers
as if he were then and there governor of the Territory of Oklahoma, and in the event said Wm. H.
Murray, as president, should fail or refuse to perform such acts and duties as aforesaid such acts
and duties shall be performed by John M. Young as secretary of this convention in the same
manner and with the same powers as if he were then and there the governor of said territory.
"Sec. 24. In the event there should be any county or counties in said proposed state as defined
and described in the constitution, where the same shall not have been divided into commissioner
districts by July 6th, 1907, the commissioners for such county shall at said election be elected
therefrom at large.
"Sec. 25. No voting precinct in this state shall be established so that it shall be divided by the
boundary line of any municipal township, commissioner's district, county or congressional
district.
"Sec. 26. Within ten days after the adoption of this ordinance or as soon thereafter as practicable,
the county clerk and the county commissioners appointed herein shall meet at the county seat of
their respective counties and subscribe the oath required by this ordinance and execute bond for
the faithful performance of their duties in the penal sum of one thousand ($ 1,000) dollars, which
bond may be approved by any delegate to the constitutional convention residing in the county or
by Wm. H. Murray, as president of this convention.
"Thereupon the board of county commissioners of each of said counties shall procure a suitable
book in which the oath and bond aforesaid and all the proceedings shall be entered.
"I hereby certify that the above and foregoing passed after third reading upon roll call, this 22nd
day of April, at 4:32 o'clock p. m., Anno Domini, 1907.
"WM. H. MURRAY.
"President of the Constitutional Convention.
"ATTEST "JOHN McLAIN YOUNG.
"Secretary of the Constitutional Convention."

Error from the District Court of Woods County; before John L. Pancoast, Trial Judge.

W. A. Ledbetter Dale & Bierer and J. F. King, for plaintiffs in error.

W. W. S. Snoddy, and H. A. Noah, for defendant in error;
Horace Speed, of counsel.

HAINER, J.:

¶1 In compliance with the power granted in the enabling act, the people of Oklahoma and Indian
Territory elected one hundred and twelve delegates, fifty-seven of whom were elected from the
Territory of Oklahoma, and fifty-five of whom were elected from the Indian Territory. These
delegates were invested with the power and charged with the duty and responsibility of forming
a constitution and state government for the proposed state of Oklahoma.

¶2 THE FUNDAMENTAL RIGHTS AND POWERS OF THE CONVENTION.

¶3 The first question for our consideration is: What is a constitutional convention, and what is
the nature of its fundamental rights and powers?

¶4 It was contended by the plaintiff in the court below, defendant in error here, that the power
and authority of the constitutional convention is derived solely from the powers granted in the
enabling act, and that every power granted to the convention must be found and expressed
therein, except such implied powers as may be necessary to carry into effect the express grant of
power; that the power granted by the enabling act embraces no legislative grant: but confers only
the power of a committee to adopt and propose fundamental propositions which upon ratification
may become the fundamental law of the state and this was the view of the trial court; and it is
earnestly urged in this court by counsel for defendant in error as the true doctrine. In our opinion,
this contention is clearly untenable, and cannot be sustained by the authorities.

¶5 In a territory the source of all power is congress. But in the formation of a constitution and
state government the power emanates from the people. The delegates to the convention were not
the agents or representatives of congress, but they were the immediate agents and representatives
of the people of the two territories. They derived their power and authority from the people in
their sovereign capacity. And this is in harmony with the principles of the Declaration of
Independence, which declares that "Governments are instituted among men, deriving their just
powers from the consent of the governed," and is in keeping with the doctrine announced by
Lincoln when he uttered the immortal words, that this is "A government of the people, by the
people, and for the people."

¶6 In Benner v. Porter, 9 How. 235, 13 L. Ed. 119, the supreme court of the United States, in
speaking of the source of power, with reference to the admission of the Territory of Florida, said:

"The convention being the foundation of all political power, from which flowed that which was
embodied in the organic law, were, of course, competent to prescribe the laws and appoint the
officers under the constitution, by means whereof the government could be put into immediate
operation."

¶7 The convention, therefore, was created by the direct action of the people, and in the discharge
of its powers, duties, and obligations, it performs one of the highest and most important acts of
popular sovereignty. Nor is the contention well founded that the convention possesses no
legislative powers, and that it acts in the mere capacity of a committee to adopt and propose
fundamental propositions which are to be submitted to a vote of the people for ratification or
rejection. The convention has and can exercise plenary powers subject to the limitations: (1) That
the constitution shall be republican in form: (2) That it shall not be repugnant to the constitution
of the United States and the principles of the Declaration of Independence: (3) That no
distinction shall be made on account or race or color: and (4) That the convention shall accept by
ordinance irrevocable all the terms and conditions of the enabling act.

¶8 It is true that congress has the power to impose conditions upon a territory, as a condition
precedent to entitle it to admission as a state. Accordingly, congress placed certain restrictions
and limitations upon the convention, which it was required to incorporate into the constitution,
and to be ratified by the people. These limitations and restrictions, when ratified by the people,
become a part of the fundamental law of the state. When, therefore, congress authorized the
people of Oklahoma and Indian Territory to form a constitution and state government and be
admitted into the Union on an equal footing with the original states, it meant that it should be
admitted on equal terms with the original states. Hence, the enabling act was not a limited or
restricted grant, but it was an absolute grant, subject to the constitution of the United States, and
the limitations and restrictions imposed in the enabling act as a condition precedent to such
admission.

¶9 In Permoli v. First Municipality, 3 How. 589, the supreme court of the United States had
before it the construction of the act of congress of February 20, 1811, authorizing the people of
the Territory of Orleans to form a constitution and state government, and in the course of the
opinion the court said:

"By the act of April 8, 1812, Louisiana was admitted according to the mode prescribed by the act
of 1811. Congress declared it should be on the conditions and terms contained in the 3rd section
of that act, which should be considered, deemed and taken, as fundamental conditions and terms
upon which the state was incorporated in the union.

"All congress intended, was to declare in advance to the people of the territory, the fundamental
principles their constitution should contain, this was in every way proper under the
circumstances; the instrument having been duly formed, and presented, it was for the national
legislature to judge whether it contained the proper principles, and to accept it if it did or reject it
if it did not. Having accepted the constitution and admitted the states, 'On an equal footing with
the original states in all respects whatever,' in express terms, by the act of 1812, congress was
concluded from assuming that the instructions contained in the act of 1811 had not been
complied with. No fundamental principles could be added by way of amendment, as this would
have been making part of the state constitution; if congress could make it in part, it might, in the
form of amendment, make it entire."

¶10 In Escanaba Co. v. Chicago, 107 U.S. 678, 27 L. Ed. 442, 2 S. Ct. 185, the supreme court of
the United States, speaking by Mr. Justice Field, said:

"Although the act of April 18, 1818, c. 67, enabling the people of Illinois Territory to form a
constitution and state government, and the resolution of congress of Dec. 3, 1818, declaring the
admission of the state in the Union, refer to the principles of the ordinance according to which
the constitution was to be formed, its provisions could not control the authority and powers of
the state after her admission. Whatever the limitations upon her powers as a government whilst
in a territorial condition, whether from the ordinance of 1787 or the legislation of congress, it
ceased to have any operative force, except as voluntarily adopted by her, after she became a state
of the Union. On her admission she at once became entitled to and possessed of all the rights of
dominion and sovereignty which belonged to the original states. She was admitted, and could be
admitted, only on the same footing with them."

¶11 In Ward v. Race Horse, 163 U.S. 504, 41 L. Ed. 244, 16 S. Ct. 1076, which involved the
interpretation of a provision of the enabling act of Wyoming, Mr. Justice White, after reviewing
the authorities, said:
"The enabling act declares that the state of Wyoming is admitted on equal terms with the other
states, and this declaration which is simply an expression of the general rule, which presupposes
that states, when admitted into the Union, are endowed with powers and attributes equal in scope
to those enjoyed by the states already admitted, repels any presumption that in this particular
case congress intended to admit the state of Wyoming with diminished governmental authority."

¶12 From these decisions it will be observed that all congress intended was to declare to the
people of Oklahoma and Indian Territory the fundamental principles which should be
incorporated in the proposed constitution, and when the constitution is formed and a full state
government provided, it should be submitted to the people for ratification or rejection, and when
approved by the people it is to be submitted to the President of the United States, who is charged
by congress with the duty to determine whether the constitution is republican in form, whether it
is repugnant to the constitution of the United States and the principles of the Declaration of
Independence, and whether the terms and conditions imposed in the enabling act have been
complied with.

¶13 Judge Story, in his work on the Constitution, vol. 1 (5 ed.), section 338, declares:

"The true view to be taken of our state constitutions is that they are forms of government
ordained and established by the people in their original sovereign capacity to promote their own
happiness and permanently to secure their rights, property, independence, and common welfare."

¶14 Judge Cooley, in his work on Constitutional Limitations, an page 68, in discussing the
attributes and objects of a constitution, says:

"In considering state constitutions we must not commit the mistake of supposing that, because
individual rights are guarded and protected by them, they must also be considered as owing their
origin to them. These instruments measure the powers of the rulers, but they do not measure the
rights of the governed. What is a constitution, and what are its objects? It is easier to tell what it
is not, than what it is. It is not the beginning of a community, nor the origin of private rights; it is
not the fountain of law, nor the incipient state of government; it is not the cause but consequence,
of personal and political freedom; it grants no rights to the people, but is the creature of their
power, the instrument of their convenience."

¶15 In 1894 the state of New York had under consideration the revision of its state constitution.
One of the first questions that arose in the convention was the ascertainment of the rights and
powers of the convention to pass upon the election and qualifications of one of its members. This
question was referred to the judiciary committee, of which committee the Honorable Elihu Root,
now secretary of state, and one of the ablest lawyers and statesmen of this country, was
chairman. In his report to the convention, he says:

"The convention has been created by the direct action of the people and has been by them vested
with the power and charged with the duty to revise and amend the organic law of the state.
"The function with which it is thus charged is a part of the highest and most solemn act of
popular sovereignty and in its performance the convention has and can have no superior but the
people themselves.

"No court or legislature or executive officer has authority to interfere with the exercise of the
powers or the performance of the duties which the people have enjoined upon this, their
immediate agent."

¶16 And, again, in stating the nature of a constitutional convention, he says:

"A constitutional convention is a legislative body of the highest order. It proceeds by legislative
methods. Its acts are legislative acts. Its function is not to execute or interpret laws, but to make
them. That the consent of the general body of electors may be necessary to give effect to the
ordinances of the convention no more changes their legislative character than the requirement of
the governor's consent changes the nature of the action of the senate and assembly."

¶17 And, again, in speaking of the importance of the independence of the convention, he uses
this language:

"It is far more important that a constitutional convention should possess these safeguards of its
independence than it is for an ordinary legislature; because the convention acts are of a more
momentous and lasting consequence and because it has to pass upon the power, emoluments and
the very existence of the judicial and legislative officers who might otherwise interfere with it.
The convention furnishes the only way by which the people can exercise their will, in respect of
these officers, and their control over the convention would be wholly incompatible with the free
exercise of that will." Proceedings of the New York Constitutional Constitution, 1894, pages 79-
80.

¶18 Mr. Bryce, in his excellent work on the American Commonwealth, vol. 1, page 436, says:

"A state constitution is really nothing but a law made directly by the people voting at the polls
upon a draft submitted to them. The people of a state when they so vote act as a primary and
constituent assembly, just as if they were all summoned to meet in one place like the folk-notes
of our Teutonic forefathers, it is only their numbers that prevents them from so meeting in one
place, and oblige the vote to be taken in a variety of polling places. Hence the enactment of a
constitution is an exercise of direct popular sovereignty to which we find few parallels in modern
Europe, though it was familiar enough to the republic of antiquity and has lasted until now in
some of the cantons of Switzerland."

¶19 In Goodrich v. Moore, 2 Minn. 61, the supreme court of Minnesota declared that a
constitutional convention is the highest legislative assembly recognized in law, invested with the
power of enacting or framing the supreme law of the state, and in the course of the opinion, Mr.
Justice Atwater, speaking for the court, said:

"But even had the legislature intended and attempted to claim and exercise the act of providing a
printer for the constitutional convention, it would have been an unauthorized and unwarrantable
interference with the rights of that body. The admission of such a right in the legislature would
place the convention under its entire control, leaving it without authority even to appoint or elect
its own officers, or adopt measures for the transaction of its legitimate business. It would have
less power than a town meeting, and be incompetent to perform the objects for which it
convened. It would be absurd to suppose a constitutional convention had only such limited
authority. It is the highest legislative assembly recognized in law, invested with the right of
enacting or framing the supreme law of the state. It must have plenary power for this and over all
the incidents thereof. The fact that the convention assembled by authority of the legislature
renders it in no respect inferior thereto.

¶20 In Sproule v. Fredericks, 11 So. 472, the supreme court of Mississippi, in discussing the
powers of the convention says:

"It is the highest legislative body known to freemen in a representative government. It is supreme
in its sphere. It wields the powers of sovereignty, specially delegated to it, for the purpose and
the occasion, by the whole electoral body, for the good of the whole commonwealth. The sole
limitation upon its powers is that no change in the form of government shall be done or
attempted. The spirit of republicanism must breathe through every part of the framework, but the
particular fashioning of the parts of this framework is confided to the wisdom, the faithfulness,
and the patriotism of this great convocation, representing the people in their sovereignty. The
theorizing of the political essayist and the legal doctrinaire, by which it is sought to be
established that the expression of the will of the legislature shall fetter and control the
constitution-making body, or, in the absence of such attempted legislative direction, which seeks
to teach that the constitutional convention can only prepare the frame of a constitution and
recommend it to the people for adoption, will be found to degrade this sovereign body below the
level of the lowest tribunal clothed with ordinary legislative powers."

¶21 In Loomis v. Jackson, 6 W. Va. 613, in discussing the powers of the constitutional
convention, Judge Woods, speaking for the court, on page 708 of the opinion, said:

"I have had no difficulty in reaching the following conclusions upon the constitutional questions
presented in this specification, viz:

"First, that a constitutional convention lawfully convened does not derive its powers from the
legislature, but from the people:

"Second, that the powers of a constitutional convention are in the nature of sovereign powers:

"Third, that the legislature can neither limit or restrict them in the exercise of these powers."

¶22 In the recent case of Montana ex rel. Haire v. Rice, 204 U.S. 291, 51 L. Ed. 490, 27 S. Ct.
281, which came up on appeal from the decision of the supreme court of Montana, it was held
that:

"In granting lands for educational purposes to Montana, sec. 17, of the enabling act of February
22, 1889, 25 Star. 676, to be held, appropriated, etc., in such manner as the legislature of the state
should provide, congress intended to designate, and the act will be so construed, such legislature
as should be established by the constitution to be adopted, and which should act as a
parliamentary body in subordination to that constitution; and it did not give the management and
disposal of such lands to the legislature or its members independently of the methods and
limitations prescribed by the constitution of the state."

¶23 The facts in this case were substantially as follows: By section 17 of the enabling act for
Montana grants were made to the state in the following terms:

"To the state of Montana: For the establishment and maintenance of a school of mines, one
hundred thousand acres; for state normal school, one hundred thousand acres; for agricultural
colleges, in addition to the grant hereinbefore made for that purpose, fifty thousand acres; for the
establishment of a state reform school, fifty thousand acres; for the establishment of a deaf and
dumb asylum, fifty thousand acres; for public buildings at the capital of the state, in addition to
the grant hereinbefore made for the purpose, one hundred and fifty thousand acres.

"* * * And the lands granted by this section shall be held, appropriated and disposed of
exclusively for the purposes herein mentioned, in such manner as the legislatures of the
respective states may severally provide."

¶24 The constitutional convention of Montana adopted an ordinance designated as "Ordinance

No. 1" entitled "Federal Relations," which ordained that "The state hereby accepts the several
grants of land from the United States to the state of Montana, * * * upon the terms and
conditions therein provided." An act of the legislative assembly of the state of Montana,
approved February 2, 1905, authorized and directed the state board of land commissioners to
sign and issue interest-bearing bonds to the amount of $ 75,000, for the principal and interest of
which the state of Montana should not be liable, and directed the state treasurer to sell the bonds.
Section 7 directed that:

"The moneys derived from the sale of said bonds shall be used to erect, furnish and equip an
addition to the present state normal school building at Dillon, Montana, and shall be paid out for
such purpose by the state treasurer upon vouchers approved by the executive board of the state
normal school, and allowed and ordered paid by the state board of examiners."

¶25 Section 12, article XI, of the constitution of the state of Montana is as follows:

"The funds of the state university and all other state institutions of learning, from whatever
source accruing, shall forever remain inviolate and sacred to the purpose for which they were
dedicated. The various funds shall be respectively invested under such regulations as may be
prescribed by law, and shall be guaranteed by the state against loss or diversion. The interest of
said invested funds, together with the rents from leased lands or properties, shall be devoted to
the maintenance and perpetuation of these respective institutions."

¶26 It will thus be seen that by the terms of the enabling act it was provided that the lands
granted to the state were for the establishment and maintenance of a school of mines, and for a
state normal school, etc., and that the lands thus granted should "Be held, appropriated and
disposed of'" exclusively for the purposes therein named, and "In such manner as the legislature
of the state may provide." The constitution expressly provided that "The interest of said invested
funds, together with the rents from leased lands or properties, shall be devoted to the
maintenance and perpetuation of these respective institutions." Notwithstanding the limitations
placed upon these lands and funds by the state constitution, the legislature of the state of
Montana authorized and directed the state board of land commissioners to issue bonds the
proceeds of which were to be used to erect, furnish and equip an addition to a state normal
school, upon the theory that the enabling act conferred such power upon the legislature,
regardless of the limitations placed upon it by the state constitution.

