Republic of the Philippines

SUPREME COURT
Manila

EN BANC

DECISION

April 15, 1918

G.R. No. L-13862

In re R. McCULLOCH DICK.

Kincaid & Perkins, W. H. Lawrence and D. R. Williams for petitioner.

Acting Attorney-General Paredes for the Government.

, J.:

The Solicitor-General moves the court to revoke its orders providing for a stay of
execution of its judgment pending proceedings looking to a review of the judgment
by the supreme Court of the United States and not exceed three months; and,
further, to remand the petitioner to the custody of the chief of police of the city of
Manila, so that the order of deportation may be executed forthwith.

Since the enactment by Congress of the Amendments to the Judicial Code which
require litigants in this court, seeking review of our judgment by the supreme court
of the United States, to institute proceedings to that end by filing an application for
a writ of certiorari in the clerks office of the Supreme Court of the United States, we
have adopted the practice of temporarily staying or suspending the execution of our
judgments, when timely application is made therefor, in any case wherein it is made

to appear that the applicant desires to make application for such writ of certiorari to
the Supreme Court of the United States; that he will diligently prosecute the
prescribed remedy and intends to take necessary steps to submit his application
without unnecessary delay; that his application for suspension of execution of our
judgment is made in good faith and not merely for the purpose of securing delay,
nor based on frivolous grounds; and that the execution of the judgment would
subject him to irreparable loss, damage, or injury in the event of its subsequent
reversal by the Supreme Court of the United States.

In the absence of the statutory rules governing the procedure in such case, our
practice has been to direct the clerk of the court, in case heard on appeal, to retain
the record of the cause in his hands without certifying our judgment to the court
below, and in cases heard in the exercise of our original jurisdiction, to retain control
over the record without certifying our judgment to the inferior tribunal corporation
board or person charged with its execution or with obedience to its mandate until, a
day fixed in the order, or until the further order of the court.

Suspensions or stays of execution under this practice have usually been limited to a
period of from two to three months, which experience has shown to be sufficient,
under ordinary circumstances, to give the application an opportunity to file his
petition for the writ of certiorari in the office of the clerk of the Supreme Court of the
United States.

In the instance case timely application was made for suspension of the execution of
our judgment remanding the petitioner to the custody of the chief of police for
compliance with the deportation order; and it was shown to the satisfaction of the
court that the application was made in good faith, and that the application would
suffer irreparable injury by the execution of the deportation order, if reverse our
judgment and accept the views of the four members of this court who dissented
therefrom and were of opinion that the deportation order was without warrant of
law.

No objection having been made to the motion for a stay of execution of our
judgment remanding the petitioner, an order was entered in accordance with the
established practice above set out.

At the same time, the petitioner (who, by virtue of the suspending order remained
in the custody of the court) was released from the technical custody of our sheriff,
and set at liberty upon his filing an approved bond in the sum of P2,000 which
under the exceptional circumstances of the case, was conditioned not merely upon
his remaining within the jurisdiction of the court and subject to its order at all times
pending the proceedings looking to the review of our judgment, but also upon his
keeping the peace and not being guilty of any offense against the public order and
tranquility, nor inciting others to like conduct throughout that period.

The Solicitor-General prays for an order vacating these orders providing for a stay or
suspension of the execution of our judgment and setting the petitioner at liberty on
bail, on the ground that we have no jurisdiction to issue such orders; and on the
further ground that, granting, for the sake of argument, that we have jurisdiction in
the premises, the facts disclosed by the record do not justify us in maintaining these
orders in force under existing conditions in the Philippine Islands.

The Solicitor-General contends that this court having declared, upon full
consideration of law and the facts, that the Governor- General is vested with power
to deport the petitioner, we have no power, under our own rulings, to interfere with
or to control his action in the premises.

But is equally true that by entering upon the inquiry as to whether the GovernorGeneral was lawfully clothed with power to deport the petitioner, we recognized the
power and duty of the court to adjudicate the question raised by the petitioner as to
the power of the Governor-General in the premises; and asserted our authority,
under the law, to have the body of the petitioner brought before us in habeas
corpus proceedings, and placed at our disposal pending the final disposition of the
question thus submitted for adjudication.

In the very nature of things the right of the Chief Executive to exercise his lawful
powers without the interference of the court must give way, so far that may be
necessary to secure a full, fair, and final adjudication by the courts of a question as
to the legality and existence of powers which he assumes to exercise, when that
question is raised in habeas corpus proceedings by a petitioner alleging that he has
been unlawfully deprived of his liberty.

