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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 clerk’s 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

. and it was shown to the satisfaction of the court that the application was made in good faith. that he will diligently prosecute the prescribed remedy and intends to take necessary steps to submit his application without unnecessary delay. damage. and that the application would suffer irreparable injury by the execution of the deportation order. nor based on frivolous grounds. 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 absence of the statutory rules governing the procedure in such case. or until the further order of the court. a day fixed in the order. and that the execution of the judgment would subject him to irreparable loss. 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. or injury in the event of its subsequent reversal by the Supreme Court of the United States. 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.to appear that the applicant desires to make application for such writ of certiorari to the Supreme Court of the United States. that his application for suspension of execution of our judgment is made in good faith and not merely for the purpose of securing delay. Suspensions or stays of execution under this practice have usually been limited to a period of from two to three months. in case heard on appeal. and in cases heard in the exercise of our original jurisdiction. 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. an order was entered in accordance with the established practice above set out.” No objection having been made to the motion for a stay of execution of our judgment remanding the petitioner. to retain the record of the cause in his hands without certifying our judgment to the court below. under ordinary circumstances. our practice has been to direct the clerk of the court. which experience has shown to be sufficient.

The Solicitor-General contends that this court having declared.General is vested with power to deport the petitioner. that the Governor. 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. and on the further ground that. . and asserted our authority. 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. But is equally true that by entering upon the inquiry as to whether the GovernorGeneral was lawfully clothed with power to deport the petitioner.000 which under the exceptional circumstances of the case. under the law. granting. nor inciting others to like conduct throughout that period. we have no power. to interfere with or to control his action in the premises. 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. 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. the facts disclosed by the record do not justify us in maintaining these orders in force under existing conditions in the Philippine Islands. and final adjudication by the courts of a question as to the legality and existence of powers which he assumes to exercise. fair. that we have jurisdiction in the premises.At the same time. upon full consideration of law and the facts. on the ground that we have no jurisdiction to issue such orders. under our own rulings. but also upon his keeping the peace and not being guilty of any offense against the public order and tranquility. 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. for the sake of argument. so far that may be necessary to secure a full. the petitioner (who. when that question is raised in habeas corpus proceedings by a petitioner alleging that he has been unlawfully deprived of his liberty. and set at liberty upon his filing an approved bond in the sum of P2. by virtue of the suspending order remained in the custody of the court) was released from the technical custody of our sheriff.

No. and pending such stay. over the objection of the chief Executive.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.The petitioner in the instant case is now under the custody of this court. 682. Campagnie de Commerce et de Navigation D’Extreme Orient vs. E. 37 Phil. As the Solicitor-General well says. good order. 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. 36 Phil.. S. Lim. 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. 10. (U. Board of Public Utility Commissioner. either in the ands of our sheriff or at liberty under bail. 11899. is that the petitioner is an undesirable alien.. who is primarily charged with maintenance of the peace. the logical and necessary conclusion to be derived from the record of these proceedings. who presence in the Philippine islands is a menace to the peace and safety of the community. 36 Phil. his retention in our custody. Viegelmann & Co. and to secure of the chief of police for deportation if and when the order staying or suspending execution of that judgment is vacated. 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. Collector of Customs. 590. vs. read together with the opinion of the court. and safety of these Island. Rep.. 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. after prior investigation f the course of . We are satisfied that under the law and the settled practice of this court. 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. R. Rep. G. The GovernorGeneral in the lawful exercise of the authority conferred upon him under section 69 of the Administrative Code. Rep. has so declared. Hamburg Amerika Packetfacht Actien Gesellschaft. we are forcibly impressed with the representations of the Solicitor-General as to the impropriety of maintaining the order letting him to bail. and although this court has solemnly declared that the Governor-General is lawfully vested with such power. we have jurisdiction to suspend the execution of our judgment. to provide. Ynchausti & Co. vs.

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. conditioned not merely upon his holding himself subject to the orders of the court pending the stay of execution of our judgment. 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. . and. 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. it was the knowledge of these findings by the Governor-General as disclosed by the record. but also upon his keeping the peace throughout that period. the Solicitor-General asserts that the first issued of that newspaper following the promulgation of the decision of this court. which caused us to condition the letting of the petitioner to bail upon the execution of a bond in a substantial sum. 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. and especially to be deprecated at this time and when the utmost peace and harmony should prevail in the face of a common enemy.which the petitioner had full opportunity to be head in his own behalf. 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. 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. 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. Indeed. 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 certainly should not be at large to continue his pernicious activities at will. contains matter well calculated to create and foment racial prejudices and differences. In this connection. Indeed. highly detrimental to the general welfare and good order of the Island.

as a result of an investigation lawfully held under his direction. that the petitioner is an undesirable alien. over the objection of the SolicitorGenral representing the Chief Executive. The most that the petitioner is entitled to demand.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. though. 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. long enough to secure a full and final adjudication of the legality of the deportation order. So this court. in its discretion. 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. let him to bail pending the proceedings. a letting him to bail merely for the purpose of securing a review of the proceedings by a superior court. is that under the transcendent authority of its writ of habeas corpus. 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. 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. it would seem to be a flagrant abuse of our discretion to turn him loose upon the community at such ta time as this. this court should stay the course of the deportation proceedings. . whose presence in the Philippine Islands is a menace tot he peace and safety of the community. for the more or less prolonged period necessary to secure a review of the proceedings by the Supreme Court of the United States. 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. But this discretion is a sound judicial discretion to be exercised in the light of all the surrounding facts and circumstances. as of right. except under the most extraordinary circumstances. and if necessary take him into the custody of the court itself. in the face of the insistent objection of the Chief Executive who is primarily charge with the maintenance of the safety. and the Governor-General having declared. as we have said. peace. the court may. and the maintenance in force of our order stetting the petitioner at large on bail. He cannot demand that he be released from custody until that question is determined in his favor. and good order of these Islands.