¶27 It was contended in that case, as it is here, that the provisions of the enabling act, in respect
to the disposition of these lands and funds controlled over the provisions contained in the
constitution. The supreme court of the United States denied this contention, and held that in
executing the authority entrusted to it by congress, the legislature must act in subordination to the
state constitution. Mr. Justice Moody, in delivering the opinion of the court, on pages 299, 300
uses the following language:

"In support of it the plaintiff in error argues that the grant of all the land by the enabling act was
by an ordinance accepted by the state 'Upon the terms and conditions therein provided;' that the
legislature of the state was by the last clause of section 17 appointed as agent of the United
States, with full power to dispose of the lands in any manner which it deemed fitting, provided
only that the lands or their proceeds should be devoted to normal school purposes, and that,
therefore, in the execution of this agency the legislature was not and could not be restrained by
the provisions of the state constitution. It is vitally necessary to the conclusion reached by these
arguments that the enabling act should be interpreted as constituting the legislature, as a body of
individuals and not as a parliamentary body, the agent of the United States: But it is not
susceptible of such an interpretation. It granted the lands to the state of Montana, and the title to
them, when selected, vested in the grantee. In the same act the people of the territory, about to
become a state, were authorized to choose delegates to a convention charged with the duty of
forming a constitution and state government. It was contemplated by congress that the
convention would create the legislature, determine its place in the state government, its relations
to the other governmental agencies, its methods of procedure, and, in accordance with the
universal practice of the states, limit its powers. It is not to be supposed that congress intended
that the authority conferred by section 17 of the enabling act upon the legislature should be
exercised by mere ascertainment of its will, perhaps when not in stated session, or by a majority
of the votes of the two houses, sitting together, or without the assent of the executive, or
independently of the methods and limitations upon its powers prescribed by its creator. On the
contrary, the natural inference is that congress, in designating the legislature as the agency to
deal with the lands, intended such a legislature as would be established by the constitution of the
state. It was to a legislature whose powers were certain to be limited by the organic law, to a
legislature as a parliamentary body, acting within its lawful powers, and by parliamentary
methods, and not to the collection of individuals, who for the time being might happen to be
members of that body that the authority over these lands was given by the enabling act. It
follows, therefore, that in executing the authority entrusted to it by congress, the legislature must
act in subordination to the state constitution, and we think that in so holding the supreme court of
the state committed no error."
¶28 But counsel for defendant in error rely upon the case of Wells v. Bain, 75 Pa. 39, in support
of their contention that the convention possesses only such powers as are expressly granted in the
enabling act, and such implied or incidental powers as are necessary to carry into effect the
express powers thus granted by congress, and that if the convention exceeds such powers, then
the powers of the courts can be invoked to enjoin or restrain it from submitting such propositions
in the constitution or ordinance to a vote of the people. In this case, it appears that an act of the
legislature authorized, in pursuance of a vote of the people, the election of delegates to a
convention to revise and amend the constitution, and directed the convention to submit the
proposed amendments to the voters of the state at such time and "In such manner as the
convention shall prescribe," but also directed that the election to decide for or against the
amendments "Shall be conducted as the general elections of this commonwealth are now by law
conducted." By the then existing election laws, the elections were conducted by inspectors. The
convention, by an ordinance, appointed certain persons to have direction of the election on
amendments, to fill vacancies, to appoint judges and inspectors, etc. And it was there held that
the part of the ordinance relating to the election was in conflict with the election laws enacted by
the state legislature, and was therefore void. But in this case there was no attempt to enjoin the
submission of the constitution, or any of its provisions, to a vote of the people; nor was there any
attempt to restrain or enjoin the convention, its officers or delegates, from discharging their
functions. But the action was instituted after the convention had completed its labors, and it had
for its object the sole purpose of enjoining that portion of the ordinance which attempted to
create election officers which were unauthorized, and who were attempting to supplant or
supersede the officers who were charged, as it was there contended and held, with the duty of
conducting such election by virtue of an act of the legislature, which provided for the election of
delegates to amend and revise the constitution. This decision seems to be in irreconcilable
conflict with the decisions of the highest courts of the land. The convention was authorized by a
direct vote of the people to revise and amend the state constitution. The power of the convention
to revise and amend the constitution was not a delegated power derived from the legislature, but
it derived its power directly from the people. And in the performance of the powers and duties
and obligations resting upon the convention, it could have no superior but the people themselves.
Manifestly, to hold otherwise would be to degrade the powers of the convention below the level
of the lowest legislative or municipal body. Clearly, such is not the office, functions, and powers
of the constitutional convention. This decision was severely criticised at the time by the ablest
members of the bar of the state, and was repudiated by the constitutional convention of New
York of 1894, which was composed of some of the greatest lawyers and most eminent statesmen
of our times.

¶29 THE COURTS HAVE NO POWER TO RESTRAIN OR ENJOIN THE CONVENTION.

¶30 The convention being vested with legislative powers and functions its acts and proceedings,
in the performance of such duties, are not subject to judicial control or interference. The power
of the courts to enjoin or restrain the convention, its officers or delegates, from exercising the
rights, powers, and duties confided to them must, therefore, be denied. Nor have the courts the
power or jurisdiction to enjoin or restrain the submission of the constitution or any proposition
contained therein to a vote of the people. This conclusion it seems to us, is self-evident. No case
has been cited, and we are unable, by the most diligent research, to find a case, from the
foundation of the government down to the present time where any court has ever restrained or
enjoined a constitutional convention, its officers or members: Nor has any case been cited or
found where the constitution, or any of the propositions contained therein, was ever enjoined by
any court prior to the time the constitution was adopted. If, therefore, the convention, or its
officers and delegates, could be enjoined by the courts from exercising legislative functions, such
as the creating and defining of counties in Oklahoma or Indian Territory, or on defining and
describing the boundaries of the counties in the proposed state, and which in effect would divide
or change the counties as they now exist in the Territory of Oklahoma, and if this part of the
constitution could be restrained and enjoined from being submitted to a vote of the people, then
we can perceive of no sound reason why any other portion of the constitution could not be
attacked in the courts and its constitutionality determined in advance of the submission of such
question or proposition to the vote of the people. To concede the power of the courts to enjoin
and restrain the convention in the exercise of its powers in incorporating any legislative matter
that it may deem appropriate therein, on the ground that it is unconstitutional and void, in
advance of the submission of the same to the people for ratification or rejection, and prior to the
time that it is approved by the President, would, it seems to us, lead to interminable litigation,
and the inevitable result would be to tie the hands of the convention and indefinitely postpone the
submission of the constitution or any of its provisions, to a vote of the people. Fortunately, such
is not the law. If the constitution, or any of its provisions, is repugnant to the constitution of the
United States or any of the terms and conditions of the enabling act, these questions can be
litigated and determined at the appropriate time. The moment the constitution is ratified by the
people, and approved by the President of the United States, then every section, clause, and
provision therein becomes subject to judicial cognizance. That the courts will not interfere by
injunction, or otherwise, with the exercise of legislative or political functions, is well settled by a
long line of adjudicated cases which we will review at some length, owing to the great
importance of the questions involved in this case.

¶31 As early as 1831 this question was before the supreme court of the United States in a suit
brought by the Cherokee Nation against the state of Georgia, 5 Pet. 1. This was a bill in equity
brought by the Cherokee Nation, praying an injunction to restrain the state of Georgia from the
execution of certain laws of that state, which it was alleged would annihilate the Cherokee
Nation as a political society, and seize for the use of Georgia the lands of the nation which had
been assured to them by the United States, in solemn treaties repeatedly made and still in force.
The opinion of the court in this case was delivered by Mr. Chief Justice Marshall, and in the
course of the opinion, on page 18, the learned chief justice says:

"A serious additional objection exists to the jurisdiction of the court. Is the matter of the bill the
proper subject for judicial inquiry and decision? It seeks to restrain a state from the forcible
exercise of legislative power over a neighboring people, asserting their independence; their right
to which the state denies. On several of the matters alleged in the bill, for example, on the laws
making it criminal to exercise the usual powers of self-government in their own country, by the
Cherokee Nation, this court cannot interpose; at least, in the form in which these matters are
presented.

"That part of the bill which respects the land occupied by the Indians, and prays the aid of the
court to protect their possession, may be more doubtful. The mere question of right might,
perhaps, be decided by this court, in a proper case, with proper parties. But the court is asked to
do more than decide on the title. The bill required us to control the legislature of Georgia, and to
restrain the exertion of its physical force. The propriety of such an interposition by the court may
be well questioned; it savors too much of the exercise of political power, to be within the proper
province of the judicial department. But the opinion on the point respecting parties makes it
unnecessary to decide this question.

"If it be true, that the Cherokee Nation have rights, this is not the tribunal in which those rights
are to be asserted. If it be true, that wrongs have been inflicted, and that still greater are to be
apprehended, this is not the tribunal which can redress the past or prevent the future. The motion
for an injunction is denied."

¶32 In the case of The State of Mississippi v. Johnson, 4 Wall. 475, 18 L. Ed. 437, the supreme
court of the United States was asked to restrain and enjoin Andrew Johnson, then President of
the United States, and a citizen of Tennessee, from enforcing the acts of congress of March 2 and
23 1867, commonly known as the "Reconstruction Acts" on the ground that such acts were
unconstitutional and void. Chief Justice Chase, speaking for the court, in the course of the
opinion said:

"Congress is the legislative department of the government; the President is the executive
department. Neither can be restrained in its action by the judicial department; though the acts of
both, when performed, are, in proper cases subject to its cognizance."

¶33 And, again, he says:

"It is true that a state may file an original bill in this court. And it may be true, in some cases, that
such a bill may be filed against the United States. But we are fully satisfied that this court has no
jurisdiction of a bill to enjoin the President in the performance of his official duties; and that no
such bill ought to be received by us. * * * * * The motion for leave to file the bill is, therefore,
denied."

¶34 In the case of State of Georgia v. Stanton, 6 Wall. 50, 18 L. Ed. 721, the supreme court of
the United States had before it for decision a bill in equity, filed by the state of Georgia, seeking
to enjoin the secretary of war, and other officers who represented the executive authority of the
United States, from carrying into execution certain acts of congress, on the ground that such
execution would annul and totally abolish the existing state government of the state and establish
another and different one in its place. In other words, would overthrow and destroy the corporate
existence of the state by depriving it of all the means and instrumentalities whereby its existence
might, and otherwise would, be maintained. It was held that the bill called for a judgment upon a
political question, and would therefore not be entertained by the court. Mr. Justice Nelson,
speaking for the court, on page 77 of the opinion, says:

"That these matters, both as stated in the body of the bill, and, in the prayers for relief, call for
the judgment of the court upon political questions, and, upon rights, not of persons or property,
but of a political character, will hardly be denied. For the rights for the protection of which our
authority is invoked, are the rights of sovereignty, of political jurisdiction, of government, of
corporate existence as a state, with all its constitutional powers and privileges. No case of private
rights or private property infringed, or in danger of actual or threatened infringement, is
presented by the bill, in judicial form, for the judgment of the court."

¶35 In New Orleans Water Works Company v. New Orleans, 164 U.S. 471, 41 L. Ed. 518, 17 S.
Ct. 161, the supreme court of the United States had under consideration the question whether the
court would enjoin and restrain a municipal council in the exercise of its powers as a legislative
body, and it was there held that:

"A court of equity cannot properly interfere with, or in advance restrain the discretion of a
municipal body while it is in the exercise of powers that are legislative in their character."

¶36 In the court of the opinion, Mr. Justice Harlan, speaking for the court, says:

"If it be said that a final decree against the city, enjoining it from making such grants in the
future, will control the future action of the city council of New Orleans, and will, therefore, tend
to protect the plaintiff in its rights, our answer is that a court of equity cannot properly interfere
with, or in advance restrain, the discretion of a municipal body while it is in the exercise of
powers that are legislative in their character. It ought not to attempt to do indirectly what it could
not do directly. In view of the adjudged cases, it cannot be doubted that the legislature may
delegate to municipal assemblies the power of enacting ordinances that relate to local matters,
and that such ordinances, if legally enacted, have the force of laws passed by the legislature of
the State and are to be respected by all. But the courts will pass the line that separates judicial
from legislative authority if by any order or in any mode they assume to control the discretion
with which municipal assemblies are invested, when deliberating upon the adoption or rejection
of ordinances proposed for their adoption. The passage of ordinance by such bodies are
legislative acts which a court of equity will not enjoin. Chicago v. Evans, 24 Ill. 52, 57: Des
Moines Gas Co. v. Des Moines, 44 Iowa 505; 1, Dillon on Mun. Corp. sec. 308, and notes; 2
High on Injunctions, sec. 1246. If an ordinance be passed and is invalid, the jurisdiction of the
courts may then be invoked for the protection of private rights that may be violated by its
enforcement. Page v. Case, 34 Maryland, 558, 664; Baltimore v. Radecke, 49 Md. 217, 231."

¶37 In State ex rel. Rose v. Superior Court of Milwaukee County, decided by the supreme court
of Wisconsin February 27, 1900, and reported in 48 L.R.A. 819, it was held that the passage of
an ordinance of the city of Milwaukee was a legislative power and that a court of equity had no
jurisdiction to restrain the common council from passing the same. In this case the court had
under consideration the validity of an ordinance which the common council of the city of
Milwaukee attempted to enact. The action was instituted in the superior court of Milwaukee
county, having for its object the restraining and enjoining of the common council from enacting
the ordinance. The court granted the injunction as prayed for. Notwithstanding the injunction, the
common council violated the orders of the court, and proceeded to enact the ordinance. The
members were accordingly cited to appear before the court, to show cause why they should not
be punished for contempt. Upon the hearing, a majority of the common council admitted to the
trial court that they had severally violated the injunction order in question. The only excuse given
for the violation was that the court was without jurisdiction to make the order. Therefore, the sole
legal question presented was whether the court had jurisdiction of the subject-matter. The trial
court held that it had jurisdiction of the subject-matter of the action, and adjudged the common
council guilty of contempt. Upon this order and judgment of the trial court, application was made
to the supreme court for a peremptory writ of prohibition, to prohibit the execution of the
judgment, and, upon a full hearing and consideration, the writ was awarded, the supreme court
holding that the trial court was without jurisdiction of the subject-matter of the action. In the
course of the opinion, Mr. Chief Justice Cassoday, speaking for the court, says:

"The power so vested in the common council is, within the limits prescribed, a discretionary
power; and we must hold that a court of equity has no jurisdiction to restrain the common
council from exercising such discretion, especially at the suit of a private party. It is said that the
amendment to the ordinance, as originally proposed, was not submitted to a committee as
required. It is enough to say that a court of equity has no place in the chamber of the common
council to supervise or superintend the proceedings of that body, while engaged in the exercise
of legislative or discretionary functions. The common council of Milwaukee, like other
legislative bodies and courts, is liable to commit errors which may be fatal to its action; but that
does not take away its power to act."

¶38 In The Des Moines Gas Co. v. The City of Des Moines, 44 Iowa 505, it was said by the
supreme court of Iowa, having this question under consideration:

"The general assembly is a co-ordinate branch of the state government, and so is the law-making
power of public municipal corporations within the prescribed limits. It is no more competent for
the judiciary to interfere with the legislative acts of the one than the other. But the
unconstitutional acts of either may be annulled. Certainly the passage of an unconstitutional law
by the general assembly could not be enjoined. If so, under the pretense that any proposed law
was of that character, the judiciary could arrest the wheels of legislation."

¶39 It is evident, then, from a consideration of the authorities, that the constitutional convention
is a legislative body of the highest order, and that it cannot be interfered with by injunction in the
exercise of its powers. This being true, the convention was given the power, and it was made its
duty, to do two things: First, to form a constitution; and second, to form a state government.

¶40 THE CONSTITUTION AND STATE GOVERNMENT.

¶41 First, let us briefly examine the difference between the federal and state governments. Judge
Cooley, in his great work on Constitutional Limitations (7 ed.), page 11, states this distinction as
follows:

"The government of the United States is one of enumerated powers; the national constitution
being the instrument which specifies them, and in which authority should be found for the
exercise of any power which the national government assumes to possess. In this respect it
differs from the constitutions of the several states, which are not grants of powers to the states,
but which apportion and impose restrictions upon the powers which the states inherently
possess."

¶42 Mr. Chief Justice Waite, in United States v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588, states
the true doctrine as follows:
"The government of the United States is one of delegated powers alone. Its authority is defined
and limited by the constitution. All powers are not granted to it by that instrument are reserved to
the state or to the people. No rights can be acquired under the constitution or laws of the United
States except such as the government of the United States has the authority to grant or secure. All
that cannot be so granted or secured are left under the protection of the states."

¶43 Chief Justice Marshall, in the celebrated case of McCulloch v. Maryland, 4 Wheat. 316, 4 L.
Ed. 579, in speaking of the division of sovereignty appertaining to the United States and to the
states, declared:

"Does it belong to one more than to another? In America, the powers of sovereignty are divided
between the government of the Union, and those of the states. They are each sovereign, with
respect to the objects committed to it and neither is sovereign, with respect to the objects
committed to the other."

¶44 What then is a state constitution, and what are its attributes?

¶45 Judge Story, in his work on the Constitution, vol. 1, sec. 339, says:

"A constitution is in fact a fundamental law or basis of government, and falls strictly within the
definition of law as given by Mr. Justice Blackstone. It is a rule of action prescribed by the
supreme power in a state, regulating the rights and duties of the whole community. It is a rule, as
contradistinguished from a temporary or sudden order; permanent, uniform and universal."

¶46 The late Justice Miller, of the supreme court of the United States, in his valuable work on the
Constitution, page 70, says:

"A constitution in the American sense of the word is the written instrument by which the
fundamental powers of government are established, limited, and defined, and by which those
powers are distributed among the several departments for their safe and useful exercise for the
benefit of the body politic."

¶47 In Vanhorne v. Dorrance, 2 Dall. 308, the court defines a constitution as follows:

"What is a constitution? It is the form of government, delineated by the mighty hand of the
people, in which certain first principles of fundamental laws are established. The constitution is
certain and fixed; it contains the permanent will of the people, and is the supreme law of the
land; it is paramount to the power of the legislature, and can be revoked or altered only by the
authority that made it."

¶48 In Phoebe v. Jay. 1 Ill. 268, 271 the supreme court of Illinois declared that:

"The term 'Constitution,' as applied to government, is the form of government instituted by the
people in their sovereign capacity, in which, first, the principal and fundamental laws are
established. A constitution is the supreme, permanent, and fixed will of the people in their
original, unlimited, and sovereign capacity and in it are determined the conditions, rights and
duties of every individual of the community."

¶49 The supreme court of Indiana, in the case of In re Denny, 156 Ind. 104, 59 N.E. 359; said:

"In our system of government, a written constitution is the highest expression of law; none other
emanates directly from the sovereign people themselves. It is the deliberate and affirmative
utterance of the sovereign majority."

¶50 In Taylor v. Governor, 1 Ark. 21, it is said:

"What is a constitution? The constitution of an American state is the supreme, organized, and
written will of the people acting in convention and assigning to the different departments of the
government their respective powers. It may limit and control the action of these departments, or
it may confer upon them any extent of power not incompatible with the federal compact. By an
inspection and examination of all the constitutions of our own country they will be found to be
nothing more than so many restrictions and limitations upon the departments of the government
and the people."

¶51 In 8 Cyc. 717, the doctrine is clearly stated as follows:

"A state constitution consists of a number of fundamental laws passed by, and alterable and
repealable alone by the people; it is superior to the will of the legislature, the validity of whose
acts is determined by its provisions."

¶52 Citing with approval Taylor v. Governor, 1 Ark. 21, 27; Lynn v. Polk, 8 Lea. (Tenn.) 121,
165; and Bates v. Kimball, 2 D. Chipm. (Vt.) 77, 84, where it is said:

"When the people associate and enter into compact for the purpose of establishing government,
that compact, whatever may be its provisions, or in whatever language it may be written is the
constitution of the state, revocable only by the people, or in the manner they prescribe."

¶53 In short, the constitutional convention, subject to the constitution of the United States and
the limitations and restrictions contained in the enabling act, had full power and authority to
incorporate in the constitution any provision which it deemed appropriate.

