April 1918 - Philippine Supreme Court Decisions/Resolutions

Philippine Supreme Court Jurisprudence

Philippine Supreme Court Jurisprudence > Year 1918 > April 1918 Decisions > G.R. No. 13862 April 16, 1918 - IN RE: R. MCCULLOCH DICK

038 Phil 41:

EN BANC

[G.R. No. 13862. April 16, 1918 1 ]

In re R. MCCULLOCH DICK.

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

Acting Attorney-General Paredes, for the Government.

SYLLABUS

1. ALIENS.; DEPORTATION; POWER OF GOVERNOR-GENERAL; INTERFERENCE BY COURTS; ADMINISTRATIVE CODE OF 1917; HABEAS CORPUS. — It appearing that the Governor-General has power to deport aliens as an act of state; and that he has followed the procedure marked out for the exercise of that power in section 69 of the Administrative Code; and that the petitioner in the habeas corpus proceedings referred to in the opinion is a subject of a foreign power; this court has no power to interfere with or to control the action of the Governor-General in ordering the deportation of the petitioner.

2. ID.; ID.; ID.; ID.; ID. — The discretionary power to deport "undesirable aliens whose continued presence in the Philippine Islands is a menace to the peace and safety of the community," as an act of state, having been conferred upon the Governor-General, to be exercised by him upon his own opinion as to whether the facts disclosed by an investigation had in accord with section 69 of the Administrative Code justify or necessitate deportation in a particular case, he is the sole and exclusive judge of the existence of those facts, and no other tribunal is at liberty to reexamine or controvert the sufficiency of the evidence on which he acted.

3. ID.; ID.; CITIZENSHIP; DECLARATION OF INTENTION NOT SUFFICIENT. —It appearing that the petitioner was born in Scotland a subject of His Britannic Majesty the King of England, that he came to the United States during his minority; that he declared his intention to renounce his allegiance to the King of England and to become a citizen of the United States in the year 1902, in a court of competent jurisdiction in the State of New York; and that not long thereafter he came to the Philippine Islands and has continued to reside here ever since; that in the year 1910, after having been denied an American passport, he secured a British passport from the British Consul-General in Manila, and travelled under its protection in the United States and Europe, and that on that occasion he visited his old home in Scotland; that since declaring his intention to become a citizen of the United States, in the year 1902, he has taken no further steps looking to his naturalization other than to maintain his domicile, and to continue to reside within the territory of the United States; Held: That any such rights as the petitioner may have acquired by virtue of the declaration of his intention to become a citizen, fifteen years ago, have been lost by the lapse of time without taking any further steps to become naturalized, and by his acceptance and use of a British passport in the year 1910; Held, further, That he did not cease to be an alien and a subject of a foreign state by virtue of his mere declaration of intention to become a citizen of the United States.

4. ID.; ID.; ADMINISTRATIVE CODE OF 1917; INVESTIGATION BY GOVERNOR-GENERAL — The Governor-General of the Philippine Islands has power to deport aliens, as an act of state, upon prior investigation conducted in the manner and form prescribed in section 69 of the Administrative Code.

5. ID.; ID.; ID. — Deportations of aliens by the Governor-General, as an act of state, upon prior investigation conducted in the manner and form prescribed in section 69 of the Administrative Code may properly be regarded as made "under the combined powers of the Governor-General and the Philippine Legislature.

6. ID.; ID.; THE TIACO v. FORBES CASE. — The contentions of counsel for plaintiff in error in the Tiaco v. Forbes case, summarized in the memorandum of argument of counsel set out in the report of that case (228 U. S.; 549) and cited in full in the body of this opinion, which were renewed in the instant case, disposed of adversely in the very language of the Supreme Court of the United States in disposing of these contentions as advanced in the former case.

7. ID.; ID.; ID.; UNITED STATES CONSTITUTION; SUMMARY EXERCISE OF POWER. — "It is admitted that sovereign states have inherent power to deport aliens, and seemingly that Congress is not deprived of this power by the Constitution of the United States. Furthermore, the very ground of the power in the necessities of public welfare shows that it may have to be exercised in a summary way through executive officers." (Tiaco v. Forbes, supra.)