The petitioner in the instant case is now under the custody of this court, pending
the final adjudication of the question raised by him as to the existence and legality
of the power raised by the Governor-General in ordering his deportion; and although
this court has solemnly declared that the Governor-General is lawfully vested with
such power, there can be no question as to the right of the petitioner to apply to the
Supreme Court of the United States for a review of our judgment.

We are satisfied that under the law and the settled practice of this court, we have
jurisdiction to suspend the execution of our judgment, and to withhold the order
remanding the petitioner for deportation for a period of time sufficient to give him a
suitable opportunity to apply for a writ of certiorari form the Supreme Court of the
United States. (U. S. vs. Lim, 36 Phil. Rep., 682; Campagnie de Commerce et de
Navigation DExtreme Orient vs. Hamburg Amerika Packetfacht Actien Gesellschaft,
36 Phil. Rep., 590; E. Viegelmann & Co. vs. Collector of Customs, 37 Phil. Rep., 10;
R. G. No. 11899, Ynchausti & Co. Board of Public Utility Commissioner.1)

As a corollary to our ruling that we have jurisdiction temporarily to stay or suspend

execution of our judgment remanding petitioner to the custody of the officer who
delivered him to the custody of the court in compliance with the writ of habeas
corpus, it flows that it is our duty and that we have the power to adopt such
measures as may be appropriate and necessary for his safe-keeping while in our
custody, and to secure of the chief of police for deportation if and when the order
staying or suspending execution of that judgment is vacated.

But while we entertain no doubt as to our jurisdiction to provide for a temporary

stay or suspension of execution of our judgment remanding the petitioner, and
pending such stay, to provide, his retention in our custody, either in the ands of our
sheriff or at liberty under bail; we are forcibly impressed with the representations of
the Solicitor-General as to the impropriety of maintaining the order letting him to
bail, over the objection of the chief Executive, who is primarily charged with
maintenance of the peace, good order, and safety of these Island.

As the Solicitor-General well says, the logical and necessary conclusion to be

derived from the record of these proceedings, read together with the opinion of the
court, is that the petitioner is an undesirable alien, who presence in the Philippine
islands is a menace to the peace and safety of the community. The GovernorGeneral in the lawful exercise of the authority conferred upon him under section 69
of the Administrative Code, has so declared, after prior investigation f the course of

which the petitioner had full opportunity to be head in his own behalf; and this court
has expressly held that we are not at liberty in the course of these proceedings to
reexamine or to controvert the sufficiency of the evidence on which he based his
conclusions.

Indeed, it was the knowledge of these findings by the Governor-General as disclosed

by the record, which caused us to condition the letting of the petitioner to bail upon
the execution of a bond in a substantial sum, conditioned not merely upon his
holding himself subject to the orders of the court pending the stay of execution of
our judgment, but also upon his keeping the peace throughout that period.

At that time no objection had been filed by the Solicitor-General to the motion of
petitioner to suspend our judgment pending proceedings looking to its review by the
supreme court of the United States; and, in the absence of objection, we conceived
that the convenience of the petitioner might properly be consulted by setting him at
liberty under a substantial bond conditioned as we have just indicated.

But it now becomes our duty to consider whether the order letting the petitioner to
bail should be maintained in force over objection interposed by Solicitor-General on
behalf of the Chief Executive; and notwithstanding his representations that as an
undesirable alien who presence in the Philippine Islands is a menace to the peace
and safety of the community the petitioner should be deported forthwith, and
certainly should not be at large to continue his pernicious activities at will, during
the more or less prolonged period of the suspension of execution of our judgment
remanding him to the custody of the chief of police.

In this connection, our attention has been called to the fact that the petitioner is the
proprietor and editor of a weekly newspaper of considerable circulation and as such
has it within his power, if at large to place more or less serious obstacles in the way
of measures contemplated by the executive legislative authorities for the recruiting
and organization of native troops destined to the serve of the United States in the
present war. Indeed, the Solicitor-General asserts that the first issued of that
newspaper following the promulgation of the decision of this court, contains matter
well calculated to create and foment racial prejudices and differences, highly
detrimental to the general welfare and good order of the Island, and especially to be
deprecated at this time and when the utmost peace and harmony should prevail in
the face of a common enemy.