¶54 But this does not mean, as it was stated by the learned trial court, that if such power is
conceded to the convention, it had "The power to repeal all laws, abolish all institutions, and
displace all officers, from the highest to the very lowest." No such power was confided to the
convention, nor has it exercised such powers. Clearly, to repeal existing laws of the territory, and
to displace any existing officers, would be to act in direct opposition to the express provisions of
section 6 of the enabling act, which provides:

"And the said representatives, together with the governor and other officers provided for in said
constitution, shall be elected on the same day of the election for the ratification or rejection of the
constitution; and until said officers are elected and qualified under the provisions of such
constitution and the said State is admitted into the Union, the territorial officers of Oklahoma
Territory shall continue to discharge the duties of their respective offices in said territory."

¶55 But, the grant by congress to form a constitution and state government carries with it
everything that is essential to effectuate its object. We are unable to perceive how a state
government could be created, and officers for a full state government provided for, unless the
convention had the power to fix and define the counties within the entire state, and to provide by
ordinance for necessary temporary election machinery, and for putting the state government into
operation when the constitution is ratified by the people and the President issues his
proclamation admitting the state into the Union on an equal footing with the original states.

¶56 This leads us to the next question: What is a state government, within the purview of the
enabling act?

¶57 The convention was not only authorized to form a constitution, but it was expressly
authorized and empowered to form a state government. It seems to us that the creation of
counties and townships is absolutely essential and indispensable to the formation of a state
government. In fact, counties and townships have been inseparable parts of every state
government since the admission of the original thirteen states into the Union. Indeed, such
counties antedate the adoption of the federal constitution. And it will be presumed that when
congress authorized the people of Oklahoma and Indian Territory to form a constitution and state
government and be admitted into the Union on an equal footing with the original states, it
intended that such a state government should be formed. No particular form of government was
prescribed, and the only limitations thereon are that the constitution and state government shall
be republican in form, and not repugnant to the federal constitution and the principles of the
Declaration of Independence, etc.

¶58 It is to be presumed that congress knew the conditions existing in the Indian Territory, and
knew that no counties had been formed or created therein, and that it was absolutely essential for
the convention to create counties, and to provide the necessary machinery for holding the
election for submitting the constitution to a vote of the people. It also knew that the Territory of
Oklahoma contained organized counties, and that each county had a full complement of county
officers, and that they were exercising their powers and duties as such under the laws of
Oklahoma Territory, except the Osage Indian Reservation, which was an unorganized county,
and attached to Pawnee county, under the organic act, for judicial purposes. There was no
inhibition placed upon the convention against creating and defining the counties in the proposed
state, and the only inhibition placed upon the convention is that provided in section 21, with
reference to the Osage Indian Reservation, where it is declared:

"That the constitutional convention may by ordinance provide for the election of officers for a
full state government, including members of the legislature and five representatives to congress,
and shall constitute the Osage Indian Reservation a separate county, and provide that it shall
remain a separate county until the lands in the Osage Indian Reservation are allotted in severalty
and until changed by the legislature of Oklahoma."
¶59 In the absence of any express prohibition upon the convention, it had full and complete
power to establish and define all the counties in the proposed state, as a necessary incident to the
formation of a state government. The power to form a state government clearly implies the
power to create and define every county within the limits of the new state, the only limitation
upon the convention in this respect being that the Osage Indian Reservation shall remain a
separate county until the lands in the Osage Indian Reservation are allotted in severalty, and until
changed by the legislature of the state of Oklahoma.

¶60 Manifestly, the territorial government and all the counties organized thereunder were
intended to be for temporary purposes only, and to remain as such until the state government was
created and organized. It is difficult to perceive how the convention could have organized a full
state government without defining and fixing the boundaries of the counties throughout the entire
state. In this connection, it must be borne in mind that the convention was not created for the
purpose of forming a government for Oklahoma or Indian Territory, but they were charged with
the power, duty, and responsibility of forming a state government for all the people of the
proposed state of Oklahoma, and in fixing the boundaries of the counties throughout the entire
state, there were no limitations whatever placed upon the convention, except with reference to
the Osage Indian Reservation, as above stated. Accordingly, the convention did, by the terms and
provisions of the constitution, fix and define and name each of the counties of the proposed state,
and designated the county seats therein, and also provided how the county lines might be
changed, or the county seats removed. The wisdom, expediency, or propriety, of such action is a
question that was peculiarly confided to the convention, and is not the subject at this time of
judicial cognizance.

¶61 That counties and townships are parts of a state government is so well settled by the
adjudicated cases, that it is no longer open to serious judicial controversy.

¶62 In Board of County Commissioners of Greer County v. Watson, 7 Okla. 174, this court,
speaking by Chief Justice Burford, defined a county as follows:

"A county is an involuntary political and civil division of the territory, created by statute to aid in
the administration of governmental affairs, and possessed of a portion of the sovereignty. All the
powers with which it is entrusted are the powers of the sovereignty which created it, and all the
duties with which it is charged are the duties of the sovereignty."

¶63 In Commissioners of Tolbert County v. Queen Anne's County, 50 Md. 245, it is said:

"A county is one of the territorial divisions of the state created for public and political purposes
connected with the administration of the state government."

¶64 This language was quoted with approval by the supreme court of the United States in
Washer v. Bullitt County, 110 U.S. 558, 28 L. Ed. 249, 4 S. Ct. 249.

¶65 In Commissioners of Laramie County v. Commissioners of Albany County, 92 U.S. 307, 23

L. Ed. 552, it was said by the supreme court of the United States:
"Corporations of the kind are properly denominated public corporations, for the reason that they
are but parts of the machinery employed to carry on the affairs of the state."

¶66 And in the course of the opinion, on page 311, Mr. Justice Clifford, speaking for the court,
said:

"Institutions of this kind, whether called counties or towns, are the auxiliaries of the state in the
important business of municipal rule, and cannot have the least pretention to sustain their
privileges or their existence upon any thing like a contract between them and the legislature of
the state, because there is not and cannot be any reciprocity of stipulation, and their objects and
duties are utterly incompatible with every thing of the nature of compact. Instead of that, the
constant practice is to divide large counties and towns, and to consolidate small ones, to meet the
wishes of the residents, or to promote the public interests, as understood by those who control the
action of the legislature. Opposition is sometimes manifested; but it is every where
acknowledged that the legislature possesses the power to divide counties and towns at their
pleasure, and to apportion the common property and the common burdens in such a manner as to
them may seem reasonable and equitable. School Society v. School Society, 14 Conn. 457;
Bridge Co. v. East Hartford, 16 Id. 172; Hampshire v. Franklin 16 Mass. 76; North Hemstead v.
Hemstead, 2 Wend. 109; Montpelier v. East Montpelier, 29 Vt. 12; Sill v. Conning, 15 N.Y. 297;
People v. Draper, Id. 549; Waring v. Mayor, 24 Ala. 701; Mayor v. The State, 15 Md. 376;
Ashby v. Wellington, 8 Pick. 524; Baptist So. v. Candia, 2 N.H. 20; Denton v. Jackson, 2 Johns.
Ch. 320."

¶67 In the case of Eagle v. Beard, 33 Ark. 497, it is said:

"The political power is composed of representatives from counties. Through them justice is
administered, the revenue collected, and the local police rendered effective Neither the courts of
justice, nor the executive of the state, can perform any important function, except in the
tribunals, or through the offices of the counties."

¶68 In Woods v. Colfax., 10 Neb. 552, 7 N.W. 269; Ch. Justice Maxwell, quoting from 7 Mass.,
169, says:

"A county is a mere local subdivision of the state created by it without the request or consent of
the people residing therein. * * * County organization is created almost exclusively with a view
to the policy of the state at large. * * * With scarcely an exception all the powers and functions
of the county organization have a direct and exclusive reference to the general policy of the state,
and are in fact but a branch of the general administration of that policy."

¶69 In Commissioners of Hamilton County v. Mighels, 7 Ohio St. 107, Justice Brinkerhoff says:

"Counties are legal subdivisions of the state, created by the sovereign power of the state, of its
own sovereign will, without the particular solicitation, consent, or concurrent action of the
people who inhabit them."
¶70 In Ward v. County of Hartford, 12 Conn. 404, Chief Justice Williams speaking of the court,
says:

"The state is divided into counties for public purposes, and particularly for the more convenient
administration of justice."

¶71 In Gooch v. Gregory, 65 N.C. 142, the court says:

"A county is a municipal corporation created by law for public and political purposes and
constitutes part of the government of the state."

¶72 It follows that the convention had the undoubted right to define and fix the boundaries of
every county in the proposed state, and to change existing counties, if they deemed it
appropriate, and to define legislative and judicial districts, in order that a full state government
might be put into operation, and to provide for the necessary machinery to submit the
constitution to a vote of the people for ratification or rejection.

¶73 THE CONVENTION MAY PROVIDE FOR THE ELECTION OF STATE, COUNTY,
AND OTHER OFFICERS PROVIDED FOR IN THE CONSTITUTION.

¶74 By section 21 of the enabling act it is provided:

"That the constitutional convention may by ordinance provide for the election of officers for a
full state government, including members of the legislature and five representatives to congress."

¶75 And by the last clause of section 6 of said act, it is provided:

"And the said representatives, together with governor and other officers provided for in the said
constitution, shall be elected on the same day of the election for the ratification or rejection of the
constitution; and until said officers are elected and qualified under the provisions of such
constitution and the said state is admitted into the Union, the territorial officers of Oklahoma
Territory shall continue to discharge the duties of their respective offices in said Territory."

¶76 It will thus be seen that congress granted the power and authority to the convention to
provide by ordinance for the election of officers for a full state government. What, then, is a full
state government within the meaning of this act? In our opinion, officers for a full state
government includes not only the state officers whose power and duties are co-extensive with the
limits of the state, but includes all the officers whose duties are in any manner connected with the
administration of the state government. Hence, we think the convention had the power to provide
in the ordinance for the election of all the officers which were provided for in the constitution,
from the highest to the lowest. It seems to us to hold otherwise would be to place a very strained
and narrow interpretation upon the language used in the act, that the convention may by
ordinance provide for the election of officers for a full state government. And since we have
already decided that the counties and townships are necessary and indispensable parts of the state
government, it must follow, as an inevitable conclusion, that the convention had the power to
provide for the election of state, county, and others officers provided for in the constitution.
¶77 THE ORDINANCE.

¶78 What is an ordinance, and what are it objects? Section 4 of the enabling act provides:

"That in case a constitution and state government shall be formed in compliance with the
provision of this act the convention forming the same shall provide by ordinance for submitting
said constitution to the people of said proposed state for its ratification or rejection at an election
to be held at a time fixed in said ordinance." etc.

¶79 It will thus be seen that the enabling act provides that the convention "Shall provide by
ordinance for submitting said constitution to the people", etc. The language here used is clear,
specific, and mandatory in its terms.

¶80 An ordinance, as used in this act, has the force and effect of a legislative enactment or law
for the purposes therein named. Manifestly, it is a law which is essential to carrying into effect
the objects for which the convention was created. Thus we speak of the famous ordinance of
1787, which created a government of that portion of the territory of the United States northwest
of the Ohio river, and known as the Northwest Territory.

¶81 It will thus be seen that congress conferred direct and express power and authority upon the
convention to pass an appropriate ordinance to submit the constitution to the people for its
ratification or rejection, at an election at a time fixed in said ordinance, by the convention. Such
an ordinance, when once adopted by the convention, has the force and effect of statute law.

¶82 The distinction between a constitution and an ordinance is this: The constitution is a
permanent fundamental law of the state. It is of a stable and permanent character. As is
appropriately said in Vanhorne v. Dorrence, 2 Dall. 308;

"The constitution of a state is stable and permanent, not to be worked upon by the temper of the
times, nor to rise and fall with the tide of events; notwithstanding the competition of opposing
interests, and the violence of contending parties, it remains firm and immovable, as a mountain
amidst the strife of storms, or a rock in the ocean amidst the raging of the waves."

¶83 But, under the terms of the enabling act, it is prospective in its operation only. That is, it
does not become operative until it is ratified by the people, and approved by the President of the
United States. On the other hand, an ordinance, as used in this act, refers to a merely temporary
law, its object being to carry into effect the formation of the constitution and fundamental law of
the state, to provide a mode and means for an election of a full state government, including the
members of the legislature and five representatives to congress, and because operative
immediately upon its adoption.

¶84 Section 1 of the election ordinance adopted by the convention on April 22, 1907, provides as
follows:

"Said election shall, in all respects, be held and conducted in the manner required by the law of
the Territory of Oklahoma for elections therein, when not in conflict with the enabling act, and as
supplemented by this ordinance, and the returns of said election shall be made to the secretary of
the Territory of Oklahoma, who, with the chief justice thereof, and the senior judge of the United
States court of appeals for the Indian Territory, shall canvass the same, and if a majority of the
legal votes cast on that question shall be for the constitution, the governor of Oklahoma
Territory, and the judge senior in service of the United States court of appeals for the Indian
Territory shall certify the results to the President of the United States, together with a statement
of the votes cast thereon, and upon separate articles or propositions, and a copy of said
constitution, articles, propositions, and ordinances, and in all respects comply with the provisions
of said enabling act."

¶85 And section 8 of said ordinance provides:

"That the election laws of the Territory of Oklahoma now in force, as far as applicable and not in
conflict with the enabling act, including the penal laws of said territory relating to election and
illegal voting, are hereby extended and put in force throughout the proposed state of Oklahoma
until the legislature of said proposed state shall otherwise provide, and until all persons offending
against said laws in the elections aforesaid, shall have been dealt with in the manner therein
provided, and the courts of said state shall have power to enforce said laws in the same manner
as other criminal laws of said state."

¶86 It will thus be seen that the convention, in its ordinance, expressly put in force the election
laws of Oklahoma, as far as applicable and not in conflict with the enabling act, including the
penal laws of said territory relating to election and illegal voting, and expressly provides that the
courts of said state shall have power to enforce said laws in the same manner as other criminal
laws of said state, until all persons offending against said laws shall have been dealt with in the
manner therein provided.

¶87 It seems to us that it was clearly the duty of the convention in its ordinance, to provide the
necessary machinery for holding such election in all the newly created counties of the proposed
state The officers created in the new counties in the Indian Territory and Oklahoma Territory
were merely for the temporary purpose of providing the necessary election machinery to carry
into effect the object of the convention. These offices are merely temporary, and they do not
supersede or supplant any of the existing officers, who are charged with the power and duty
under the election ordinance to carry into effect the duties devolving on them, and they possess
and exercise no powers, except such as granted for the purpose of carrying into effect the
provisions of the election ordinance. The manifest intention of the enabling act was that the
convention should by ordinance make uniform and specific provisions throughout the proposed
state for the holding of said election.

¶88 IS THE CONSTITUTION REPUBLICAN IN FORM?

¶89 But one question remains, and that is: Is the proposed constitution republican in form?

¶90 Article 4 section 4 of the constitution of the United States provides that:
"The United States shall guarantee to every state in this Union a republican form of
government."

¶91 And section 3 of the enabling act provides that:

"The constitution shall be republican in form, and make no distinction in civil or political rights
on account of race or color and shall not be repugnant to the constitution of the United States and
the principles of the Declaration of Indepence."

¶92 This leads us to the inquiry: In whom is lodged the power and authority to decide when the
government is republican in form?

¶93 In the case of Luther v. Borden, 7 How. 1, 12 L. Ed. 581, the supreme court of the United
States, speaking by Chief Justice Taney says:

"The fourth section of the fourth article of the constitution of the United States provides that the
United States shall guarantee to every state in the Union a republican form of government, and
shall protect each of them against invasion; and on the application of the legislature or of the
executive (when the legislature cannot be convened) against domestic violence.

"Under this article of the constitution it rests with congress to decide what government is the
established one in a state. For as the United States guarantee to each state a republican
government, congress must necessarily decide What government is established in the state before
it can determine whether it is republican or not. And when the senators and representatives of a
state are admitted into the councils of the Union, the authority of the government under which
they are appointed, as well as its republican character is recognized by the proper constitutional
authority. And its decision is binding on every other department of the government, and could
not be questioned in a judicial tribunal."

¶94 And in Texas v. White, 7 Wall. 700, 19 L. Ed. 227, the supreme court of the United States
had occasion to reiterate this same doctrine, where it is said: "But the power to carry into effect
the clause of guaranty is primarily legislative power, and resides in congress, 'Under the fourth
article of the constitution, and rests with congress to decide what government is the established
one in a state. For, as the United States guarantee to each state a republican government congress
must necessarily decide what government is established in the state, before it can determine
whether it is republican or not.' "

¶95 By section 4 of the enabling act it is provided:

"And if the constitution and government of said proposed state are republican in form, and if the
provisions of this act have been complied with in the formation thereof, it shall be the duty of the
President of the United States, within twenty days from the receipt of the certificate of the result
of said election and the statement of the votes cast thereon and a copy of said constitution,
articles, propositions, and ordinances to issue his proclamation announcing the result of said
election; and thereupon the proposed state of Oklahoma shall be deemed admitted by congress
into the Union, under and by virtue of this act, on an equal footing with the original states."
¶96 It will thus be seen that the power to determine whether the constitution is republican in
form is primarily a legislative power, and resides in congress; but this power was delegated by
congress to the President, and this question is not the subject of judicial cognizance.

¶97 We therefore hold that the constitutional convention has the power and authority to submit to
the people of the proposed state of Oklahoma the provisions in the constitution providing for the
creation of the counties of Alfalfa and Major of territory formerly embraced in Woods county,
that under the terms of the enabling act, authorizing and directing the convention to provide by
ordinance for an election to submit the constitution to a vote of the people for ratification or
rejection, and for the election of officers for a full state government, the convention had the
authority, to create the necessary election machinery in these counties, in order that the
constitution might be submitted to a vote of the people, and that the ordinance providing for such
election machinery in Alfalfa and Major counties is valid. It follows that the temporary
injunction granted by the probate judge, restraining and enjoining the governor of Oklahoma,
and the president and secretary of the constitutional convention from issuing or publishing any
proclamation in which it is sought to submit to the electors of the proposed state of Oklahoma, as
a part of said constitution, the creation of the counties of Alfalfa and Major, and which restrained
and enjoined the officers provided for in the ordinance from exercising the powers and duties of
the election officers in said counties was improvidently issued, and that the district court
committed error in refusing to dissolve the injunction, and in overruling the demurrer to the
petition, and in entering the decree making the temporary injunction perpetual.

¶98 THE DECREE.

¶99 The judgment of the district court of Woods county is therefore reversed and in order that
there may be no inconvenience or delay in carrying into effect the decree of this court is hereby
ordered, considered, adjudged and decreed that the judgment of the district court of Woods
county be and the same is hereby vacated, set aside, and held for naught; and it is further
ordered, considered, adjudged and decreed that the injunction granted in said cause is hereby
dissolved, vacated, set aside, and held for naught, and the said cause is hereby dismissed at the
costs of the plaintiff.

¶100 Pancost, J. who presided in the court below, not sitting; Irwin, J. dissenting; Burwell, J.,
dissenting in part and concurring in part; all other Justices concurring.