8. ID., ID.; ID., ID. — "As Congress is not prevented by the constitution, the Philippine Government cannot be prevented by the Philippine Bill of Rights alone." (Tiaco v. Forbes, supra.)

9. ID., ID., ID., CHINESE EXCLUSION LAWS. — "The extension of the Chinese exclusion and immigration laws to the Philippine Islands has no bearing on the matter. The right to remain, or instance, under the Act of April 29, 19(Y2, C. 641, section 4, 32 Stat., 176, does not prevail over a removal of an act of the state." (Tiaco v. Forbes, supra.)

10. ID.; ID.; THE "JONES LAW." — The "Jones Law" (Act of August 29, 1916), as expressly appears from the preamble, was enacted "to provide a more autonomous government" for the Philippine Islands, and the reasons assigned by the Supreme Court of the United States in the case of Tiaco v. Forbes, supra, for the recognition of the power to deport aliens in the Government of the Philippine Islands "as an incident of the self-determination, however limited, given to it by the United States," apply with even greater force under that statute than under the earlier organic acts (Act of March 2, 1901 and Act of July 1, 1902).

11. ID.; ID.; ID.; THE CHAN YICK SAM CASE. — The Jones Law "continued in force" the provisions of Act No. 2113, which were incorporated into and continued in force as a part of the administrative codes, and construed by this court, in the Chan Yick Sam case (31 Phil. Rep., 560) prior to their reenactment in the codes and prior to the enactment of the Jones Law as a grant of regulated power to deport aliens, upon prior investigation conducted in the manner and form prescribed in the statute.

12. ID.; ID.; ID.; ID.; STATUTORY CONSTRUCTION. — Even if it were true that the court erred in its interpretation of the meaning and effect of the language of Act No. 2113 in the Chan Yick Sam case, decided October 1, 1915 (supra); Held: That under well settled rules of statutory construction, this statute, when incorporated into and "continued in force" as a part of the Administrative Code of 1916, after it had been construed by this court; and when ratified and again "continued in force" by the enactment by Congress of the Jones Law; must be held to have been "continued in force" by Congress and the Philippine Legislature with the meaning and effect placed upon it in the Chan Yick Sam decision; that is to say, as a grant of regulated power to deport aliens after investigation conducted in the manner and form prescribed in the statute

13. ID.; ID.; CHINESE EXCLUSION LAWS AND IMMIGRATION ACTS APPLICABLE TO PHILIPPINE ISLANDS. — The contention that Congress, by the enactment of the Immigration Act of 1917, and the extension of its provisions to the Philippine Islands "occupied the field," and thereby deprived the Government of the Philippines of the power to deport aliens, except as provided in the Act itself, would seem to be substantially identical with the contention, adversely disposed of by the Supreme Court of the United States in the Tiaco v. Forbes case, to the effect that "the subject of the exclusion or expulsion of foreigners from any portion of the vast domains of the United States is one over which Congress has complete control" and that "Congress, both prior to and after the passage of the organic act had legislated for the Philippines regarding the regulation of the admission and exclusion of foreigners" by making the Chinese exclusion laws applicable to the Philippine Islands and by the enactment of the Immigration Acts of March 3 1903

14. ID.; ID.; ID.; ADMINISTRATIVE CODES OF 1916 AND 1917, IMMIGRATION ACT OF 1917. — Assuming for the sake of argument that the foregoing ruling is erroneous, and that the provisions of section 83 of the Code of 1916 were abrogated or repealed, in whole or in part by the extension of the Immigration Act of 1917 to the Philippine Islands, the Immigration Act itself must be held to have been superseded (under authority of the provisions of the act itself) to a like extent, by the reenactment of the provisions of the former code, in identical terms, as section 69 of the Administrative Code of 1917, with the approval of the President of the United States

15. ID.; ID.; ID.; ID. — By the enactment of Act No. 2113, section 83 of the administrative Code of 1916 and section 69 of the Administrative Code of 1917, the Philippine Legislature conferred upon the Governor-General a regulated authority to deport subjects of foreign powers, as an act of state, "upon prior investigation," conducted in the manner indicated in section 69 of the Administrative Code of 1917.