But without stopping to consider whether there is anything in this issue of the Free
Press which supports the contentions that there is a manifest inconsistency between
the rulings upon which our judgment was based, and the maintenance in force of
our order stetting the petitioner at large on bail, over the objection of the SolicitorGenral representing the Chief Executive.

Having held that he Governor-General was lawfully authorized to institute and

maintain deportation proceedings against the petitioner under the provisions of
section 69 of the Administrative code; and having declared that we have no
jurisdiction in these habeas corpus proceedings to reexamine or controvert the
sufficiency of the evidence on which he based his ruling in the course of these
proceedings; and the Governor-General having declared, as a result of an
investigation lawfully held under his direction, that the petitioner is an undesirable
alien, whose presence in the Philippine Islands is a menace tot he peace and safety
of the community; it would seem to be a flagrant abuse of our discretion to turn him
loose upon the community at such ta time as this, in the face of the insistent
objection of the Chief Executive who is primarily charge with the maintenance of the
safety, peace, and good order of these Islands.

The most that the petitioner is entitled to demand, as of right, is that under the
transcendent authority of its writ of habeas corpus, this court should stay the course
of the deportation proceedings, and if necessary take him into the custody of the
court itself, long enough to secure a full and final adjudication of the legality of the
deportation order. He cannot demand that he be released from custody until that
question is determined in his favor; though, as we have said, the court may, in its
discretion, let him to bail pending the proceedings.

But this discretion is a sound judicial discretion to be exercised in the light of all the
surrounding facts and circumstances. After having held that a petitioner in habeas
corpus proceedings had been lawfully adjudged a dangerous lunatic or a desperate
criminal no court would be justified, except under the most extraordinary
circumstances, a letting him to bail merely for the purpose of securing a review of
the proceedings by a superior court. So this court, after upholding the legality of the
order deporting the petitioner and of the proceedings wherein he was adjudged an
undesirable alien whose presence in the Philippine Island is a menace to the pace
and safety of the community cannot consistently turn him loose upon the
community under bail, for the more or less prolonged period necessary to secure a
review of the proceedings by the Supreme Court of the United States, when
objection to that course is interposed by the executive officer more especially
charged with the maintenance of the peace and safety of the community.

What has been said in some of the federal courts of the United Sates as to the
propriety of exercising the discretionary power to grant bail in favor of Chinese
person, pending deportation proceedings against them, in ordinary cases wherein it
was not asserted that he presence of such person was a menace to the peace,
safety, good order o health of the community, or a dangerous anarchist, or a person
afflicted with a loathsome and communicable disease, or the like.

We have conclude, therefore, that while we should and must deny the motion of the
Solicitor-General to vacate our order staying the execution of our judgment and to
turn the petitioner over to the chief of police for deportation forthwith, we would not
be justified in maintaining in force the order letting the petitioner to bail, over the
well-founded objection of the Chief Executive who is primarily charged with the
conservation of the peace, safety and good order of the Islands. Accordingly, we will
entertain a new or an amended motion by the Solicitor-general to take the
petitioner into the immediate custody of the court, to cancel the bond upon which
he is now at large, and thereafter to turn him over to the custody of the chief of
police of the city of Manila or such other officer as may be designated by the chief
Executive, for detention pending the stay of execution of our judgment in these
habeas corpus proceedings.

The motion of the Solicitor-General, in the form in which it has been submitted,
should be and is hereby denied.

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

Avancea, J., reserves his vote.

Separate Opinions

MALCOLM, J., concurring:

We never believe in running with the hares and coursing with the hounds. Either the
chief of police of the city of Manilas as the official representative of the Chief

Executive has custody, of the petitioner, or the courts have custody. If the chief of
police has custody, the motion of the attorney-general to vacate the order issued by
this court should be granted and the petitioner should be turned over to the
representative of the governor-general for such action as the judgment of the latter
shall dictate. The decision of the majority of this court, if followed to its logical
conclusion, might permit of no other action. If the courts retain custody of the
petitioner, the motion of the Attorney-General should be denied. The Supreme Court
of the Philippine Islands having taken jurisdiction, such jurisdiction should subsist
until the jurisdiction of the Supreme Court of the United States attaches. But as
between these two possibilities then can be no compromise.