¶101 CONCURBY: BURFORD

¶102 CONCUR:

¶103 Concurring opinion by

¶104 BURFORD, C. J.: While I concur in the conclusions reached and judgment announced in
the opinion by Justice Hainer, I am unable to consent to some of the statements and reasons
therein contained. In the decision of one of the cases involved in this general controversy in the
district court of Logan county, I announced my views upon some of the questions involved in
this cause, but after more comprehensive argument by able and industrious counsel and more
careful research and extensive investigation I am compelled to modify my views somewhat as to
the powers and character of the constitutional convention.

¶105 It is said in the opinion of the court and supported by the statements of some of the ablest
text writers and jurists, that "A constitutional convention is a legislative body of the highest
order." In my judgment this proposition is incorrect, unsound and unsupported by reason or
logic, and the statement is contradicted by the definition given by its authors of the powers and
procedure of a constitutional convention. The constitutional convention is sui generis. In the
American form of republican government, sovereignty rests in the people, and is exercised
through representatives. In forming a constitution and state government the people act through
their representatives in the convention, but they do not delegate all their legislative power to the
convention. They reserve unto themselves the power of final approval or disapproval. The
convention formulates, proposes, and submits proposals for the form of government and the
fundamental laws; the people in their sovereign capacity enact these provisions into law. The
convention has no power to enact laws; it possesses no legislative powers except such as may be
necessary to exercise in prescribing by ordinance the methods and procedure for obtaining the
expression of the electors upon the ratification or rejection of the proposed constitution, and for
the election of the officers provided for in the constitution.

¶106 We have been taught by observation, experience and history to regard a legislative body as
one having the power to enact laws, to legislate finally upon subjects within its sphere. A
constitutional convention is not such a body. It is a representative, deliberative body, authorized
by law; it derives its authority from congress, and exercises the power resting in the people. It is
legislative in character; it proceeds in a legislative manner, acts in a legislative capacity in the
exercise of it powers in formulating and adopting propositions to be submitted for final action,
but its powers to legislate are of such limited and temporary character that it cannot correctly be
said to be a legislative body. In the exercise of its powers it is supreme, and it is not within the
jurisdiction of any court to interfere with or to control it. It is answerable only to the people
whose trust it executes, and they to the congress of the United States, which has the power of
final determination upon all questions relating to the form of government and provisions
contained in the constitution.

¶107 If the convention has framed a government which is not republican in form, has provided
an apportionment which violates that spirit of justice and fairness which pervades the
Declaration of Independence and constitution of the United States, and denies to any portion of
its territory or people equal rights under the law, or has disregarded the established principles of
local self-government, then the appeal must be to the electors in the first instance, and to the
President, to whom congress has delegated its power in the premises, in the second instance.
Such questions are political and governmental and do not come within judicial cognizance.

¶108 The election ordinance being in the nature of a temporary law and now in force, is a
subject-matter of judicial cognizance. In the absence of any direction in the enabling act I have
no doubt but the convention possessed the inherent power to by ordinance provide for the
submission of the constitution to the electors for their action, and for the election of a full quota
of state officers, but there is an express grant of power to that effect in the enabling act, and the
question presented is: Has the convention exceeded its powers in this particular, and usurped the
powers of the election officers provided by and acting under the laws of Oklahoma? Conceding
that the adoption of the election laws of Oklahoma by the enabling act carries with it the election
machinery existing under such law, it must also be conceded that it is the duty of the convention
to supply all defects in the operation of such machinery, and make the same, as supplemented by
the convention, conserve the purposes of the entire proposed state. I find nothing in the election
ordinance submitted by the pleadings in this case which in my judgment transgresses the powers
of the convention, and upon this proposition I am in full accord with the opinion prepared by Mr.
Justice Hainer.

¶109 Other questions have been argued in the several cases involving the questions here under
consideration, but the determination of the court that the question of what subjects may be by the
convention proposed for approval or disapproval and their nature and extent is not one of judicial
cognizance, disposes of all questions relating to the contents of the proposed constitution.

¶110 DISSENTBY: BURWELLIRWIN

DISSENT:

¶111 Dissenting opinion by

¶112 BURWELL, J.: A majority of my brethren have declared what shall, for a time at least, be
the law of this case. But as I entertain some views at variance with those expressed in the
majority opinion, it is perhaps due the parties to the action, as well as the public (For all who live
in either of the territories are interested in the result of this case) to know the reasons that have
impelled me to withhold my full concurrence in the judgment of the court. In every controversy,
personal or legal, there are two sides; but, in the very nature of things, on each issue one must be
right and the other wrong, and while experience has shown that in the greater number of cases,
perhaps the majority have been right, sometimes truth has been revealed to the few, and
notwithstanding the respect I have for the opinions of my brethren who have concurred in the
decision of the court, my own convictions have told me that the law on one vital point is with the
party who commenced this action, and that he is entitled to some relief.

¶113 The science of government is a profound subject which requires years of study and
observation to master. In a republic nothing is as important as the constitution or organic law.
Equally important is the organic law of a state. As to what should be in the constitution of
Oklahoma to best protect the interests of her citizens, afford equal opportunities to earn a
livelihood, and promote happiness, are questions which the constitutional convention must
determine, subject to the approval of the voters of the proposed state; and this court cannot, with
due regard to its powers, express thereon any opinion. But under the organic act of Oklahoma
which is and will remain in force until supplanted by a state constitution or repealed by congress,
the supreme and district courts of the territory are granted jurisdiction and power to redress all
wrongs committed against the constitution or laws of the United States, or of the territory,
affecting persons or property. The constitutional convention was convened by authority of the
United States, and where it is charged that they have exceeded their authority the courts may on
proper application take jurisdiction, determine the issues, and render any righted judgment
therein.
¶114 At the very threshold of this litigation the bold assertion is made that the convention has
exceeded its powers and divided counties already organized in Oklahoma, and that it has
provided for the election, not only of state officers including delegates to congress and members
of the legislature, but also for the election of all officers, state, county and township.

¶115 In this country, with its diversified interests, with its people from all sections of the nation
who have brought with them the policies and ideas of the lawmakers of their own state, with the
struggle for personal and political supremacy, it would be indeed difficult to form a constitution
that would satisfy all. Therefore, when counties are divided and new ones formed under
conditions calculated perhaps to increase the taxation of the individual, I am not surprised that he
should ask relief from the impending burdens. But whether the division of counties may increase
or diminish the taxes of the citizen will not influence in any degree the judgment of this court,
unless the convention has exceeded its authority and usurped powers not necessarily implied or
expressly conferred.

¶116 The only way in which the charge can be correctly decided is by investigating: First, the
provisions of the enabling act, the constitution of the United States, and the Declaration of
Independence; and second, ascertaining what powers a constitutional convention has incidental
to the forming of a constitution; in other words, what are its implied powers.

¶117 It is to the enabling act that both parties point with apparent confidence as supporting the
position taken, but after a careful study of this important congressional authority I am forced to
the conclusion that both have in some particulars misapprehended the meaning of that act.

¶118 In the first place those who represent the convention assert that the making of counties and
providing for their creation and organization are necessary to the framework of a state and
therefore properly and necessarily the work of the convention, and that in establishing boundary
lines in the Indian Territory, and in dividing the counties already established by congress in
Oklahoma and creating new counties therefrom, the convention followed in the footprints of
precedents; while the appellee contends that these acts were expressly forbidden by congress. In
support of his position the appellee points to the fact that the counties in Oklahoma divided by
the convention have been established by congress, and are organized and officered under the
laws of Oklahoma, and that the latter part of section twenty-one of the enabling act provides:

"And all laws in force in the Territory of Oklahoma at the time of the admission of said state into
the Union shall be in force throughout said state except as modified or changed by this act or by
the constitution of the state, and the laws of the United States not locally inapplicable shall have
the same force and effect within said state as elsewhere within the United States."

¶119 Surely no lawyer will contend that the provisions of the constitution can become effective
until Oklahoma is formally admitted into the Union. Until that time its penalties cannot be
enforced; its guarantees cannot protect the citizen in the enjoyment of life, liberty or property.
The convention is acting for the future state, and not for the territories. It cannot divide the
counties of the Territory of Oklahoma, but it may declare not only how many counties may be
created, but also what territory shall form the counties of the state; and that part of section
twenty-one of the enabling act which provides that the laws of Oklahoma shall be in force
throughout the state except as modified by the constitution, etc., of the state, made clear the
intention of the lawmakers. "Except as modified by the constitution of the state." is the language
of congress, and the instrument proposed to be submitted to the people for ratification is not yet a
constitution; in fact it may never be. The voters must first adopt it, and then it must be approved
by the President before life is breathed into it. Its terms do not become operative by degrees. It is
and will be void of life until the President issues his proclamation. When this is done the entire
constitution, each and all of its provisions eo instante spring into life, and from that time on it
becomes the ruling power of the state. Until then the offices created by it do not exist. The
powers conferred and limitations imposed therein have no binding force, and the counties
described in the constitution are but a part of the written specifications of the architects who have
drawn the plans for statehood. And as the architect may propose plans for the building, even so
may these agents of the people employed by the government, propose plans for the building of
the state. Congress has placed certain restrictions in the enabling act. The constitution of the
United States contains other rules that must be followed; likewise due regard must be observed
for the principles of the Declaration of Independence; but subject to these limitations, the power
exists to put into the constitution or leave out of it that which the judgment of the convention and
the people may approve or reject.

¶120 The contention, therefore, that the convention cannot legislate under the views herein
expressed, must be determined if at all, as a controversy presenting a subject void of real merit,
so far as legal rights are concerned, because such provisions have no force until the state is
admitted into the Union, and after that they are binding on all. Whether the making of counties is
a proper subject for the constitution to deal with, or should be referred to the legislative branch of
the state government, it is unnecessary to decide. Personally, however, (And I am speaking only
for myself) I have no doubt but that the making of counties by the convention or by the
legislature is a matter of judgment, and involves no question of power unless the constitution as
adopted inhibits the legislature from dealing with that subject. But be this as it may, the action of
the convention in dividing the counties in question, is an act which does not affect the territorial
government, but the government of the state, and if the people are entitled to self government,--
that is adopt a state constitution and code of laws,--they and their representatives should be left
free to evolve their own system and form a state government to their own liking, within the
limitations stated.

¶121 If it were necessary to support these views by precedents, no difficulty would be

experienced in finding them, and I may refer to some of the adjudicated cases later; but before
considering them I wish to assert that congress instead of prohibiting the convention from fixing
county boundaries, and creating new counties for the future state have expressly recognized the
right of the convention to do so. Now as has been urged by appellee, these counties were created
by congress and officered under the provisions of the territorial laws. Did congress in the
enabling act provide that the laws of the United States and the laws of Oklahoma should continue
in force in the state of Oklahoma? Oh. no. It did, however, attempt to carry along a complete
system of laws and continue the territorial officers in power until supplanted by laws enacted by
the state and officers elected by its voters, or duly appointed as the constitution or laws might
provide. The general government provided against contingencies which otherwise might have
left the citizen and property exposed to the dangers incident to lack of law. Therefore the
enabling act provided that "All laws in force in the Territory of Oklahoma at the time of the
admission of said state into the Union shall be in force throughout said state, except as modified
or changed by this act or by the constitution of the state."

¶122 What laws shall govern the state when first admitted? The laws of Oklahoma. The laws of
Oklahoma as they now exist? No, but the laws of Oklahoma as modified or changed by the
enabling act, and the constitution of the state. This language clearly not only confers the right,
but anticipates that changes in those laws may be deemed expedient. Let us now notice what is to
become of the laws of the United States other than the enabling act. Congress has said in this
same section of the enabling act and as a part of the section referred to above. Let us observe the
clause again. "All laws in force in the Territory of Oklahoma at the time of the admission of said
state into the Union shall be in force throughout said state, except as modified or changed by this
act or by the constitution of the state and the laws of the United States not locally inapplicable
shall have the same force and effect within said state as elsewhere within the United States."

¶123 It will be observed that congress did not continue in force generally the laws of the United
States applicable to Oklahoma and Indian Territory, nor does congress say that the laws of
Oklahoma shall be in force in the state of Oklahoma, except as modified by the enabling act and
the constitution of the state and the laws of congress. The exception refers to the enabling act and
the constitution of the state, and then in a subsequent clause, but connected with that which
precedes it, congress said, not as an exception, but as a positive declaration, "And all the laws of
the United States not locally inapplicable shall have the same force and effect within said state as
elsewhere within the United States."

¶124 From this provision it is evident that congress intended that the laws of the United States
enacted for the organization and government of these territories should not continue in force, and
that those laws which deal with subjects that would be a proper subject of congressional
legislation in a state, and those only, are continued in force, and even those are to have the same
force and effect within said state as elsewhere within the United States.

¶125 This act is a complete surrender of governmental control over these territories, upon a
compliance with its terms and conditions, except that control exercised over the other states of
the Union; and this is in keeping with the law applicable to such conditions as declared in the
books.

¶126 In 8th Cyc. page 750, subdivision e, I find the following language:

"Upon the succession of a territory to statehood and the adoption of a constitution by its people
that has received the approval of congress, all constitutions and ordinances framed by the federal
authorities for the purpose of the territorial government become suspended, giving full force and
effect to the new state constitution so adopted."

¶127 Attention is also called to section thirteen of the enabling act which contains the following
language:

"And that the laws in force in the Territory of Oklahoma, as far as applicable, shall extend over
and apply to said state until changed by the legislature thereof."
¶128 The trial court quotes this language as an inhibition against the power of the convention to
create counties in Oklahoma for the state government, or to provide for the election or
appointment of county officers for the same. As the justice who tried this case below is a
member of this court and by reason of having presided at such trial will not participate in its
consideration here, it is probably due his position that reasons by him assigned for his judgment
be answered by the justices called upon to review. This I gladly do, in so far as they conflict with
my own opinions, consistent with the space which may reasonably be taken in an opinion of this
kind. The trial court following up the language last quoted by way of argument for his position
states as follows:

"It should be borne in mind also that Woods county owes her existence to the same power and
authority from which the existence of the convention is derived. The same power which created
the convention, years before created this county. The law by which this county was created is
still in force. The act providing for the formation of a state government, neither by express or
implied terms, repeals the act under which this county (Woods county) was formed. How can it
then be said that the congress of the United States gave to the constitutional convention the
implied power to divide any county? There is no express provision therefor in the act. There is
no necessity for so doing. No better government will be formed thereby. No interests will be
better protected. Large and various individual interests have been established and great confusion
would exist by such division."

¶129 And again, the trial court referring to the clause quoted from section thirteen of the
enabling act says:

"It will be borne in mind that this provision of the enabling act does not provide that the laws of
the territory extend over the state only as far as applicable. But the laws of the territory are in
operation when the constitutional convention is formed and remain in operation while the
constitutional convention is in session. They remain in full force and operation after the
constitutional convention is adjourned. Nay, still more, they remain in full force and operation so
far as applicable in the whole state after the state government has been formed and until the state
legislature changes the same. This is a conclusive answer to some of the questions contended
for."

¶130 From a casual reading of the clause of the enabling act referred to, and the language of Mr.
Justice Pancoast in deciding the cases below, the mind might readily assent to the views above
expressed by him; but having started from a false premise,--that is from a misconception of the
meaning of the statute quoted, and possibly being inclined to the theory adopted in declaring the
law, an erroneous conclusion was reached, as I am sure must be conceded upon full
consideration of all the section of the enabling act from which the "clause" was taken. However
before proceeding to further inquiry regarding this section, and without elaborating thereon, I
wish to refer to the language used by the trial court, and must insist that the courts cannot
supervise or review the acts of the convention which pertain to necessity or policy so long as it
does not exceed its power and even then the courts will only grant relief in certain circumstances.
Congress has authorized the convention to prepare a constitution, and it is not for the courts to
say that there is no necessity for dividing counties, or that no better government can be formed
thereby, or that no interest will be better protected. Within the powers conferred or implied the
convention may submit to the people its own ideas without let or hinderance.

¶131 The language used in section thirteen of the enabling act to the effect that the "Law in force
in the Territory of Oklahoma, as far as applicable, shall extend over and apply to said state until
changed by the legislature thereof," has no reference to the general laws of Oklahoma as they
exist at the present time, or as they shall exist after statehood is effected. The part of the enabling
act which continues in force the general laws of Oklahoma after the organization of the state is
the latter part of section twenty-one which I have already considered, and expressly says that the
laws of Oklahoma shall be in force through the state, except as modified or changed by the
enabling act, or the constitution of the state. The language used in this section is positive, and
from its provisions the courts of the state can determine and declare what the law is. Not so with
section thirteen. The language of this section is as follows: "And that the laws in force in the
Territory of Oklahoma, as far as applicable, shall extend over and apply to said state until
changed by the legislature thereof."

¶132 The laws of Oklahoma, as far as applicable, shall extend over and apply to the state. Who
shall determine what laws are applicable to the state? If this clause of section thirteen is given the
interpretation placed upon it by the trial court, and as contended for by counsel for appellee, then
it is in conflict with section twenty-one, which says that the laws of Oklahoma shall be in force
throughout the state except as modified or changed by the enabling act or the constitution of the
state. Such an interpretation would reflect upon the intelligence of congress, and attribute to both
branches of that body a carelessness in the use of language which I am not willing to concede.

¶133 It is impossible to cut out a subordinate clause of a single sentence, disconnect it not only
from the sentence of which it forms a part, but from the entire subject in relation to which it was
used, and determine exactly what the speaker or writer had in mind, and the meaning intended to
be conveyed. Therefore, in construing this language relied upon as prohibiting this constitutional
convention from doing any act which may conflict with existing law, I insist that it be read in
connection with the whole of section thirteen. When so read its meaning is incapable of
misunderstanding.

¶134 Section thirteen deals with one subject, and with one subject alone. It divides the state of
Oklahoma into two judicial districts, designating the Indian Territory as the eastern district and
Oklahoma as the western. It provides the places where the circuit courts shall be held in these
respective districts. It attaches these districts to the eighth judicial circuit. It provides for the
appointment of clerks of courts, and other court officers, and defines their respective duties. It
declares that the circuit and district courts for each of said districts, and the judges thereof,
respectively, shall possess the same power and jurisdiction, and perform the same duties required
to be performed by the other circuit and district courts and judges of the United States, and shall
be governed by the same laws and regulations; that the marshal, district attorney, clerk of each of
the circuit and district courts of said districts, and all other officers and persons performing duties
in the administration of justice therein, shall severally possess the powers and perform the duties
lawfully required to be performed by similar officers in other districts of the United States, and
shall, for the services they may perform, receive the fees and compensation now allowed by law
to officers performing similar services for the United States in other districts of the United
States; and then follows the clause relied upon by the appellee, "And that the laws in force in the
Territory of Oklahoma as far as applicable, shall extend over and apply to said state until
changed by the legislature thereof."

¶135 Congress, when it used the language just quoted, was dealing with the courts of the United
States. It had just defined their jurisdiction and provided for all of those other officers necessary
to the administration of those courts, and by this clause a system of procedure was adopted for
the government of the United States circuit courts, until the present procedure of Oklahoma
should be changed by the legislature of the state. Congress had reason to believe that the general
laws of Oklahoma would be changed by the constitution of the state, and it was familiar with the
enabling act which it was then considering, and of which these provisions are a part. The
enabling act did not, and congress in the light of all precedents could hardly anticipate that the
constitutional convention would deal with mere matters of procedure in the courts; however, the
unexpected occurred, at least in one instance; but the fact that the convention changed the
generally accepted procedure in indirect contempt cases, in no way changes my mind as to what
congress anticipated, meant and intended by this latter part of section thirteen. The United States,
having no uniform procedure for its courts, has deemed it expedient to put in force in the courts
of the United States the procedure of the respective states in which such courts are located; and,
to comply with this usual custom, the laws of Oklahoma, as far as applicable, are extended over
and made to apply to the state.