16. ID., ID., ID., ID. — In the case of Chan Yick Sam v. Prosecuting Attorney of Manila, decided October 1, 1915 (31 Phil. Rep., 560), the courts were called upon to consider the meaning and effect of the provisions of Act No. 2113, enacted February 1, 1912, and it was then held that this Act furnished full and lawful authority to the Governor-General to proceed to deport

17. ID.; ID.; LOCAL LEGISLATION. — A full statement of the whole course of local legislation on the subject of deportation of foreigners set out in the opinion.

18. ID.; ID.; ID. — The authority of the Governor-General to deport, expel, exclude, or repatriate subjects of foreign powers upon prior investigation is clearly derivable from the express terms of section 69 of the Administrative Code of 1917, having in mind the context and relative position in the code; its antecedents; the whole course of local legislation with relation to the matter of deportation of aliens; and the acquiescence of the legislator in the construction placed upon Act No. 2113 by this court in the Chan Yick Sam case (supra) and in the assumption by the Chief Executive of authority thereunder, of both of which he had notice when again and yet again he incorporated the provisions of Act No. 2113 in the Administrative

19. ID.; ID.; STATUTORY CONSTRUCTION; LANGUAGE OF STATUTE. — That which is plainly implied in the language of a statute is as much a part of it as that which is expressed.

20. ID.; ID.; HISTORICAL SKETCH OF OFFICE OF CHIEF EXECUTIVE; POWER OF PHILIPPINE GOVERNMENT VESTED IN GOVERNOR-GENERAL; ADMINISTRATIVE CODE OF 1917. — An examination of the history of the office of the Chief Executive in these Islands under American sovereignty discloses that, until and unless he is deprived of such authority by some act of Congress or of the Philippine Legislature, the power of the Philippine Government to deport aliens, as an act of state, is vested in the Governor-General by virtue of his office, subject only to the regulations prescribed in section 69 of the Administrative Code of 1917, or by future legislation on the subject. (President’s instructions to the Commission of April 7, 1900; the Executive Order of the President of June 21, 1901; the Spooner Amendment of the Act of Congress of March 2, 1901; section 1 of the Act of Congress of July 1, 1902; and the Act of Congress of August 29. 1916.)

21. ID.; ID.; AUTHORITY OVER EXERCISE OF POWER BY GOVERNOR-GENERAL CONFERRED UPON PHILIPPINE LEGISLATURE. — Authority to control, limit, restrict, and even to prohibit the exercise by the Governor-General of this power, by appropriate legislation, was conferred upon the Philippine Legislature, the elected representatives of the people of the Islands, under the terms of Jones Law (Act of August 29, 1916), providing a more autonomous form of government for the people of the Philippine Islands.

22. ID.; ID.; ID.; THE "JONES LAW" CONTAINS AUTHORITY. — The Jones Law (Act of August 29, 1916) contains a sufficient grant of authority to the Philippine Legislature to provide for the exercise of the power of the Philippine Government to deport aliens through such instrumentalities, and under such appropriate regulations, as it may deem proper to prescribe; or in like manner to ratify, confirm or concede authority for the exercise of such power by the Chief Executive.

23. ID.; ID.; CIVIL POWER VESTED IN CHIEF EXECUTIVE SINCE MILITARY GOVERNMENT. — The essentially civil power to deport aliens, as an act of state, was originally vested in the Military Governor and thereafter in the first Civil Governor; and it has continued in the office of the Chief Executive, the Governor-General, ever since, except in so far as his power has been restricted, limited, or controlled by the various acts of the Philippine Legislature to which reference has already been made.

24. ID.; ID.; POWER NOT WITHDRAWN. — There is nothing in the history of the legislative relations of the Philippine Islands and the United States which would indicate that the power, which undoubtedly was vested in the first Civil Governor, has been withdrawn from any of his successors. Doubtless the power to legislate upon the subject was conferred upon the Philippine Legislature under the Jones Law; but there is nothing in that Act to indicate the intention of Congress by its enactment and without further legislation, local or congressional, to abrogate the regulated system then in force as an act of state, and to deprive the Governor-General of the power vested in him prior to its enactment.