Let us notice briefly what has happened. Disregarding the dissenting opinions and
stating the proposition in most general terms, the court has decided that the
Governor-General possesses the power to deport aliens and that with this official act
the c courts will not presume to interfere. That judgment, as is our right, the court
has suspended, and has admitted petitioner to bail because of his announced desire
to appeal to the United States Supreme Court. The case many now be considered as
on the way to the higher tribunal. All this means that the judgment has not gone out
to the Chief Executive States Supreme Court and in order to protect the rights of the
petitioner, pending decision by that court.

The important question (although apparently the other members of the court do not
consider it so) is whether pending an appeal to the Supreme Court of the United
States from a final decision of the Supreme Court of the Philippine Islands declining
to grant the writ of habeas corpus, the latter court has the right to admit petitioner
to bail.

It is a policy inherent in democracy to admit to bail any person arrested in any kind
of proceeding except for contempt and for capital offense. The practice of this court
in criminal case has heretofore been admit to bail pending an appeal. This is merely
applied justice for it may well be that our decision is wrong. The reversal of the
decision of the Supreme Court of the Philippine Islands in the Weems case1 is an
instance of the unexpected taking place. Surely it would come with an illgrace from
this court to treat dissatisfied litigants harshly, or to appear to discourage appeals,
or to force a party to surrender the constitutional right which the Organic Law has
given him. Accordingly a person who ultimately may be declared innocent should
not be made to suffer unnecessarily. We should not stand idly by and see a
sentence served before the case can be submitted and decided by the appellate
court.

Now, of course, habeas corpus proceedings are civil and not criminal in nature.
Nevertheless, deportation is by way of punishment. The effect of imprisonment and
deportation is not dissimilar. Just as it is not fair to force an accused person to serve
his sentence before a decision can be reached in the United States Supreme Court,
so would it be to fair to permit a petitioner in habeas corpus to be deported before
he can submit his case. The paraphrase language of the United States Supreme
Court which has heretofore met with the approval of this court, it is a serious thing
to detain a foreigner who, as in this case, has been in this country giving him a full
opportunity to assert his rights and exhaust his remedies before competent court.
(Liu Hop Fong vs. United States [1908], 209 U. S., 453, followed in a decision
handed down by Justice Torres, Mapa, Johnson, Carson and Tracey. U. S. vs. Go-Siaco
[1909], 12 Phil., 490.) The hands of authority should be stayed, if it is legally
possible, until it is finally determined whether the power to deport exists.

From the authorities can be sifted out the deduction that pending appeal release
under bail is a matter inherently within the discretion of the court. The status quo is
ordinarily to be preserved. This means that petitioner remains in custody of the
courts, either under bail or, when necessary to safeguard the public welfare in
detention, in the hands of its officer to await the outcome of his appeal. (There can
be noted as corroborative authority the following: U. S. vs. Go-Siaco [1909], 12 Phil.,
490; U. S. vs. Lao Chueco [1917], 37 Phil. Rep., 53; In re Mackane [1894], 61 Fed.,
205; Ex Parte Green [1908], 165 Fed., 557; U. S. Revised Statutes in connection with
Jurigo vs. Brush [1891, 140 U. S., 291; Lau Ow Bew vs. U. S. [1891], 141 U. S. 583;
Fong Yue Ting vs. U. S. [1893], 149 U. S., 698; Li Sing vs. U. S. [1901], 180 U. S.,
486; Wright vs. Henkel [1903], 190 U. S., 40; Liu Hop Fong vs. U. S. [1908], 209 U.
S., 453; Rule 34, United States Supreme Court; Bouve, Exclusion and Expulsion of
Aliens in the United States, pages 664-667.) The majority decision admits the force
of all this but then diverges to a contradictory conclusion.

The original action of this court, in the exercise of its discretion, in staying the
proceedings in order that the petitioner can have a reasonable time to secure from
the United States Supreme Court the allowance of an appeal for the purpose of
determining whether his attempted deportation is authorized, and in admitting the
petitioner to bail, is believed to be in accord conforms to reason and justice. No
change has taken place the petitioner was released on bail is believed to be in
accord with federal practice. More important still, such conforms to reason and
justice. No change has taken place since the petitioner was released on bail which
would warrant the modification of the order contemplated by the decision of the

majority upon the pending matter. The motion should be denied, without
qualification.

Street and Fisher, JJ., concur.

Footnotes

Decided January 23, 1918, not published.

MALCOLM, J., CONCURRING:

7 Phil. Rep., 241; 217 U. S., 349.