¶136 Section 914 of the Revised Statutes of the United States 2nd. ed. 1878, provides:

"The practice, pleading, and forms and modes of proceeding in civil causes, other than equity
and admiralty causes, in the circuit and district courts, shall conform as near as may be to the
practice, pleading and forms and modes of proceeding existing at the time in like causes in the
courts of record of the state within which such circuit or district courts are held, any rule of court
to the contrary notwithstanding."

¶137 I also quote the following section from the United States Statutes, referred to above:

¶138 Sec. 915: "In common law causes in the circuit and district courts the plaintiff shall be
entitled to similar remedies, by attachment or other process, against the property of the
defendant, which are now provided by the laws of the state in which such court is held for the
courts thereof; and such circuit and district courts may, from time to time, by general rules, adopt
such state laws as may be enforced in the states where they are held in relation to attachments
and other process: Provided, that similar preliminary affidavits or proofs, and similar security, as
required by such state laws, shall be first furnished by the parties seeking such attachment or
other remedy."

¶139 Sec. 916: "The party recovering a judgment in any common law cause in any circuit or
district court, shall be entitled to similar remedies upon the same, by execution or otherwise, to
reach the property of the judgment debtor, as are now provided in like causes by the laws of the
state in which such court is held, or by any such laws hereafter enacted which may be adopted by
general rules of such circuit or district courts; and such courts may, from time to time, by general
rules, adopt such state laws as may hereafter be enforced in such state in relation to remedies
upon judgments, as aforesaid, by execution or otherwise."

¶140 Sec. 856: "The fees of district attorneys, clerks, marshals, and commissioners, in cases
where the United States are liable to pay the same shall be paid on settling their accounts at the
treasury."

¶141 Sec. 857: "The fees and compensation of the officers and persons hereinbefore mentioned,
except those which are directed to be paid out of the treasury, shall be recovered in like manner
as the fees of the officers of the states respectively for like services are recovered."

¶142 From these and other sections of the United States Statutes and the connection in which the
language under consideration was used, it is clear that congress was dealing with the laws of
Oklahoma in section thirteen of the enabling act only in so far as they might furnish a rule of
procedure or be binding upon the courts of the United States located within the state of
Oklahoma. And it is for the courts of the United States to say how far these laws are applicable
in matters pertaining to persons and property which may come before them. Section thirteen, like
the constitution of the state, has no life and force until the President issues his proclamation,
there being no circuit or district courts of the United States established within the purview of the
act in either of these territories, and doubtless will not be until we are granted statehood. I have
considered that part of section twenty-one of the enabling act which refers to the Osage Indian
Reservation, and requires that it constitute a separate county. The language used in reference to
this matter, while a limitation on the convention, in that it prevented it from making more than
one county out of the reservation, not only recognized the right of the convention to deal with the
subject of counties but in this particular instance required it to do so.

¶143 Being of the opinion that the convention has the right to divide the proposed state into
counties, we are confronted with the question of the election of county officers to administer the
affairs of such counties upon the admission of the state into the Union. The right to do so at the
election at which the constitution is to be voted upon is vigorously asserted on the one side, and
strenuously denied on the other. In this, as in the other questions involved in the case, no useful
purpose can be observed by long quotations from other decisions which in the very nature of
things can have but little bearing upon the interpretation of the enabling act.

¶144 As will be seen from investigation, different courses have been pursued by different states,
under practically the same conditions. I have examined the decisions cited by counsel on the
respective sides and believe I understand what those courts have decided, as well as the
contention of the attorneys; but, with due respect to all concerned, I am compelled under the law
to approve that theory or interpretation of these laws which appeals to my own reason, and reject
those which my conception of the application of legal principles suggest that I exclude.
Therefore, believing that a careful study of the enabling act itself will be most likely to lead to a
correct understanding of its provisions, I turn to it and find therein sufficient to inspire
confidence in the conclusion that county officers may be elected at this first election.

¶145 In section four of the enabling act it is provided:

"That in case a constitution and state government shall be formed etc., the convention shall
provide by ordinance for submitting it to the people."

¶146 Then section six, after dividing the state into congressional districts, ends with the
paragraph, "And the said representatives, together with the governor and other officers provided
for in said constitution, shall be elected on the same day of the election for the ratification or
rejection of the constitution; and until said officers are elected and qualified under the provisions
of such constitution and the said state is admitted into the Union, the territorial officers of
Oklahoma Territory shall continue to discharge the duties of their respective offices in said
territory."

¶147 I cannot conceive of language that would more clearly express authority to elect county
officers, if the constitution provides for county officers. Is there anything in the enabling act that
limits the constitution as to the kind, character number or dignity of the officers which it may
provide for in the constitution, except as to governor, secretary of state and members of the
legislature? Not being limited by the enabling act, the convention, in forming a state government,
not only has the right, but it was its duty to provide in the constitution for state officers, county
officers (For county organization has come to be regarded as necessary in administering the
affairs of a state) and such other officers as would be required for the convenience of the public
and the administration of the law. The constitution having provided for specific officers,
congress has plainly said, in the section referred to that "The governor and other officers
provided for in the constitution shall be elected on the same day of the election for the
ratification or rejection of the constitution."

¶148 Turning to section one and two of article seventeen of the proposed constitution I find the
following provisions:

"Section 1. Each county in this state, now or hereafter organized, shall be a body politic and
corporate.

"Section 2. There are hereby created, subject to change by the legislature, in and for each
organized county of this state, the offices of judge of the county court, county attorney, clerk of
the district court, county clerk, sheriff, county treasurer, register of deeds, county surveyor,
superintendent of public instruction, three county commissioners, and such municipal township
officers as are now provided for under the laws of the Territory of Oklahoma, except as in this
constitution provided."

¶149 These officers are provided in the constitution, and congress has commanded that they
"Shall be elected on the same day of the election for the ratification or rejection of the
constitution;" and if the people failed to elect all of the officers provided for in the constitution
they would, to the extent of such omission, fail to comply with the act of congress.

¶150 But it is said that the latter part of this same section authorized the territorial officers to
continue in office in the state until their successors are elected and qualified under the state laws
and that the language used amounts to a prohibition of election for such officers when the
constitution is adopted. This conception is not only erroneous, but no reasonable ground exists
for such an interpretation. Congress did not intend to impose the officers selected, either by
appointment or election under the laws of the United States or under its supervision, upon the
people of the state who, after the admission of the state, would have a right to make their own
selection. It not only did not intend to do so, but it probably would not have the power to do so.
When Oklahoma becomes a state (Not after the first election after the adoption of the
constitution, but from the very instant the President issues his proclamation) it has the
undisturbed right to administer its own internal affairs, and dictate its own officers. Congress has
clearly recognized these rights of the future state; but it is necessary to read the entire paragraph
together: "And said representatives, together with the governor and other officers provided for in
said constitution, shall be elected on the same day of the election for the ratification or the
rejection of the constitution; and until said officers are elected and qualified under the provisions
of such constitution, and the said state is admitted into the Union, the territorial officers of
Oklahoma Territory shall continue to discharge the duties of their respective offices in said
territory."

¶151 Now let us consider this language for a moment. First, the officers provided for in the
constitution must be elected on the same day of the election for the ratification or rejection of the
constitution: Second, until these state officers are elected and qualified, and the state admitted in
to the Union, the territorial officers shall continue to discharge the duties of their respective
offices in said territory. Congress by the provisions of the section under consideration,
contemplated a complete surrender and turning over to the state and its officers every thing to
which it or they would be entitled as a state fully admitted and standing on the same footing as
the other states. These observations, however, I perceive will not satisfy the appellee or his
counsel, as one other section of the enabling act which pertains to state officers has not been
considered. I refer to section twenty-one, which, so far as effects this subject, provides as
follows:

"Sec. 21. That the constitutional convention may by ordinance provide for the election of officers
for a full state government, including members of the legislature and five representatives to
congress, and shall constitute the Osage Indian Reservation a separate county, and provide that it
shall remain a separate county until the lands in the Osage Indian Reservation are allotted in
severalty and until changed by the legislature of Oklahoma, etc. * * * and shall provide rules and
regulations and define the manner of conducting the first election for officers in said county.
Such state government shall remain in abeyance until the state shall be admitted into the Union
and the election for state officers held, as provided for in this act."

¶152 The section then provides for the election of senators, etc., and then adds, "And the officers
of the state government formed in the pursuance of said constitution, as provided for by said
constitutional convention, shall proceed to exercise all the functions of such state officers."

¶153 There is no conflict between this section and section six which I have just considered.
While section six expressly provides that all officers provided for in the constitution shall be
elected when the constitution is voted on, it must be remembered that, while the convention can
create an office by the terms of the constitution, as said before, the constitution has no binding
force until the state is admitted into the Union; therefore congress conferred upon the
constitutional convention the powers to provide for the election of these officers by ordinance.
And an ordinance passed pursuant to the terms of this section, by the representatives of the
people of the proposed state in convention duly assembled, within the limitations imposed, has
from its passage, for the purposes intended, full life, force and virtue.

¶154 Mr. Jameson, in his work on Constitutional Conventions, (4th ed.) page 98, c. 103 says:

"Besides schedules, there are appended to many constitutional acts adopted by constitutions
called ordinances. Not all ordinances, however, are so appended, or have any direct relation to
the constitution. They are in their nature resolutions of the bodies adopting them, but taking the
name, ordinances, to distinguish them from the similar acts of legislative bodies, denominated
resolutions, which may be adopted by houses severally or jointly. Within the scope of the powers
of the convention, ordinances may be valid and effectual according to their terms and purpose. If
they are employed to provide for temporary emergencies of the convention, and do not transcend
the limits of its powers as defined or employed in the act calling it, they are valid."

¶155 The ordinance referred to is authorized by congress, and is the act of the people of the
proposed state, through their representatives, and is binding upon the people of the state, hence,
the state. This ordinance is the authority for the election. But for what must the ordinance
provide? The enabling act says: "For the election of officers for a full state government," and the
officers necessary for a full state government are all the officers provided for in the constitution.
The word "full" is defined as, "Containing or having all that can or all that should be admitted;
having no empty or vacant space; filled." And this is the sense in which the word was used in
section twenty-one. There should not be left out a single officer high or low. Each and all
provided for in the constitution should be elected when the constitution is submitted to the
people.

¶156 But, says the appellee, the section also provides that, "Said state government shall remain
in abeyance until the state shall be admitted into the Union, and the election for the state officers
held as provided for in this act." The only election for state officers provided for in this act (The
enabling act) is the election at which the constitution shall be submitted for ratification or
rejection. Therefore the language, "Until the state is admitted into the Union, and the election for
state officers held." must be interpreted as describing two events which are expected to happen in
the future, and the one intended to occur second in point of time, first described. Any other
interpretation of this language would defer the election of all state officers until after the
adoption of the constitution, which would be in direct conflict with another section of the
enabling act. The fallacy of the contention that county officers are not to be elected when the
constitution is voted upon, to my mind, is so apparent that under all of the provisions of the
enabling act, it would seem that further discussion is unnecessary.

¶157 First, after the assembling of the constitutional convention and complying with the
preliminary requirements of the enabling act, is the duty of forming a constitution and state
government: Next, the submission of the constitution to the people for ratification or rejection,
and on the same day the election of all officers provided for in the constitution: Then the action
of the President approving, if it conforms to the act of congress, and the issuing of his
proclamation admitting the state into the Union; and, finally in the language of the latter part of
section twenty-one of the enabling act, "And the officers of the state government formed in
pursuance of said constitution, as provided by said constitutional convention, shall proceed to
exercise all the functions of such state officers."

¶158 This brings us to a consideration of the powers of the constitutional convention to provide
election officers to hold the election in the new counties of Alfalfa and Major. These counties
were created out of a portion of the county of Woods and to that part of Woods county remaining
was added certain townships cut off from Woodward county and the name Woods county given
to it. Both Woods county and Woodward county are organized counties in the Territory of
Oklahoma. In considering this feature of this case, the facts that Alfalfa and Major counties are
located within Oklahoma Territory, and that they are merely creatures of the constitutional
convention, and never had any legal existence prior to its convening, should be borne in mind. A
majority of my brethren, speaking through Mr. Justice Hainer, have defined their position upon
this point, declaring as a law a rule which is, in my opinion, neither justified from the necessities
of the case or supported by the enabling act or other statutes of congress or the Territory of
Oklahoma. Gladly would I surrender any pride of opinion which I may have in my own personal
views of the law of this branch of the controversy, if I were able to reconcile the declarations of
the majority opinion with the plain and positive act of congress; but, after full consideration, I am
forced to reject them as unwarranted approval of an unauthorized usurpation of authority which
is by implication as positively prohibited by congress as though it had so declared in express
words.

¶159 I fully appreciate the years of earnest effort expended by the people of Oklahoma in
obtaining permission from congress to adopt a constitution, and form a state government, nor am
I unmindful of the public insistence for an opportunity to elect their own officers and have their
interests represented in congress by agents with full authority to vote. But important and sacred
as are these privileges, they must be brought about pursuant to existing laws, and not in disregard
thereof. I do not challenge good faith on the part of the convention or those who drafted the
ordinance in question, but taking it as written I consider its provisions not as a matter of choice,
but as a public duty required to be performed under the law. A majority of my brethern have
said, by their votes, that the election ordinance is within the authority conferred by the enabling
act. Coming from the highest court of the territory, the decision will doubtless inspire
confidence, in the members of the convention and the people generally, regarding the authority
to enact the same. But with a full realization of the consequences which may follow upon the
pursuance of a course in holding these elections in conflict with the provisions of the enabling
act, and entertaining views in conflict with the judgment of the majority of the court, my own
conception of justice compels me to at least declare those views, even though they have been
rejected by my brethern as not the law, and may be disregarded by the parties to the action.

¶160 In section 3 of the election ordinance adopted by the constitutional convention, it is

provided: "In the counties of Adair, Alfalfa." (Then naming other counties, including Major.)
"The local officers and authorities provided for in the ordinance, shall exercise all the functions
and perform all the duties within the limits of such counties, townships and voting precincts in
the same manner as is now required by the laws of the Territory of Oklahoma for election
thereon." In connection with section 3 we will refer briefly to certain of the other provisions
found in the ordinance. Section two declares that the election of the officers shall be held in
accordance with the election law of the Territory of Oklahoma when not in conflict with the
enabling act and as supplemented by the ordinance; that in the counties of Beaver, Caddo,
Comanche, Greer, Payne, Roger Mills, and Woodward, the local authorities in said respective
counties, and the voting precincts therein shall exercise their functions and perform their duties
as such election officers only within the limits of said counties as defined and described in the
constitution; that in the county of Noble the local authorities, in the exercise of their functions
and the performance of their duties as election officers, shall exercise and extend the same to the
limits of said county as defined in the constitution. Section six provides that in each of the
counties of Greer, Beaver, Woods, Woodward, and Comanche (and any other county in the
proposed state similarly situated) as defined and described in this constitution, on or before the
sixth day of June, A. D. nineteen hundred and seven, the acting board of county commissioners
therein or a majority thereof, shall subdivide such county or counties into commissioners'
districts and townships, and fix election precincts, and designate polling places, necessary for the
purpose of the election. And then the section provides that if the commissioners fail to comply
with the provisions of the section by a date named, then William H. Murray, as president of the
convention, shall appoint three qualified electors in each of the counties to divide such counties
into commissioners' districts and townships, and fix election precincts, and designate polling
places. Other sections provide that in the event of vacancies in certain county offices they shall
be filled by appointment by the governor; and in the event that he fails or refuses to make such
appointment or appointments, they shall be made by William H. Murray, president of the
convention.

¶161 All of these provisions were enacted under the alleged power granted by congress
authorizing the constitutional convention to provide by ordinance for the election of officers for a
full state government, and for submitting the constitution to the people of the proposed state for
ratification or rejection.

¶162 I shall not stop at this time to quote the law of Oklahoma pertaining to elections, or the
manner in which the officers of the territory, from the highest to the lowest, are appointed or
elected. It is sufficient to state, as is universally known, that Oklahoma was organized as a
territory in 1890. Since then it has had an election law, which, with the modifications and
changes made from time to time by the territorial legislature, is as complete and satisfactory as
will be found in any state. Congress but a short time ago had occasion to examine the provisions,
by reason of a contest before that body over the election of a territorial delegate. Anticipating
these very elections as a necessary step in securing statehood, it is fair to assume that the
members of the lower house, as well as the senators, familiarized themselves with our entire law
and system of elections. Its provisions having appealed to them as fair and sufficient, as a part of
the enabling act it positively declared, "That the election law of the Territory of Oklahoma now
in force, as far as applicable and not in conflict with this act, including the penal laws of said
Territory of Oklahoma relating to elections and illegal voting, are hereby extended to and put in
force in said territory until the legislature of said proposed state shall otherwise provide, and until
all persons offending against said laws in the election aforesaid shall have been dealt with in the
manner therein provided." This language authorizes no change or modification, by the
constitutional convention, of the election laws of the Territory of Oklahoma, in so far as their
application, within Oklahoma Territory, is concerned. The words "As far as applicable and not
inconsistent with this act" refer to the application of the election laws in the Indian Territory.
Taking into consideration the plain implication of the language used, the quotation above means
that the elections laws of the Territory of Oklahoma, now in force, shall continue in force in
Oklahoma Territory until the legislature of the proposed state shall change them, and that these
same election laws of the Territory of Oklahoma, as far as applicable and not inconsistent with
this act (the enabling act) are hereby extended to and put in force in said Indian Territory until
the legislature of said proposed state shall otherwise provide. Congress was familiar with the
conditions in Oklahoma, and declared that for the purposes of these elections they should
continue. Congress considered these laws applicable and fully adapted to meet the conditions.
No exception was made as to the Territory of Oklahoma, save in one instance which I shall
notice later. The continuing in force of these election laws of Oklahoma within this territory, not
only continued the laws themselves but also continued all the machinery and officers of every
kind and character provided for in these laws of Oklahoma, except as those laws might possibly
be in conflict with the enabling act. This view is so fundamental that reasoning to support it
appears unnecessary. However, I find the rule very closely stated by Chief Justice Burford in a
decision by him announced in one of these election cases, wherein he presided in the trial court.
Haines et al., v. Murray et al., and other cases, in the district court of Logan county. The Chief
Justice, referring to the language above, said: "I think it cannot be seriously questioned that in
adopting the (election) laws of Oklahoma that they adopted with them whatever machinery
existed under that law. The law creates certain officers, election officers, etc."