25. ID.; ID.; ID.; REGULATIONS. — The established doctrine in this jurisdiction is that the power to exclude or expel aliens is vested in the political department of the government, to be regulated by treaty or Act of Congress of the United States, or by Act of the Philippine Legislature; and, under the laws as they now stand on the statute books, to be executed by the Governor-General, the supreme executive authority, according to such regulations.

26. ID.; ID.; INTERNATIONAL LAW. — The instances in which aliens may lawfully and properly be deported as an act of state must be determined upon recognized principles of international law; the legislature, when it conferred a regulated power on the Governor-General to deport aliens, upon prior investigation, in all instances in which the Government of the Philippines may deport aliens as an act of state, did not confer an arbitrary power to deport any alien upon a mere whim as is suggested, but only such aliens as may properly and lawfully be deported under recognized rules of international law.

27. ID.; ID.; ID. — While it is impossible to enumerate the cases wherein aliens may properly and lawfully be deported under recognized rules of international law, it is not impossible to lay down "a rule of law defining the standard of conduct for the violation of which the right of asylum which aliens enjoy under our laws is to be forfeited." Indeed few rules of law are more firmly established both in international law and in American municipal law than that every alien forfeits his right of asylum in the country in which he resides, in the absence of treaty provisions to the contrary, when his conduct or his mode of life renders his presence there inimical to the public interests.

28. ID.; ID.; ADMINISTRATIVE CODE OF 1917; LEGISLATIVE GRANT TO GOVERNOR-GENERAL OF REGULATED POWER SUFFICIENT. — Even if the legislative grant to the Governor-General of power to deport aliens upon prior investigation, conducted in the manner and form prescribed in section 69 of the Administrative Code, should be held to be ineffective as an unlimited and unrestricted grant of the power of the Philippine Government to deport aliens as an act of state; it should, at least, be held to; be a sufficient grant of a regulated power to deport aliens, upon grounds such as those upon which the order to deport petitioner in the instant case is based; that is to say, when it is found that the "person whose deportation is contemplated" is "an undesirable alien, whose continued presence in the Philippine Islands is a menace to the safety and peace of the community."cralaw virtua1aw library

29. ID.; ID.; DELEGATION OF POWERS TO DEPORT ON CHIEF EXECUTIVE — Let it be noted that we are not discussing, at this time, the political wisdom of conferring powers to deport on the Chief Executive. It is not within the province of the courts to pass upon the wisdom or unwisdom of legislative enactments. The question is not whether Congress and the Philippine Legislature should have delegated authority of this kind, but whether such authority could be delegated under the laws and the Constitution of the United States. No reasons, other than those of mere political expediency, have been suggested for denying the power of the Legislature to confer such authority: and yet as was said by the Supreme Court of the United States in the Tiaco v. Forbes case (supra), "The very ground of the power in the necessities of the public welfare shows that it may have to be exercised in a summary way through executive officers."cralaw virtua1aw library

30. ID.; ID.; ID. — The truth is, of course, that the instances in which aliens may be deported as an act of state must be determined upon recognized principles of international law; and that the Legislature, when it conferred a regulated power on the Governor-General to deport aliens, upon prior investigation, in all instances in which the Government of the Philippines may deport aliens as an act of state, did not confer an arbitrary power to deport any alien upon a mere "whim" as is suggested, but only such aliens as may properly and lawfully be deported under recognized rules of international law.

While it is impossible to enumerate the cases wherein aliens may properly and lawfully be deported under recognized rules of international law, it is not impossible to lay down "a rule of law defining the standard of conduct for the violation of which the right of asylum which aliens enjoy under our laws is to be forfeited." Indeed few rules of law are more firmly established both in international law and in American municipal law than that every alien forfeits his right of asylum in the country in which he resides, in the absence of treaty provisions to the contrary, when his conduct or his mode of life renders his presence there inimical to the public interests. As was said by a standard authority on international law "Some writers have essayed to enumerate the legitimate causes of expulsion. The effort is useless. The reasons may be summed up and condensed in a single word: The public interest of the State. Bluntschli wished to deny to states the right of expulsion but he was obliged to acknowledge that aliens might be expelled by a simple administrative measure." Bonfils, Manual du Droit Int. Public, sec. 442; Moore’s International Law Digest, Vol. IV, p. 68.