concurring: We never believe in running with the hares and coursing with the hounds. reserves his vote. safety. Avanceña. over the well-founded objection of the Chief Executive who is primarily charged with the conservation of the peace. for detention pending the stay of execution of our judgment in these habeas corpus proceedings. 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. Torres and Araullo.J. in ordinary cases wherein it was not asserted that he presence of such person was a menace to the peace. Separate Opinions MALCOLM. We have conclude.. or a person afflicted with a loathsome and communicable disease. JJ. concur. J.. Accordingly. 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.. or the like. we will entertain a new or an amended motion by the Solicitor-general to take the petitioner into the immediate custody of the court. or a dangerous anarchist. Either the chief of police of the city of Manilas as the official representative of the Chief . Arellano. we would not be justified in maintaining in force the order letting the petitioner to bail. pending deportation proceedings against them. safety and good order of the Islands. therefore. C. good order o health of the community. to cancel the bond upon which he is now at large. should be and is hereby denied. J. in the form in which it has been submitted..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. The motion of the Solicitor-General.

That judgment. 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 reversal of the decision of the Supreme Court of the Philippine Islands in the Weems case1 is an instance of the unexpected taking place. if followed to its logical conclusion. such jurisdiction should subsist until the jurisdiction of the Supreme Court of the United States attaches. 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. 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. of the petitioner. as is our right. Surely it would come with an illgrace from this court to treat dissatisfied litigants harshly. and has admitted petitioner to bail because of his announced desire to appeal to the United States Supreme Court. The Supreme Court of the Philippine Islands having taken jurisdiction. or to appear to discourage appeals. This is merely applied justice for it may well be that our decision is wrong. We should not stand idly by and see a sentence served before the case can be submitted and decided by the appellate court. Let us notice briefly what has happened. 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 court has suspended. The practice of this court in criminal case has heretofore been admit to bail pending an appeal. . If the chief of police has custody. 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. or to force a party to surrender the constitutional right which the Organic Law has given him. The decision of the majority of this court. the latter court has the right to admit petitioner to bail. The case many now be considered as on the way to the higher tribunal. pending decision by that court. But as between these two possibilities then can be no compromise. If the courts retain custody of the petitioner. Accordingly a person who ultimately may be declared innocent should not be made to suffer unnecessarily. or the courts have custody.Executive has custody. Disregarding the dissenting opinions and stating the proposition in most general terms. might permit of no other action. the motion of the Attorney-General should be denied.

) The hands of authority should be stayed. U. S. United States Supreme Court. The status quo is ordinarily to be preserved.. (Liu Hop Fong vs. 165 Fed. 180 U. in the hands of its officer to await the outcome of his appeal. has been in this country giving him a full opportunity to assert his rights and exhaust his remedies before competent court. until it is finally determined whether the power to deport exists. Lao Chueco [1917]. S. (There can be noted as corroborative authority the following: U. S. U.. The effect of imprisonment and deportation is not dissimilar. Li Sing vs. 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 . Lau Ow Bew vs. 141 U. 486. S. U. The paraphrase language of the United States Supreme Court which has heretofore met with the approval of this court. U. Liu Hop Fong vs. of course. Go-Siaco [1909]. as in this case.) The majority decision admits the force of all this but then diverges to a contradictory conclusion.. such conforms to reason and justice.. The original action of this court. so would it be to fair to permit a petitioner in habeas corpus to be deported before he can submit his case. Rep.. Revised Statutes in connection with Jurigo vs. S. United States [1908]. Mapa.. in the exercise of its discretion. U. 490. 149 U. when necessary to safeguard the public welfare in detention. S. S. Ex Parte Green [1908]. 453. 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. 53. 40. 291.Now. Exclusion and Expulsion of Aliens in the United States. 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. 453. Henkel [1903]. 583. pages 664-667. S.. In re Mackane [1894]. U. [1891].. 557. This means that petitioner remains in custody of the courts. S.. S. either under bail or. More important still. 209 U. Bouve. Fong Yue Ting vs.. U. if it is legally possible. deportation is by way of punishment. Carson and Tracey. 209 U. vs. and in admitting the petitioner to bail. 205. Wright vs. 12 Phil. Go-Siaco [1909]. followed in a decision handed down by Justice Torres. Brush [1891. 37 Phil. No change has taken place the petitioner was released on bail is believed to be in accord with federal practice. is believed to be in accord conforms to reason and justice. 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. it is a serious thing to detain a foreigner who. 698. [1901]. S. vs. [1908]. S. S. 140 U. Nevertheless. S. vs. [1893]. 61 Fed. Rule 34. Johnson. S. 190 U. 490. 12 Phil.. habeas corpus proceedings are civil and not criminal in nature.

MALCOLM. CONCURRING: 1 7 Phil. 1918. 349. concur. Street and Fisher. 241. Rep.. without qualification.majority upon the pending matter.. not published. Footnotes 1 Decided January 23. JJ. 217 U. S.. . J.. The motion should be denied.