¶163 The exception to which I referred a moment ago, with reference to the election laws of
Oklahoma, is that part of section 21 of the enabling act, which provides, "That the constitutional
convention may by ordinance provide for the election of officers for a full state government, * *
* and shall constitute the Osage Indian Reservation a separate county * * and shall provide rules
and regulations and define the manner of conducting the first election for officers in said
county." It will be observed from the language that even in this Indian reservation, congress
having declared that the election laws of Oklahoma shall continue in force therein, limited the
constitutional convention in providing "Rules and regulations and defining the manner of
conducting the first election" for officers. As to what congress meant by the language "Rules and
regulations and define the manner of conducting the first election" I shall not here express any
opinion; but this language used with reference to this unorganized reservation must be limited to
it alone, and neither it or any other language used in the enabling act can be construed to mean a
grant of authority for removing public officers elected by the people, or appointed by the proper
authority. I have said heretofore that the constitutional convention has the right and power to
divide the future state into counties, even though such division may not conform to the county
lines as now established in the Territory of Oklahoma, and that it also has the right to elect a full
complement of officers for each county at the election for the ratification or rejection of the
constitution; and I have also tried to make it plain that these proposed counties can have no
existence, in law, and cannot be recognized as political sub-divisions of the state, having a
present existence so as to oust the officers duly elected or appointed, under the laws of the
Territory of Oklahoma, from the discharge of any duty imposed by those laws; for not only are
the election laws of Oklahoma continued in force until changed by the legislature of the future
state, but the enabling act itself in positive terms provides. "That until said state is admitted into
the Union, the territorial officers of Oklahoma Territory shall continue to discharge the duties of
their respective offices in said territory."
¶164 These counties proposed by the constitutional convention whose boundaries are fixed by
the constitution to be submitted to the people, are simply counties in future, and the officers
provided for in the constitution can exercise no official duty until after the admission of the state.
The election at which the constitution is to be submitted for ratification or rejection, and at which
there shall be elected officers for a full state government, is to be, under the terms of the enabling
act, conducted in the usual way under the laws of the Territory of Oklahoma. And the
constitutional convention cannot confer upon these election officers any powers which they do
not now enjoy, or take from them any they now possess. Nor can the convention limit the
exercise of the powers of these county officers within a proposed county composed of less
territory than that for which they were elected, or extend their jurisdiction beyond the lines of the
county as now organized, in which their duties under the territorial laws are to be discharged, and
for which they were chosen.

¶165 It is argued, and with some force, that the election laws of the Territory of Oklahoma, as
they now exist, are not exactly applicable to the conditions in the new counties, as they are
proposed to be organized in the state. This may be, and it is possible that the convention, as a
necessary incident to electing the officers in these new counties, may have to provide by
ordinance to meet the conditions there existing; but whatever ordinance is passed by the
convention, it must be in aid of the law as it now exists and not in conflict therewith or
destructive thereof. Nor has the convention the power to take away from the present election
officers in Oklahoma the right to hold these elections, and confer the power to perform their
duties on others. The fact that the forming of new counties may present some embarrassment in
the holding of the election is a matter of regret, but it is no excuse or justification for ignoring the
law. Whatever difficulties are presented by the reason of the forming of these new counties, are
the results of the acts of the convention itself, and for which congress is in no way responsible.
The convention should seek for plans under which it may submit its propositions to the voters
under the laws as they exist, and not to make the laws conform to the conditions which it is
sought to bring about as a result of the election. Congress authorized the forming of a
constitution. It not only authorized the election of the state officers, but required them to be
elected at the election at which the constitution is submitted to the people. It, within certain
limitations, has left the convention free to make the kind of a constitution it might desire, and to
create as few or as many offices as it might deem expedient, but has in effect named the officers
of the territory as the agents to discharge this important duty, and made the laws of the territory
the rule of conduct.

¶166 The election officers of Woods county, as now organized under the territorial laws, should
conduct the election within that county, in that part composing Alfalfa county, and in that part
composing Major county, as well as that portion which in the future state will constitute a part of
Woods county. Their jurisdiction is in the whole of Woods county as now organized, and no
more. These men are still in office. They have not been removed. Nor has their county yet been
changed. Should statehood fail the county organization will continue under the territorial
government as before. By virtue of what right can the jurisdiction of these officers, in such a
contingency, be temporarily suspended except as to a small part of the county, and then restored
if the constitution should not carry? And again, why should the convention confine the
jurisdiction of these county election officers to that part of Woods county, Oklahoma, that will
form a part of Woods county in the state, without regard to whether the officer lives in that part
that will be Alfalfa, Major or Woods? Counsel should not forget that these election officers are
holding these elections under the provisions of the enabling act as officers of the Territory of
Oklahoma, for the people of this territory, bound by the oaths prescribed by its laws. And if the
convention can remove the county election officers from a part of a county as now organized, it
can remove them from exercising any act in connection with the holding of the election in any
part of the county for which they have been elected, and extend these same methods to every
county in the state, and even take away from the governor and the secretary of the territory the
power to perform the duties enjoined upon them. The supreme court of Pennsylavania and other
states have held that this cannot be done.

¶167 The constitutional convention of Pennsylvania, assembled by virtue of authority of the

legislature, by ordinance appointed five commissioners of election for the city of Philadelphia.
An election law was then in force and applicable to that city. The supreme court of that state, in
positive language, held, in the case of Wells v. Bain, 75 P. St. 39, that the convention could not
prevent the regular election officers from holding their election. The court said:

"Now we come to the sixth section, which begins a different subject. 'The election to decide for
or against the adoption of the new constitution, or specific amendments, shall be conducted as
the general elections of this commonwealth are now by law conducted.' Thus the legislature said
to the convention in these three sections--You shall have power to propose your work in three
forms; you shall have power to determine the time and the manner in which these propositions
shall be submitted; but the election by the citizens shall be conducted as the law itself directs as
to general elections. The 6th section, as to how the election on the propositions submitted shall
be conducted is mandatory, and is so for the best of reasons--it is the only legally authorized
means of taking the sense of the people upon adoption of the amendments which can bind the
whole people. In this way only can a majority of voters, who are not a majority of the people,
bind them as the body politic or state. The legislature intended that the election should be
conducted by known officers legally elected, and should be governed by a known system of laws
with which the people are familiar, and thereby that they should both know and respect the
authority under which the election should be held. No implication can be drawn from the word
'manner' to contradict the plain and positive enactment that the election shall be conducted
according to the laws governing general elections. It would violate the plainest rules for the
interpretation of statutes to make the merest inference stand higher than an intent expressed in
distinct language. It is, therefore, clear to our minds that the ordinance relating to the election in
the city of Philadelphia is flatly opposed to the act of 1872, and is thereby illegal and void. The
prospective validation in the 32d section of the schedule only betrays the doubt the convention
itself had of the validity of the ordinance in this respect."

¶168 Counsel, by law of argument, have referred to the conditions in the Indian Territory, and
the necessity of recognizing the counties, as fixed and described in the constitution, for the
purpose of holding elections there, and by reason of that condition and the conditions brought
about on the Oklahoma side on account of the making of new counties, the right to recognize all
counties as described in the constitution is claimed. The counties in the Indian Territory may be
recognized, if at all, for the purpose of these elections merely. They are not yet counties, but
districts for the holding of the elections. And even as to these counties I find that the election
ordinance neither creates them counties or districts for the purposes of the election, but simply
refers to them as the counties of ...., naming them. Indian Territory, however, is not situated like
Oklahoma. The language of the enabling act is "The election laws now in force". That is, as they
then existed, and not as they may be changed by the legislature of the territory, or as the counties
may be cut up by the constitutional convention, but as they exist now, with all the legal officers
provided in the statute, or their successor elected thereunder. The election laws "now in force"
are to be used by the people of the territory to hold a territorial election to determine if they will
adopt a constitution which has been prepared by a constitutional convention for a state to be
composed of both Oklahoma and Indian Territory; and congress has said that these same laws
"Now in force, as far as applicable" shall be extended to and put in force in the Indian Territory.
This provision, for the purpose of elections, subjected the Indian Territory to the laws of
Oklahoma, with the advantages and difficulties its provisions might grant or impose. And
congress recognized these elections as elections under existing government, for has it provided
that the penal laws of the Territory of Oklahoma relating to elections and illegal voting, shall be
put in force in the Indian Territory, and that the United States courts of the Indian Territory shall
have the same power to enforce the laws so adopted? No; but the laws of Oklahoma, extended to
and put in force in the Indian Territory as have the courts of the Territory of Oklahoma. If the
laws are violated in holding these elections, is it a crime against the laws of the Territory of
Oklahoma, or the future state? To the lawyer the question answers itself. Such crimes must be
prosecuted under the election laws of the Territory of Oklahoma as they now exist, and the state
courts, if they acquire jurisdiction of such crimes at all it will be by virtue of succession under
the enabling act, as the laws of the future state cannot be broken before they are enacted and put
in force. The convention cannot legislate regarding the election laws of Oklahoma any more than
it can regarding criminal procedure for its courts. It certainly cannot divide the counties of
Oklahoma, giving to the proposed counties present existence for any purpose which right at least
a part of my brethern who have concurred in the majority opinion denied the legislature of the
territory. The convention cannot justify its conduct in seeking to interfere with the present
officers even on the ground of necessity, for it brought about whatever inharmony exists.

¶169 To justify the policy sought to be followed in Woods county regarding the county election
officers, in excluding them from exercising their jurisdiction in that portion of the county from
which Alfalfa and Major counties are proposed to be created for the future state, reason and
justice must give away to desire; and, to hold the ordinance as valid, in my opinion the law of the
nation must be subordinated to the will of a temporary agency created by congress as a
convenience in transforming a territorial to a state government. The convention has not only
sought to limit the powers of these officers, but by the language used have imputed lack of
confidence in their fidelity in the discharge of a future duty, by declaring that if they fail or
refuse to perform any of the acts enjoined upon them by law, others should be appointed in their
place. In certain instances they are to be made by the governor, and if he should fail or refuse to
make such appointments, then they are to made by a member of their own body. The convention
has no more power to appoint another to perform an official duty enjoined upon the governor by
the territorial laws regarding elections, even though he refuses to discharge it, than they have to
authorize another to approve the constitution and issue the proclamation should the President
refuse or fail to do so. These different officers belong to different political parties, and are
representatives of our best citizenship, and a residence of sixteen years in the Territory of
Oklahoma has not brought to my attention an instance of an election officer refusing to perform
any duty enjoined upon him as such, except when the duty to perform the act was uncertain, or in
controversy, and he declined in order that a judicial determination might be had upon the
conditions presented. Wherever any officer in Oklahoma fails to do his duty he may be removed
from or compelled to perform it. But this power of removal, or power to compel performance of
official acts, is independent of the convention, and not being the source of such power it cannot
delegate the same to one of its members or anyone else.

¶170 And again, it is a well known fact that the ordinance as it now exists is not the ordinance as
originally passed by the convention. It re-assembled and enacted a new ordinance. By upholding
the present ordinance this court has necessarily recognized that the convention had a right to do
so. This right having been approved by the court, if the convention desires, may it not re-
assemble again and divide even all of the other counties of Oklahoma Territory, put into office
those of its own selection, and remove those holding under the existing government, even though
they have done no wrong or are willing to continue to discharge their official duties with
faithfulness and integrity.

¶171 I was deeply impressed by counsel (As well as briefs) in the presentation of the theory, that
the limitations in the enabling act upon the powers of the future state, once the state is admitted,
will not be binding upon it, even though the convention has declared by ordinance irrevocable to
accept the terms of this act of congress. Still I do not perceive that this doctrine has any bearing
under the present conditions, in the adoption of a constitution, except that whatever terms
congress has imposed I assume a declaration, at least, of intention to comply with them will be
required. But whatever may be the intention regarding the policy of the future state, those things
which are required as conditions precedent to admission, and the means by which they are to be
effected, should conform substantially to the requirements of the enabling act.

¶172 The courts of the Territory of Oklahoma cannot have any thing to say about a constitution
of the state, or as to what it shall contain, as its provisions affect the state government, and do not
apply to territorial conditions. It will create its own courts to interpret its own laws. But as
congress (Having the power to admit states) has prescribed the procedure to be followed in
bringing about the change from a territory to statehood, and all the laws applicable thereto are
either laws of the United States or of the Territory of Oklahoma, the courts of the Territory of
Oklahoma have the jurisdiction to determine if any of the persons or officers are exceeding their
lawful powers, or interfering with the right of others. The convention itself is the creature of law,
whose powers are fixed by law; and while the convention may make its own constitution, the
courts have the power to require those whose duty it is to submit it to the people, and to conduct
the election of the first officers for the state, to perform these duties as the law directs. And
although it has been argued that no one can interfere in those matters except the President, and
that he can only determine if the constitution and state government are republican in form, the
enabling act itself imposes upon that high officer the further duty of determining as to whether or
not the provisions of the enabling act have been complied with; and one of the requirements of
the act of congress is that the election laws of Oklahoma, now in force, be respected and its
provisions carried out in voting upon the constitution and in electing the officers for the state,
through the election officers named in such election law, acting unmolested within their
respective jurisdictions. And when these provisions are violated or in a way invade the rights of
others, either private or official, and under circumstances which may even jeopardize the
approval of the constitution itself, the courts should, on proper application, interfere. This
authority is vested in the courts for the safety and protection of the rights of citizens, and the
protection of the public officers in the discharge of the duties enjoined upon them, whether those
injuries have been inflicted or are threatened in the future, while the President, under the
authority conferred, must wait until the elections have been held and the constitution finally
submitted to him.

¶173 The laws should be so construed as to protect existing rights, and deny the advantage of
present or threatened wrongs, for justice cannot always be subserved by denying the advantages
of a wrongful act.

¶174 The plaintiff in this case, as commissioner of Woods county, under the law, has important
duties to perform in connection with these elections. He has shown by his bill that the defendants
threaten to and will interfere with him in the discharge of his duties. Under the record as I view
the law, there being no controversy about the intention to do the acts complained of, I believe the
plaintiff is entitled to an order enjoining the defendants (plaintiffs in error) from in any way
interfering with him as a public officer in the discharge of those duties imposed upon him under
the election laws of Oklahoma. I shall not prolong my discussion of this case by reviewing
authorities showing that the court will enjoin an unlawful interference with a public officer in the
discharge of the duties of his office. The appellee's right to relief, to the extent indicated, is clear,
and the court should be quick to prevent the threatened wrong. Every one will concede that
insubstantial irregularities in these elections should be overlooked. But the extreme advantages
that might be taken under the decision of the court are so great, that the present election officers
may be removed at will and the positive act of congress continuing in force the laws of
Oklahoma at the time of the passage of the enabling act, with immunity ignored. It is not
sufficient to say that it will not be presumed that a public officer will abuse the authority
conferred. The mere fact that he can, under powers granted, lawfully destroy the rights of others,
should he choose to do so and no agency can interfere, is sufficient cause for alarm. The
ordinance of the convention can no more restrict the jurisdiction of appellee in this case, in the
exercise of his duties in the county of Woods, as now organized, to a small portion thereof, than
it can effect the jurisdiction of the judge of the district court and compel him to recognize the
counties of Alfalfa and Major in the administration of his office. The office of the judge was
created by congress, and congress, by declaring that the election laws in force should control
these elections, made the jurisdiction of the latter in the exercise of his duties regarding these
elections, as sacred as the former in administering the laws.

¶175 My examination of the election ordinance has convinced me that the convention did not
proceed upon the theory that any of the election officers, even in the counties that have not been
divided, would act in these elections by virtue of their present offices, but that the ordinance
named them as a matter of convenience, reserving the right to remove should they fail or refuse
to act. No lawyer representing the appellants has asserted that the convention has such power. If
the convention proceeded upon the presumption that it had the power to appoint all of these
officers, then the greater the reason for the interpretation of the law for which I contend.

¶176 I do not contend that the courts have the authority to enjoin the convention from the
performance of any act with reference to submitting to the people, propositions separately, or as
a part of the constitution as a whole, or from passing any ordinance; but whenever the officers of
the convention or others acting under authority claimed to have been conferred by such body,
interfere or threaten to interfere with the officers of the Territory of Oklahoma in the discharge of
official duties enjoined upon them by the enabling act in relation to the submission of such
constitution to the people, that is in relation to the election, for its adoption or rejection, and the
election of the first officers for the state, which are to be selected at the same election, the courts
may sustain said wrongful acts and protect the territorial officers in the undisturbed discharge of
said duties.

¶177 The defense that the interference complained of is too remote, is not urged, but on the
contrary the parties to the action have requested a determination of the rights of the respective
parties, under the facts stated in the petition, and I have considered the case with the view of
settling the law applicable to the facts pleaded. The parties to the case have presented it as
though the threatened interference complained of were imminent and I have given my views of
the law accordingly.

¶178 I have refrained from expressing my opinion as to the course authorized to be pursued by
the convention regarding the Osage Reservation. That reservation is not directly involved in this
case. Nor have I attempted to discuss the powers of the convention pertaining to the Indian
Territory. In that part of the proposed state, are courts clothed with powers equal with those
possessed by this court, and propriety forbids an unnecessary declaration of the law upon a state
of facts which is not before this court in this case, and in which if any controversy should arise at
all, it would most likely arise in the jurisdiction of the courts of the Indian Territory. My
reference to these two sections of the proposed state have been such, and such only, as appeared
to me necessary to make clear my position in the case before us.

¶179 The right of franchise is a most sacred right, and the law is universal that only those duly
authorized can conduct elections. If my view of the law is correct, the most serious
complications might arise by reason of the course that is being pursued, and the results of the
election changed.

¶180 The court, in the present case, has not been slow to assert its own power and jurisdiction;
and I believe that the right of the election officers of the organized counties of Oklahoma are
equally as sacred; that they are threatened with an unlawful usurpation of their powers, and that
the court should afford its protection.

¶181 But notwithstanding my own personal views as to the rights of the appellee, as herein
expressed, a majority of my brethren have denied the plaintiff any relief. Their decision has
become the rule and guide of conduct, and with a full realization of the wrongs that might be
committed under the powers thus approved, but hoping that only good may flow from a wise and
just exercise of the same, I accept it as the law, charged with the duty of respecting and enforcing
it, as the only safety of the state and the nation is in full, free and complete submission to the law
when by the proper authority so declared.

¶182 Dissenting Opinion by

¶183 IRWIN, J.: As I am unable to concur in the views expressed by a majority of the court, I
think it is proper that I give some of my reasons for differing from the views expressed by my
associates. The decision of this case turns entirely upon two legal propositions:

First: Did the constitutional convention have power and authority to divide Woods county?

Second: Is the election ordinance provided by that convention a valid and legal exercise of
authority, and is the same binding upon the people of the two territories?