31. ID.; ID.; ID.; CONSTRUCTION OF STATUTE. — Even if it were true that the court erred in its interpretation of the language of the statute in the Chan Yick Sam case (promulgated October 1, 1915; 31 Phil. Rep., 560) we think that under well settled rules of statutory construction, this statute, when incorporated into and "continued in force" as a part of the Administrative Code, after it had been construed by this court, and when ratified and again "continued in force" by the enactment by Congress of the Jones Law; must be held to have been thus "continued in force" by Congress and the Philippine Legislature with the meaning and effect placed upon it in the Chan Yick Sam decision (supra); that is to say, as a grant of regulated power to deport aliens after investigation conducted in the manner and form prescribed in the statute

32. ID.; ID.; ID.; CONSTITUTIONALITY OF STATUTE. — In eloquent and impassioned periods counsel for the petitioner urge us to order his discharge from detention, and thus "conserve the sacred traditions of personal liberty maintained by the founders of the American Republic and their English ancestors;" and we are told that to sustain the regulated power of the Governor-General to deport aliens from the Philippine Islands as an act of state, is to challenge the principles and authority of Magna Charta, the Constitution of the United States, the Philippine Bill of Rights and to set ourselves against all the historic precedents established by the Anglo-Saxon race through centuries of toil, and blood, and oppression.

But in answer to all this we need only say in addition to what has been said already:chanrob1es virtual 1aw library

1. That the Supreme Court of the United States was not deterred by such considerations from upholding the power of the Governor-General in the Tiaco v. Forbes case (supra) a few years ago, when it said that the summary deportation of the plaintiffs in that case did not deprive them of liberty "without due process of law;" and that "As Congress is not prevented (from deporting aliens) by the Constitution, the Philippine Government cannot be prevented by the Philippine Bill of Rights alone."cralaw virtua1aw library

2. That the founders of the American Republic, themselves, saw nothing in the Constitution to deter them from placing the Alien and Sedition Laws upon the statute books, when the need therefor arose a few years after that great instrument was adopted (1798). It will be remembered that it was the members of the Federalist party, many of whom had taken a leading part in the constitutional convention, who were responsible for the enactment of the statute which empowered the President to deport all aliens whom he should judge dangerous to the peace and safety of the community. And though, as a result of popular agitation, this statute was not reenacted after it had expired under its own terms, that fact furnishes no ground for argument either for or against its constitutionality. The statute never was judicially tested, and we have no authoritative judicial pronouncement as to its constitutionality.

3. That the great English judges do not find in Magna Charta nor elsewhere in the British Constitution anything which forbids the deportation of aliens by executive authority in the colonies of the Empire, even in the great self-governing colonies such as Canada. "Eminent English judges, sitting in the Judicial Committee of the Privy Council, have gone very far in supporting the exclusion or expulsion, by the executive authority of a colony, of aliens having no absolute right to enter its territory or to remain therein." (In re Adam, 1 Moore, P. C., 460, quoted in Fong Yue Ting v. United States 149 U S., 698, 709.) "The Crown has power to exclude an alien and may delegate that power to Canada." (Atty. -Gen. v. Cain A. C., 542, reversing Re Gilhula, 10 Ont. L. Rep. . 469.)

Per JOHNSON, J., dissenting:chanrob1es virtual 1aw library

33. COURTS; JURISDICTION; RIGHT OF THE COURTS TO INQUIRE INTO AN ORDER OF DEPORTATION MADE BY THE EXECUTIVE DEPARTMENT OF THE GOVERNMENT. — While the courts hesitate, and rightfully so, to inquire into the legality of the acts of the executive department of the Government, yet they are without discretion in the premises in cases where it is alleged that a person is being illegally deprived of his liberty by that department. The law makes no distinction with reference to the person or persons who are responsible for illegal and unlawful detentions. The mere fact that such alleged illegal deprivation of liberty is caused by the Chief Executive, in the face of the mandatory provisions of the law, is no sufficient excuse or justification for a refusal on the part of the courts to take jurisdiction for the purpose of inquiring into such alleged illegal detention. Under the system of checks and balances, by virtue of the existence of the different departments of the Government in the Government of the United States and the territories subject to its control, it becomes the legal and bounden duty of the courts to inquire into the legality, when called upon so to do of the acts of other departments of the Government and to make pronouncements thereon. It is the indisputable and sworn duty of the courts, and one to which every inferior consideration must be sacrificed, to act as a faithful guardian of the personal liberty of the citizen and to give ready and effectual aid to the means provided by law for its security. Nor can the courts hesitate in promptly enforcing a due return to the writ in a jurisdiction where the law knows no superiors. The Supreme Court of the United States has in numerous cases held that it will intervene, and pronounce illegal and void any act of any official of any department of the Government when by such act any person has been deprived of his liberty without due process of law. Such authority is exercised without reference to whether the person so deprived of his liberty is a citizen, denizen, or alien. Of course, we are not here discussing war powers. They are not involved here. There is a clear distinction between pronouncing the acts of an official illegal and void and holding him liable in damages when he has acted in good faith and especially when the act complained of was an act in state. If an act of the legislative or executive department of the Government is to be held illegal upon judicial inquiry, because it deprives persons of their liberties, it is not because the courts have any control over the legislative or executive power, but because the act itself is forbidden by the fundamental law of the land, and because the will of the people, as declared in such fundamental law, is paramount over all of the departments of the government and must be obeyed by all public officials as well as private individuals. In pronouncing a statute, or a particular act of any individual or official in any department of the Government, illegal, the courts are simply interpreting the meaning, force and application of the fundamental law of the State. (Case v. Junta de Sanidad and Heiser, 24 Phil. Rep., 250.) We are of the opinion that the court has full and ample power and jurisdiction to make the inquiry invoked by the petitioner.

34. ID.; DECISIONS; JURISPRUDENCE REVOKED BY SUBSEQUENT LEGISLATION. — It is a rule well recognized that the Legislative Department of the Government may revoke or recall jurisprudence established by the Judicial. Department of the Government. An amendment of the law may be such as to entirely change and abrogate a long line of established jurisprudence. For example, in the case of Pollock v. Farmers’, etc. Co., the Supreme Court of the United States decided that an Act, providing for an income tax, was unconstitutional. (157 U. S., 429; 158 U. S., 601.) In 1913, by virtue of a change of the organic law, a similar act was held to be perfectly valid. Many other cases might be given to show how jurisprudence has been revoked and modified by subsequent legislation.

35. ALIENS; SOVEREIGN GOVERNMENTS; RIGHT TO DEPORT ALIENS. — It is a doctrine so well established now that it scarcely needs citation of authorities in its support that "the right of a nation to expel or deport foreigners who have not been naturalized or taken any steps towards becoming citizens of the country rests upon the same ground and is as absolute and unqualified as the right to prohibit and prevent their entrance into the country. The power to exclude aliens and the power to expel them rest upon one foundation, are derived from one source, are supported by the same reasons, and are, in truth, by the exercise of one and the same national or sovereign power. Such power is an incident of every independent nation or sovereign. It is a part of its independence, for if it could not exclude aliens it would be, to that extent, subject to the control of other powers. The power of exclusion of foreigners being an incident of sovereignty or nationality belonging to the Government of the United States as a part of its sovereign powers delegated by the Constitution, the right to its exercise at any time when, in the judgment of the political department of the Government, the interests of the country require it, can not be granted away or restrained on behalf of anyone. Such sovereign or national powers cannot be abandoned or surrendered nor can their exercise be hampered when needed for the public by any consideration of private interest. It is an ancient maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to preservation, to forbid the entrance of foreigners within its dominions or to admit them only in such cases and upon such conditions as it may see fit to prescribe either by law or by treaty.