¶184 In determining the first of these propositions, it should be constantly borne in mind that
there are recognized by our laws two distinct classes of constitutional conventions. The one
known and designated as revolutionary, that is, where the people meet in their sovereign
capacity, and by themselves, or their representatives, form a constitution and government at the
time existed. In such cases, the only limitation of the authority of such a convention would be
those principles of natural justice and the rules of civil society which the wisdom of the past had
dictated, and the general customs of mankind so long established as to become recognized as
legal precedents. The other class is a constitutional convention which is called into being by a
legislative enactment, by which enactment its authority is granted, and the limitations upon its
acts fixed. Of such a class is the constitutional convention in this case. It owes it origin to the
passage of the enabling act. It derives its authority solely from the act of congress defining its
powers and providing for its creation. In determining the duties imposed, and the powers granted
to this convention, we must look to the precedents and the judicial decisions applicable to the
conventions of this class, rather than to that of the revolutionary class, the latter not being
applicable to this class of conventions, and consequently, of but very little assistance to us. This
convention owes its existence to the act of congress known as the enabling act. This is its charter
of authority to which we must look to determine whether the convention has certain powers and
authority. The legislative intent of congress is clearly set forth in the enabling act, and by that,
the action of the constitutional convention must be measured and circumscribed. The people of
these two territories were not meeting in their sovereign capacity for the purpose of forming a
state government where no government had heretofore existed, or to adopt a constitution without
the restrictions or limitations of any superior or higher form of government, but rather they were
petitioning a government already established, for the privilege of becoming a part of that
government already organized. The terms and conditions of our admission as a part of that
government were not to be dictated by the people of these two territories, but rather by the
representatives in congress of the people of the United States. The terms and conditions of our
admission were clearly set forth by congress in the enabling act. The constitutional convention
being the representative agents of the people of the Territory of Oklahoma, when in convention
assembled, were the creation of the enabling act, and whenever any part of the constitutional
convention is called in question, or their authority doubted, we must look to the enabling act, and
examine its terms and provisions to determine the question of authority or power. In order to
clearly understand the scope of the legislative will, it is necessary to constantly bear in mind the
object that congress had in view, and the condition with which the legislative enactment was to
deal. The express provision of this enabling act was that the constitutional convention was
authorized to form a constitution and state government for the new state. If the authority to
divide Woods county is given in express terms any where in this enabling act, it must be in this
provision. "To form a constitution and state government for the new state." Unless it can be
found in this provision, then it does not exist in express terms, and we must look for it among the
necessarily incidental powers conferred upon the constitutional convention by the enabling act,
for in these two classes of power are expressed all the power and authority granted by congress
to that convention. Any authority exercised by this convention must be found either in the
express terms of the enabling act, or must be found in the necessity for their existence in order to
carry out the power expressly given by congress to the constitutional convention. The
constitutional convention was called upon by congress to perform a certain, specific, expressed
mission. That was, to change the territorial form of government which had heretofore existed in
these two territories, and form such government into a state government. They were called upon
to change the form of government, not to change the map, unless such a change in the map
became a necessary incident to the formation of a state government from these two territorial
governments. At the time of the passage of this enabling act, county, township, school,
municipal, city and village governments existed in a large portion of these two territories, had
been heretofore created by an act of congress, and had been recognized by congress since the
time of the adoption of the territorial form of government. As a necessary incident to such
organized government, there were certain vested duties, rights and obligations attached. We do
not believe it was the purpose of congress to unnecessarily overthrow this government and annul
and set aside these vested rights, but rather it was the intention of congress that the change of
government, if possible, should be accomplished without affecting or disturbing these vested
rights. An act of the constitutional convention which can be classed as purely a legislative act
must find its authority in the enabling act. At best, the constitutional convention could only be
classed as a very limited legislative body, limited with the prescribed boundaries provided by the
enabling act. I hardly think it can be seriously contended that the language of the enabling act
"To form a constitution and state government for the new state" would be broad enough to
authorize an arbitrary wiping out and obliterating of county lines, and the cutting up and dividing
of counties already established by the acts of congress. "To form a constitution and state
government" would only mean to do such acts as were necessary to accomplish this purpose, that
is, they would be delegated authority to do such acts as were necessary to form a constitution and
state government. Now, unless it can be said that a state government could not be formed without
the dividing of Woods county by the constitutional convention, then this provision, "To form a
constitution and state government" would not confer upon the constitutional convention power to
arbitrarily divide Woods county. It would hardly seem reasonable that the congress of the United
States would vest a subject of such vital importance to the particular localities affected, in the
hands of a constitutional convention which was chosen for a particular purposes, and for a
limited time; a body from whose action there was no appeal, and for an abuse of the discretion
there was no remedy; a body over which neither the president, governor, nor anybody else had
any particular vetoing power as to their action in dividing counties; and to allow that body to
arbitrarily divide such counties as in its individual judgment might be deemed advisable, to
submit that question to a vote of people who, being remote from, were not intimately or
particularly interested in the subject, and put it beyond the power of the vitally interested persons
to help themselves, when such an action was not absolutely necessary for the purpose of
establishing or forming a state government. It can be readily seen that in the division of Woods
county, the people most vitally interested would be the people of Woods county. And, note the
manner of submitting this question of division to the people. It is submitted, as is proposed, at the
same time the constitution of the state is submitted, and submitted to a vote of all the people, and
even if every man, woman, or child in Woods county should register their vote against it, it
would probably make no difference in the result. Thus all the interests of the people of Woods
county, all their vested rights, duties and obligations as a county are set aside, changed and
disposed of without their consent, and without any power to help themselves. This, it seems to
me, was unnecessary, and was foreign to the purpose of congress.

¶185 In this connection it might be argued that it was expedient to divide Woods county, that the
county was too large, and that the best interests of the people of the new state would be served by
making two or three counties out of Woods, but it seems to me it can hardly be said that it is
necessary in order to form a state government. It would hardly be said that a government could
not be formed leaving Woods county as it was established by act of congress. The most that can
be said is that it would be more expedient in forming a state government, to divide Woods
county. But, it would seem that even with this view of the case, it would seem reasonable for
congress to leave that to the legislature of the new state when organized under the restrictions,
limitations and checks provided by law, and that the question of the division of Woods county
would more properly and justly be submitted by the legislature of the state of Oklahoma, to the
citizens, residents and tax- payers of Woods county, than to make the rights and interests of
Woods county depend upon the vote of the people of the eastern part of the Indian Territory, a
people who have no intimate personal interest in that question. Another very strong reason why I
think that congress did not intend that the constitutional convention should unnecessarily disturb
county boundaries, or change the lines of counties already established, is that I find in section 21
of the enabling act; that congress expressly provides that the Osage Indian Reservation shall
constitute a separate county, and provides that the constitutional convention shall so provide by
ordinance. Section 21, provides that "The constitutional convention may by ordinance provide *
* * * and shall constitute the Osage Indian Reservation a separate county, and provide that it
shall remain a separate County until the lands in the Osage Indian Reservation are allotted in
severalty, and until changed by the legislature of the state of Oklahoma." Now if the contention
of the majority of the court is sound, and it was the express intention of the congress of the
United States that the constitutional convention should have power to divide and organize
counties at will, to establish county lines and county boundaries where ever they saw fit, and that
this authority was given in express terms by the language used in the enabling act, "To form and
constitute a state government for the new state" then why should congress in this section 21, of
the enabling act, make express provision that the constitutional convention should have power to
make and organize the Osage Indian Reservation into a separate county? It does not seem that
congress would do a useless thing or use useless language, or language that did not mean
anything. What possible meaning could the language used in section 21 of the enabling act,
authorizing the constitutional convention to make the Osage Indian Reservation a separate
county have, providing the enabling act in the language, "To form a constitution and state
government for the new state" granted and conferred the power to the convention to change lines
and county boundaries whenever they saw fit? If they had that general power, would it not
extend with equal force to the Osage Indian Reservation as well as to any other part of
Oklahoma? I cannot conceive any reasonable purpose that the congress of the United States
would have for using the language used in section 21, of the enabling act, providing the granting
of power to change and locate county lines is as contended for by the majority of the court; but
rather I think it argues that the congress of the United States never intended that county lines
should be changed, county boundaries established, or counties organized, except where such
establishing and organization of counties and changing the county lines were necessary in order
to form a state government for the new state. It is not necessary that in this opinion I express any
judgment as to whether in the unorganized part of the Indian Territory the constitutional
convention had or had not power to organize the counties. For the purpose of this opinion, it
might be conceded that they had that power, because the organization of counties out of
unorganized territory was necessary in order to make a complete state government, but it
certainly seems that where the county lines are already established, the county in existence, the
county officers in the discharge of their duty, and all the machinery of the county government in
force and in active operation, that no absolute necessity can exist for the changing of these
county lines, or the cutting up of these counties into separate counties in order to form a state
government, and unless it can be said that a state constitution could not be formed, and a state
government could not be organized without the dividing of Woods county, then there is no
express authority contained in the enabling act authorizing such action on the part of the
constitutional convention.

¶186 It might be contended that the provisions of section 21 of the enabling act authorizing the
convention to constitute the Osage Indian Reservation one county, and preserving the same as
such until all lands have been allotted, and until changed by the legislature, is recognizing the
right of the convention to recognize counties, but it should at the same time be remembered that
the Osage Indian Reservation is unorganized territory, and is attached to another county for
judicial purpose. It has no existence as a county, and depends for its power to discharge its
functions as a county upon its being attached to another county. No rights are vested, and no
obligations are incurred by reason of the establishment of county boundaries therein, and it might
reasonably be argued that as a county is a necessary component part of a state, and as no county
here existed, it was necessary to form a county in order to form a state government, but this
argument would not apply to Woods county, where the county was already formed and in
existence. If the power to divide Woods county is given by express terms in the enabling act,
then it applies to all parts of the two territories, organized as well as unorganized territory; and
when this is once conceded, there is no limitation to the exercise of the power, and the matter is
left entirely to the will of the convention. If the power exists, it is an unqualified, unlimited
power, and only circumscribed by the constitution of the United States. Congress reserved to
itself no power or authority over the acts of the convention, except that it requires that the
constitution when formed and adopted shall be submitted to the President, and the only power or
authority he has in the premises is to determine first, that it is republican in form, and second that
it is not repugnant to the constitution of the United States and the principles of the Declaration of
Independence. The constitution might be so worded and so formed as to comply with all these
requirements, regardless of whether Woods county was left as one, or divided into many. And,
under the provisions of the enabling act, it would not be the duty of the president to inquire into
the power of the constitutional convention in dividing or refusing to divide counties. His only
duty would be to see to it that it complies with the constitution of the United States and the
Declaration of Independence, and being republican in form, would meet the requirements of the
enabling act. Remember, that in this case, the sole contention is not that the constitutional
convention have not complied with the terms of the enabling act, but that they have done more,
have gone beyond the terms of the enabling act, and done things unauthorized by the act. And, if
this contention can be maintained, there is no doubt as to the duty of the court to restrain such
action. But, if the courts do not act, then there is no power of restraint upon this convention
given. If it is true, as contended for in the majority opinion, that this convention has unlimited
power to divide at will the counties established and in operation in Oklahoma Territory and that
with the exercise of this power the courts have no jurisdiction to interfere, suppose that if any
reason, political expediency, or for any other reason, the constitutional convention should
conceive the idea that Oklahoma county or Logan county should be changed or divided, and
suppose they should ordain that a line should be drawn defining the boundaries of Oklahoma
county so that Oklahoma City should be placed one-half in Cleveland county and leaving the
other half in Oklahoma county, and so as to put one-half of the Capital City of Guthrie in
Kingfisher county, and the other half in Oklahoma county, and thus entirely obliterate from the
map of the county of Logan, would it be contended by any one that this was an exercise of
authority legally vested in the constitutional convention by the words of the enabling act "To
form a state constitution and state government for the new state"? It might be said that this is a
very extreme case, and one which would not be likely to occur. Concede this, is it not one which
is within the power vested within the constitutional convention by the enabling act, if the
construction of the majority opinion of this court is a correct statement of the law? Is there any
different rule that would apply to Logan county, or to any other organized county in this
territory, than that which would apply to Day county, and is this not what has been done by the
constitutional convention in this case of Day county. It seems to me this would be an exercise of
authority more arbitrary than has ever been recognized in any body since the organization of this
county, a power greater than that possessed by congress themselves, and a power which the Czar
of Russia in his palmiest days would never have arrogated to himself, and one which in my
judgment the congress of the United States never intended to be vested in stay man or set of men.
Now the writer of this opinion might subject himself to the criticism of being called an extremist,
but is it not within the power vested in the constitutional convention by the enabling act as
construed by this court? The illustration used is used only for the purpose of showing the
extremes to which the doctrine laid down by this court in the majority opinion might be carried.
But, it may be argued that an exercise of authority arbitrary as this, and such a division so
manifestly unjust would not be approved by the people of these two territories when submitted to
them, but in this connection it should be borne in mind that this proposition of the division of
counties is to be submitted with and as an integral part of the constitution itself. No provision is
made whereby a vote can be taken upon the proposition separate from that on the constitution,
but before the people could express their disapproval of such a county division, they would be
driven to the necessity of voting against the constitution, and defeat the very purpose for which
this constitutional convention was organized. There is no way pointed out by which this county
division, however absurd it may seem to be, or how unjust it may be, can be defeated at the polls
without defeating the constitution itself. And, if the opinion of this court is correct, that this court
has no power to restrain the constitutional convention in the exercise of authority in dividing
counties, and the enabling act only places it within the power of the President to determine
whether the constitution as formed is republican in form, and not repugnant to the constitution of
the United States and the principles of the Declaration of Independence, where would there be
any relief against such arbitrary action on the part of the constitutional convention? It has never
been the policy of our law to vest arbitrary power in any body without surrounding and
safeguarding it by limitations and checks. No legislature has ever been authorized to act without
a veto power, or some check or restraint being placed on them by the act of their creation. But,
under the view taken of the power of this constitutional convention, here is the only body known
to the law that has unlimited, unqualified and unquestionable power --a creature greater than its
creator, a stream higher than its source and a power which recognizes no rights and no authority
save and except its own sovereign will, and that body authorized to formulate fundamental
principles, establish government and make laws for a million and a half of the most enlightened,
and intelligent people on the earth. It seems to me the courts should proceed with great caution
and hesitation before announcing a doctrine so far reaching in its effects, and so sweeping in its
results.

¶187 But it is argued by counsel for plaintiff in error that the division of counties, and the
location of the county lines complained of is not permanent, but are only propositions to be
submitted to the people for their ratification, and that therefore, no great harm can be done, no
rights endangered and no hardships suffered by any one, because the will of the people when
expressed at the ballot box is a sufficient safeguard to protect the rights of all. This is no doubt
true as a general proposition, and the writer of this opinion has no doubt that the honest
expression of the people of these two territories would be a sufficient safeguard to protect the
rights of all if this matter could be submitted to them in such a way as to get their honest
judgment. But, we must bear in mind the manner in which the action of the constitutional
convention in dividing organized counties is to be submitted to the people of the state of
Oklahoma for their ratification or rejection. It is not submitted in the same manner that the
question of prohibition is submitted, as a separate proposition, to be voted on independently by
the people, but it is incorporated in and becomes an integral part of the constitution itself, and is
only submitted to the people for their approval or rejection as a part of the constitution. Every
voter who votes upon this question is compelled to either express his approval of the action of
the convention in dividing the or-ganized counties, or vote against the constitution. There is no
way provided whereby any elector can express his honest sentiments on the question of dividing
or not dividing these counties without sacrificing his right to express his preference for the
constitution. Would any person insist that where a matter of his own personal rights was
involved, that the submitting of the question to the people for their approval in this manner
would be an honest way of getting the fair, unbiased, unprejudiced expression of the people on
the question? By this manner of submission, every man who desires state government, and who
desires that this county have the benefit of statehood, must vote for the ratification and approval
of the acts of the convention in dividing these counties, or he must lose his vote in favor of
statehood. No matter what his convictions may be as to the right or wrong of this county
division, and no matter what his sense of justice may be, if he desires to vote for statehood he
must at the same time express his approval of the action of the constitutional convention in
dividing these counties, whether such action meets his approval or not, and I submit that this
manner of submitting the question is not one likely to secure a fair, unbiased and unprejudiced
expression of the people on the question. It is submitting the question of the division of counties
and the establishing of county lines to a people who from their remote residence from the divided
counties have not the vital personal interest that the immediate residents of the county have, and
at the same time that the question is submitted to them, it is submitted to them under duress,
because they are compelled to vote in a certain way on the question, or lose the boon of
statehood. When we view it in this light, it certainly can have but little weight in determining the
legislative intent as to this subject, as under such submission the opponent of the county division
would stand about as much show as the proverbial snowball in Hades, or a Republican candidate
for office in the state of Texas.
¶188 Another reason suggests itself to the mind of the writer of this opinion why the congress of
the United States did not intend by the enabling act to grant the power, either directly, or by
necessary implication, to the constitutional convention to divide counties, or change boundaries
or county lines in counties already established in the Territory of Oklahoma, is, that by section 6,
of the enabling act, it is provided: "That until the next general census, or until otherwise provided
by law, the said state of Oklahoma shall be entitled to five representatives in the House of
Representatives of the United States, to be elected from the following described districts, the
boundaries of which shall remain the same until the next general census * * *." Then follows the
enumeration of the different counties and recording districts in the Indian Territory which shall
respectively constitute the different congressional districts. Now it seems that the provision that
the limits and boundaries of the congressional districts thus established by congress shall not be
changed until the next general census, makes the legislative intent perfectly clear that congress
did not intend that any legislation should be had or any authority exercised by the constitutional
convention which should in any way change the boundaries of these congressional districts. If it
can be shown that the proposed county division now under consideration does have the effect of
changing the boundaries of any of the congressional districts thus established by congress, I
think it will be established beyond controversy that such division of counties was not within the
legislative intent of congress. Section 6 provides that District No. Two shall comprise the
counties of Oklahoma, Canadian, Blaine, Caddo, Custer, Day, Dewey, Woodward, Woods, and
Beaver. Now, it is fair to presume that in making this distribution of counties into congressional
districts, congress intended that the boundaries should be in accordance with the counties as then
existing, and the boundaries of counties as then established. By the division of counties proposed
by the constitutional convention, one tier of townships on the east side of the southern portion of
Caddo county is taken off from Caddo county, and made a part of Grady county. Grady county
before the division of the counties, was a part of the Chickasaw Nation, known as Recording
District No. 19, and as such in the enabling act, formed a part of the 5th congressional district.
Now, the effect of this division would be to change the boundary line of the second
congressional district, as established by congress, and place the boundary line where the same
touches Caddo county, one tier of townships to the west, and would move the boundary line of
the 5th congressional district, where the same intersects Caddo county, on the west line of the
19th recording district of the Chickasaw Nation, one tier of townships to the west, thus changing
the boundary lines of both the second and fifth congressional districts to this extent. By the
enabling act District No. 5 shall comprise the counties of Greer, Roger Mills, Kiowa, Washita,
Comanche, Cleveland, and Pottawatomie, and the territory comprising recording districts
numbered seventeen, eighteen, nineteen, and twenty, in the Chickasaw Nation, Indian Territory.
By the terms of the enabling act, Day county is a part of the second congressional district, and
Roger Mills county forms a part of the fifth congressional district. By the division and
readjustment of counties proposed by the constitutional convention, Day county is entirely
obliterated from the map of Oklahoma. The southern portion of Day county is attached to Roger
Mills, and the balance of the county, or the northern portion, is made into Ellis county. By the
apportionment made by congress fixing the boundaries of the fifth congressional district, the
north line of that district where the same borders on Roger Mills county, would be on the line of
Roger Mills county as it existed at the time of the passage of the enabling act, and before the
division of the counties. After the division of counties, a portion of Day county was placed into
and became a part of Roger Mills county, thus taking a portion of Day county, to-wit: The
southern part of Day county which was originally in the second congressional district, and
placing it in the fifth congressional district as a part of Roger Mills county, thus materially
changing the northern boundary of the 5th congressional district, and the southern boundary of
the 2nd congressional district, where the same intersects Day and Roger Mills counties, and
moving the same farther north thus taking a portion of Day county out of the second district and
placing it in the fifth, therefore necessarily making the line of the second and fifth districts at a
different place than where it was located by the act of congress. A tracing out of the changes
made by the division of counties as proposed by the constitutional convention, will show that in
many other instances the boundary lines of the congressional districts as established by congress
must of necessity be changed.