36. ID.; POWER TO DEPORT; IN WHAT DEPARTMENT OF THE GOVERNMENT IS POWER LODGED IN THE UNITED STATES. — In the United States, from the time of its organization, this power has been vested in the political department of the Federal Government composed of the executive and legislative departments. In the United States the power to exclude or expel aliens may be exercised in the political department of the Government (a) by the President and Senate in their combined treaty-making power, or (b) through statutes enacted by Congress. Justice Gray, speaking for the court, in the case of Eskiu v. United States, said: "In the United States this power is vested in the National Government, to which the Constitution has committed the entire control of international relations, in peace as well as in war. It belongs to the political department of the Government, and may be exercised either through treaties made by the President and Senate, or through statutes enacted by Congress, upon whom the Constitution has conferred Dower to regulate commerce with foreign nations." The Constitution of the United States speaks with no uncertain sound upon this subject. That instrument, established by the people of the United States as the fundamental law of the land, has conferred upon the President the executive power; has authorized him, by and with the consent of the Senate, to make treaties and has made it his duty to take care that the laws be faithfully executed The Constitution has granted to the Congress the sole power to regulate commerce with foreign nations including the importation of goods and the bringing of aliens into the ports of the United States and to make all laws necessary and proper for carrying into execution these powers and all other powers vested by the Constitution in the Government of the United States or in any department or officer thereof. The power to exclude and to expel aliens in the United States is vested in the political department of the Government, and the exercise of such power is regulated by a treaty or by Act of Congress and is executed by the executive authority according to such regulations.

37. STATES, TERRITORIES AND DEPENDENCIES OF THE UNITED STATES; RIGHT TO DEPORT ALIENS. — Considering then the Federal Government has reserved to itself, as against the States thereof, the exclusive right to regulate the question of the right of aliens to enter and to exclude them, and that such right is denied to the State, can we conclude that the territories of the United States are possessed of this power? Territories and dependencies of the United States are mere agents of the Federal Government, organized under special Acts of Congress (charters) with certain specific, general and limited powers. Their powers, like those of every other agent, whatever they may be, must be found in the charter, expressed or by necessary implication from such expressed powers. Even the provisions of the Constitution of the United States are not applicable to the territories and dependencies of the United States, unless they are expressly made so. (Downes v. Bidwell, 182 U. S., 224, 267.) The Territories and dependencies of the United States are governed by virtue of special or general laws made applicable thereto. They are not organized under the Constitution, nor subject to its complex distribution of the powers of government, as the organic law. They are the creations, exclusively, of the legislative department of the government, and subject to its supervision and control. The power of Congress over the territories of the United States is general and plenary, arising from and incidental to the right to acquire the territory itself, and from the power given by the Constitution to make all needful rules and regulations respecting the territory or other property belonging to the United States.

38. GOVERNMENT OF THE PHILIPPINE ISLANDS; RIGHT TO DEPORT ALIENS. — While perhaps the Government of the United States in the Philippine Islands formerly possessed the right to deport aliens, and while it has the authority now, under proper legislation, it has not acted and, therefore, under the law now no such power exists. The contention that section 69 of Act No. 2711 furnishes such authority is not tenable. That section provides a procedure only. While there is some apparent conflict in the authorities, we are of the opinion, especially in matters touching the life, liberty, and property of the inhabitants of the Philippine Islands, that no substantive law or power can be created by the mere adoption of a simple procedural law. A procedural law purely, which does not define the particular conditions and circumstances to which it may apply, cannot be construed into the creation of rights and powers which do not otherwise exist. In our opinion, section 69 was adopted under a misapprehension of the actual state of the law as it exists now and cannot be held to have established the right to exercise the power or authority contended for in the premises.

D E C I S I O N

CARSON, J. :

The petitioner, R. McCulloch Dick, prays for his discharge from detention by the acting chief of police of the city of Manila, who took him in custody under authority of an executive order, a copy of which is set out in the body of this opinion.

A writ of habeas corpus was issued by one of the members of this court upon the following representations of the petitioner:jgc:chanrobles.com.ph

"(1) That he is unlawfully restrained of his liberty

"(2) That he is so unlawfully restrained of his liberty by Anton Hohmann, acting chief of police of the city of Manila.

"(3) That the place where he is so restrained is the city of Manila, Philippine Islands.

"(4) That the cause of his detention is an order issued by the Governor-General of the Philippine Islands in accordance with the provisions of section 69 of the Administrative Code (Act No. 2711), a true copy of such order being hereunto annexed, marked Exhibit A and made a part of this petition, as well as the proceedings on which said order of deportation was based and issued, a copy whereof is also attached, marked Exhibit B and made a part of this petition.