¶189 There is only one theory on which this re-adjustment of counties can be considered which
will avoid the conclusion that the re-adjustment would change the boundaries of the
congressional districts, and that is, if the readjustment of counties and the placing of additional
territory in one county and taking it from another county in another congressional district might
not change the congressional district, so far as the added territory was concerned. That is, the
territory so added and so subtracted might be attached to the county and made a part of the
county for all purposes except congressional, and it might be argued that although it is a part of
another county, it still remains a part of the same congressional district, and that the boundary
lines of the congressional districts would not be changed. But this solution of the problem would
lead to very serious political complications as it would require not only a special ballot box for
this territory so added, but it would also require a special ballot and a separate count of the
ballots by the election commissioners, as under the system of voting generally in use throughout
the United States in preparing the ballot, all of the names of the candidates, national,
congressional, state and county, are placed upon one ballot, and are distributed by the county
clerks of the various counties to the different election precincts in the county. In this added
territory, as for instance, in Grady county, if the election officers of the election precincts in this
added territory should apply to the county clerk of Grady county for the ballots to be used in a
general election, the ballots would not contain the correct names of the candidates for congress,
but would contain the correct names of the candidates for the other offices, state and county. If
application should be made for these ballots by the election officers of this added territory to the
county clerk of Caddo county, then it would contain the correct names of the candidates for
congress, but would not contain the correct names of the county officers, and it would also seem
that the returns for congressmen would have to be made by the election officers in this added
territory in Grady county to the election commissioners in Caddo county, and the returns on the
election of the other officers would have to be made to the proper officers in Grady county. This
would present the embarrassing predicament of having the electors of this added territory voting
for state and county officers in Grady county, and voting for members of congress in Caddo
county. It will be readily seen that this would lead to endless confusion, and would make many
unfortunate and embarrassing complications, and it would hardly seem that the congress of the
United States intended to so form the enabling act and so grant authority under it as to lead to
this result. We have the right to presume that congress legislated on this subject with a full
knowledge of the conditions, and that they made the enabling act with a full understanding and
appreciation of all the results that might necessarily flow from it. The purpose of citing this
illustration is not to show the fact that it is impossible to harmonize the conditions, but for the
purpose of showing the improbability of congress intending any such result, and to show the
probable legislative intent of congress in the matter.
¶190 Now, I have given this subject careful consideration, much study and much thought, and I
am unable to arrive at any other different conclusion than that the re-division and re-adjustment
of counties and boundary lines as proposed by the constitutional convention must, of necessity, if
acted upon by the people, and recognized as a law, change the boundaries of the Fifth
congressional district established by congress, and must be an express violation of the express
direction of congress, which in plain terms indicated the legislative intent that the boundaries
shall remain the same until the next general census. This being true, I cannot believe that it was
ever the intention of congress to put into the enabling act an express prohibition against the
changing of the lines of the congressional districts established by congress, and then, by the same
document, put into the hands of the constitutional convention the unlimited power to do a thing
which would directly contradict that express prohibition. Hence, I am forced to the conclusion
that congress never intended to give the constitutional convention this power. If my conclusion
upon this proposition are correct, then in my judgment, it entirely disposes of the other
proposition, that is, that the constitutional convention had no right by its election ordinance to
appoint county officers in the new counties, and clothe them with authority to act as such. My
conclusions are that a constitutional convention, such as the one under consideration has only
such powers as are expressly granted to it by the act of congress known as the enabling act, and
such powers as are necessary to carry into effect the powers expressly granted to it by congress;
that neither under the express powers granted, or the implied powers incident thereto, has the
convention any power or authority to determine the boundaries of existing organized counties in
the Territory of Oklahoma, or to divide such counties, or to create new counties, and particularly,
they have not the lawful authority to divide Woods county; and by both express and implied
limitations under the law, power and authority was withheld from the convention to interfere in
any manner with the existing organized counties in the Territory of Oklahoma. That a
constitutional convention created and convened under the enabling act is composed of delegates
who are simply agents appointed by the electors to propose a constitution and state government
for the proposed state, and the enabling act is the warrant of attorney under which the convention
is authorized to act. And all matters beyond the scope of the agency as limited by such warrant of
attorney, are ultra vires. That this constitutional convention has no power or authority to create or
appoint any officer or officers for any county, township, municipality, or precinct in any part or
portion of the organized county of Woods, to take effect prior to the ratification of the proposed
constitution by the electors, and the issuing of the proclamation by the President, and it has no
power or authority to create any county, township, municipality, or precinct, or to interfere with
or displace any officer or officers for such townships, municipalities, or precincts in the
organized county of Woods, or any part of it, in the exercise of their lawful and legitimate duties
as such officers in it, or until the expiration of the term of the existing officers now exercising the
duties of the same in Woods county. I take it that the division of counties and the location of
boundary lines of counties, as well as the establishing of county seats in counties, comes within
the purview of what is known as ordinary legislation, and that before the constitutional
convention can indulge in any such legislation they must be able to show a warrant of authority
in the enabling act which called them into existence. That if they cannot find the authority for
such legislation in the express terms of the enabling act, or in the necessarily implied powers
conferred upon them by the enabling act, then they do not possess such powers. That they are not
the representatives of the people in the sense that they exercise in any degree the sovereignty of
the people. That thy are not a revolutionary convention, but they are a convention called into
existence, organized, regulated and limited by legislative enactment, and are bound by the terms
of the enabling act, which is the only charter of their authority. Mr. Jameson, in his excellent
work on constitutional conventions, in section 371, uses this language:

"* * * On the other hand, no fact is better established than that, beyond the province thus
specially set apart for them, neither conventions, nor the bodies of electors have any legislative
power. They can neither of them pass any law comprised within the sphere of ordinary
legislation."

¶191 In the foot-note to the same section, the author remarks:

"The debates of our conventions are full of disavowals of a right on the part of those bodies to
pass ordinary laws; in a few cases, however, it must be admitted that right has been claimed as a
part of a general claim of all sovereign powers. It has never been practically asserted, however,
except in a few doubtful cases, which will be considered hereafter."

¶192 In section 421 the same author says:

"* * * The reasoning of those who assert for the convention a general power of legislation is, in
its last analysis, that by which is vindicated the doctrine of convention sovereignty, of which in
its general form, a refutation has already been attempted."

¶193 In Ex Parte Birmingham & A. R. Co. (Ala.) 42 So. page 120, quoting from Woods Appeal,
75 Pa. 59, it is said:

"A convention has no inherent rights. It exercises powers only. Delegated power defines itself.
To be delegated, it must come in some adopted manner to convey it by some defined means.
This adopted manner, therefore, becomes the measure of the power conferred. The right of the
people is absolute in the language of the bill of rights, 'To alter, reform, or abolish their
government in such a manner as they may think proper.'"

¶194 And, on the following page, 121, quoting from the same case:

"The legislature may not confer powers by law inconsistent with the rights, safety and liberties of
the people, because no consent to do this can be implied; but they may pass limitations in favor
of the essential rights of the people. If the authority of the people passes to the convention
outside of the law, the people are left without the means of self protection, except by revolution.
Then the singular spectacle is presented of the absolute sovereignty of the people being vested in
a body of agents without any known means of transmission or limitation."

¶195 And on page 122, citing from McDaniel's Case, 2 Hill Law 270:

"An ordinance is produced to us passed by a certain number of individuals assembled in

Columbia. This gives it no authority as an act of the people. But we are told they were elected by
the people. This, however, is not enough. To what purpose were they elected by the people? To
represent their sovereignty. But was it to represent their sovereignty to every purpose, or was it
for some specific purpose? To this no other answer can be given than the act of the legislature
under which the convention was assembled. Certainly the people may, if they will, elect
delegates for a particular purpose, without conferring on them all their authority.

"The supreme court judge of Massachusetts, in 6 Cush. 574, 575, in discussing this question said.
'Upon the first question, considering that the constitution has vested no authority in the
legislature in its ordinary action to provide by law for submitting to the people the expediency of
calling a convention of delegates for the purpose of revising or altering the constitution of the
commonwealth, it is difficult to give an opinion upon the question, what would be the powers of
a convention, if called? If, however, the people should, by the terms of their vote, decide to call a
convention of delegates to consider the expediency of altering the constitution in some particular
part thereof, we are of the opinion that such delegates would derive their whole authority and
commission from such vote; and upon the general principles governing the delegation of power
and authority they would have no right, under such vote, to act upon any proposed amendments
in other parts of the constitution not so specified."

¶196 And, on page 122, quoting from Bragg v. Tuffts, 49 Ark. 554, 561, 6 S.W. 158, it is said:

"The first question that suggests itself, is, what right had the convention--a body consisting of but
a single chamber --to enter upon the domain of general legislation? For the raising of revenue,
the providing of ways and means to meet the expenses of administering the government, and the
prescribing of the funds in which taxes are to be paid, are legislative functions, not of a
fundamental character. By the constitution of 1836, and all other constitutions that have ever
been in force in this state, the legislative power has been confined to a general assembly,
consisting of a senate and house of representatives. The governor also has always had a voice in
legislation, a limited power in vetoing measures which did not meet his approval. Now a
convention called, for instance, to frame a new constitution, has no inherent right to legislate
about matters of detail. All the powers that it possesses are such as have been delegated to it,
either by express grant or necessary implication. But we are of the opinion that when a
convention is called to frame a constitution which is to be submitted to a popular vote for
adoption, it cannot pass ordinances and give them validity without submitting them to the people
for ratification as a part of the constitution. The delegates to such a convention are but agents of
the people, and are restricted to the exercise of the powers conferred upon them by the law which
authorizes their election and assemblage."

¶197 And, in the same case, ( Ex. Parte Bir. & A. R. Co., supra) it is said:

"The act so clearly defined the purpose for which the convention should be held that we have
every reason to conclude that the legislature did not, for a moment, anticipate that the convention
would undertake to indulge in local legislation relating to Shelby and St. Clair counties."

¶198 In Jameson on Const. Con. section 420, is this language:

"Does an analogous rule prevail in relation to the convention, the framer of the fundamental law?
Or, may it, by virtue of some transcendent power, inherent in it, or of well-established custom or
precedent, overleap all bounds interposed to limit its competence and take upon itself the
function of legislation in general?"
¶199 And, in section 421:

"This question will be examined upon both of the grounds indicated in their order, namely, first,
upon that of inherent power, and secondly, upon that of custom or precedent.

"First, the reasoning of those who assert for the convention a general power of legislation, is, in
its last analysis, that by which it vindicated the doctrine of conventional sovereignty, of which, in
its general form, a refutation has already been attempted. The particular argument in this
connection is, that the business of a convention is extraordinary, beyond the competence of either
of the recognized ordinary agencies, of the sovereign; that that body receives its commission
from the same source as do these agencies, and, therefore, on the whole, is entitled to outrank
them all; that, although as a prudent precaution against dissatisfaction or cavil, it is doubtless
better for a convention to forego the exercise of extreme rights and submit its works to the
judgment of the people, yet it is not true that it lacks power directly and definitively to enact the
supreme law of the land; that, if this be conceded, it needs only to analyze the general power thus
described into its constituents to find the power in question;that the fundamental conception of
the business of a convention is, that it takes to pieces, or as it is some times expressed, tramples
under its feet, the existing constitution of a state, and out of the old materials, or out of old and
new together, erects a structure to fill its place; that, with the constitution, falls of course the
government of the state; that, starting; thus, potentially at least, according to its own will, with a
clean slate, to deny to the body possessing such omnipotence the power of legislation, would be
to deny that the greater includes the less; that, if it can enact the fundamental law, why not, also
the ordinary statute law, of which the nature, it is true, is somewhat dissimilar, but whose
importance is vastly inferior? That a convention is competent, by constitutional provision to
abolish all existing agencies of government, and to fill their places with others constructed on
different principles. Is it then conceivable it is asked, that it cannot do directly, what it can do
indirectly, or that the right to exercise so exalted a prerogative is conditioned upon its exercise in
a particular mode? That as a matter of fact, the convention through its relation to the several
departments of the government, as in turn their destroyer and their creator, can exercise at will,
the functions of each of them; that, being a virtual assemblage of the people, it wields all the
powers which the people themselves would possess, were it in the nature of things possible for
them to act directly, hence, that within the bounds fixed by its own discretion, a convention may
make laws or may interpret or execute them."

¶200 And, in section 422, the same author says:

"To this argument, the following considerations constitute in my judgment, a complete answer:

"If the safety of the people is the supreme law, of which there is no doubt, and which I affirm,
the maxim involves both a grant of power and a limitation of power. It is a grant of power,
inasmuch as it authorizes and requires all public functionaries to protect and defend the people at
whatever cost; to do it, however, by adhering, first to the letter, and secondly, to the spirit of their
instructions, that is, of the constitution and laws; and thirdly, to the principles on which the social
edifice is bottomed. When the letter of the law is silent, or its spirit doubtful, the principles
indicated are the only chart by which official conduct can be regulated, and are the first in
validity and sacredness, since they are the sum of the letter and spirit, of positive law, as well as
that unwritten law which presided at the genesis of the social state, anterior to all positive law.
Hence, it is plainly the duty of such functionaries always to conform to those principles, since a
disregard of them involves, in substance a violation of the letter and spirit of the positive law,
and at length the ruin of the commonwealth. Do what necessity requires, and ask for indemnity
for technical breaches of law, is the rule of practical conduct dictated by the maxim under
consideration."

¶201 Citing Rive v. Foster, 4 Harrington's R. 479.

"As a limitation of powers, the same maxim is of extensive application. In cases of doubtful
construction of constitutional provisions, or in which there are no express provisions determining
grants of power, it is the most important touchstone in our whole system. Starting with the
postulate of representative republican institutions, the two following propositions must be
accepted--First, that whatever manifestly endangers the safety of these institutions must be
forborne, though authorized by an express grant of power; and secondly, that no act whatever
must be done or tolerated in the absence of such a grant, of which the tendency or still more the
direct effect would be to endanger them. In the case last supposed, no power to do the act could
be implied, under any circumstances whatever, no matter how clearly it might seem, for the time,
to be expedient.

"Sec. 423: Now in the light of these principles, is the exercise by a convention of legislative or
other governmental powers, in addition to those clearly belonging to it, to be considered as
within its competence, as a constitutional body? Is such an assumption of power one which
threatens no danger to the commonwealth? By the theory of those who accord to it such powers,
as soon as the convention is assembled, the control of the existing government is at an end; the
constitution lies torn into fragments under its feet; and while the work of restoration is in
progress, that body alone constitutes the state, gathering into its single hands the reins ordinarily
held by the four great systems of agencies constituting the government to whose functions it
succeeds. If this be so, what, but its own sense of justice is to restrain such a body from running
riot as did the Thirty Tyrants at Athens? The jurists of the Illinois convention, of 1862, as we
have seen, affirmed that the act under which such a body assembles is no longer binding, when
once it has become organized. If, at that moment, it has also cast upon it, by virtue of its great
commission, all governmental powers, how easy to extend the scope and the period of the
exercise of those powers under the plea that expediency demands it. The expedient is the
appropriate domain of a legislature. If at the moment of organization, a convention is endowed
with legislative powers, it may be deemed expedient to subvert the system of guarantee by which
our liberties are assured to us, and at the same time to withhold from the popular vote the
constitutional provisions by which the change is to be effected. Such a consummation would be
not merely possible, it would be probable. And clearly, the possibility of its occurring with an
appearance of rightfulness is enough to stamp as dangerous that theory of conventional powers
from which it must flow. In the science of politics, it is an important point gained to have settled
the limit where normal action ends and revolution begins. To have done that, is practically, in
most cases to have rendered revolution impossible.

"The result is that a convention cannot assume legislative powers. The safety of the people,
which is the supreme law, forbids it. Even if we suppose the body expressly empowered by the
legislature to exercise such powers, the right so to do must be denied, because the same supreme
law places an absolute interdict on such a grant. It is beyond the power of a legislature to
delegate any such authority.

"Sec. 424: To these general considerations, tending to discredit the claim of conventions to
legislative powers, must be added the decisive circumstance that our constitutions, as well state
as federal, have vested all the power of ordinary legislation the people have chosen to grant at
all, in our legislatures. The construction put upon these provisions of our constitution by the
courts is, that the grant is exclusive, and that the power can neither be delegated by the
legislatures, nor exercised by the people, not even by the whole people.

"Sec. 425: Were additional arguments needed to demonstrate that a convention has no power of
ordinary legislation, reference might be made to the fact, that the possession of such a power
would be extremely inconvenient, on account of the necessarily temporary and experimental
character of such legislation on the one hand, and the difficulty of effecting changes in the
enactments of conventions on the other. Every ordinance or constitutional provision passed by a
convention, assumes a form nearly as rigid as that of the Median laws; they can be repealed only
in the formal way in which they were enacted. It would be impossible to administer with any
success any government so crippled in its legislative arm. The result would inevitably be, that
laws would be constantly disregarded, or that conventions would become so necessary and
frequent that they would ultimately supplant our legislatures."

¶202 I have not indulged in as extensive a citation of authorities as the subject under discussion
would warrant for the reason that in my judgment, the conclusions reached are logical deductions
which can be drawn from the enabling act itself, when we interpret the same in the light of all the
surroundings and conditions which existed at the time the same was passed, bearing in mind the
object to be attained, and the result to be accomplished. This is a question of very grave
importance to the people of these two territories, One which is important, not only in the present,
but of vast importance to the future. It is one which reaches the vital interests of the state to be
formed from the virgin soil of these great territories. It is one, the importance of which should
raise it above personal or partisan feeling; one in the discussion of which, party politics and
personal interests should have no place, and no weight; one in which the people require at the
hands of the courts their honest, unbiased judgment, uninfluenced and unhampered by anything
other than a careful, and candid consideration of the law as it exists, and an honest expression of
opinion, and it is only the vast importance of the subject which induced me to file this dissenting
opinion. I have briefly given my views of the subject as they occur to me, that they may be made
matters of record showing my reasons, or some of my reasons, for differing with the conclusion
reached by a majority of this court. And, while I entertain the highest regard for the attainments
and legal ability of the members of this court, and have the greatest respect for their legal
opinions, I am constrained to dissent from the views expressed by them in this case.