"(5) That the said detention and restraint are illegal and that the illegality thereof consists in this, to wit:jgc:chanrobles.com.ph

"That the Governor-General of the Philippine Islands had no authority to issue such order of deportation, and that such order of deportation is in violation of the Constitution, treaties, and laws of the United States, and of the Law of Nations, in force in the Philippine Islands.

"(6) That the petitioner is not restrained of his liberty nor is he in the custody of an officer under process issued by a court or magistrate, or by virtue of a judgment or order of a court of record."cralaw virtua1aw library

The executive order referred to in the petition is couched in the following terms:jgc:chanrobles.com.ph

"OFFICE OF THE GOVERNOR-GENERAL OF THE PHILIPPINE ISLANDS.

"To the Chief of Police, city of Manila, or to any peace officer.

"GREETING: Whereas, after an investigation duly conducted in accordance with the provisions of section 69 of the Administrative Code (Act No. 2711), it appears that R. McCulloch Dick is a subject of a foreign power, residing in the Philippine Islands;

"Whereas it further appears that said R. McCulloch Dick is an undesirable alien, whose presence in the Philippine Islands is a menace to the peace and safety of the community;

"Now, therefore, by virtue of the powers in me vested, you are hereby authorized and ordered to deport said R. McCulloch Dick to the neighboring Colony of Hongkong, and thereafter to exclude him from these Islands.

"In testimony whereof I have hereunto set my hand and caused the seal of the Government of the Philippine Islands to be affixed.

"Done at the city of Manila this 18th day of March, in the year of our Lord nineteen hundred and eighteen.

(Sgd.) FRANCIS BURTON HARRISON,

" [SEAL] "Governor-General.

"Served on Mr. Dick at 4 p. m., 18/3/18.

(Sgd.) ’GEORGE SEAVER,

"Chief of Police."

The record of the proceedings had in the course of the investigation referred to in the executive order is before us, and discloses that a "hearing" was conducted by Colonel D. P. Quinlan, Inspector General of the Philippine National Guard, Commissioner, under the following authority:jgc:chanrobles.com.ph

"OFFICE OF THE GOVERNOR-GENERAL OF THE PHILIPPINE ISLANDS.

"February 23, 1918.

"SIR: Pursuant to authority vested in me by section sixty-nine of Act 2711, known as the Administrative Code of 1917, you are hereby designated as the agent of the Governor-General for the purpose of investigating and reporting upon charges which have been preferred against R. McCulloch Dick, the editor and proprietor of the Philippines Free Press, a periodical published weekly in the city of Manila, in connection with the publication of certain articles in that paper which tend to obstruct the Government of the Philippine Islands in policies inaugurated for the prosecution of the war between the United States and the German Empire, and other articles which have tended to create a feeling of unrest and uneasiness in the community. It is desired that you submit your report of this investigation to the Governor-General at the earliest possible date.

Very respectfully.

(Sgd.) FRANCIS BURTON HARRISON,

"Governor-General

"Colonel D. P. QUINLAN,

"Philippine National Guard, Manila."

It further appears that on February 25, 1918, notice in writing that a hearing would be had in pursuance of the above-cited executive order on March 1, 1918, was duly served upon, and accepted by the petitioner; that the petitioner was present at the hearing, and was heard by himself and counsel; that he produced witnesses in his own behalf, and was allowed to cross-examine the opposing witnesses; and that at the conclusion of the hearing, counsel for the petitioner made the following statement:jgc:chanrobles.com.ph

"I want to thank the Commissioner for his courtesy throughout the matter. I am sure that his conduct has been absolutely impartial, and I have no complaint to make. I don’t know how the investigation could have been conducted along fairer broader lines, than it has been conducted, and I am sure that Colonel Quinlan’s standing as an Army officer will not be at all prejudiced by anything he has done or what has occurred at this investigation."cralaw virtua1aw library

These summary proceedings were set in motion by a complaint filed by a number of officers of the National Guard, in the form of a protest as follows:jgc:chanrobles.com.ph

"Whereas the weekly ’Free Press’ has for sometime been devoting its columns to a malicious campaign of discredit against the National Guard and its officials;

"Whereas the National Guard represents one of the most noble ideals of the Filipino people and one of the most sincere proofs of the loyalty of this country to the cause of the United States;

"Whereas this campaign of defamation and discredit carried out by the said weekly, published and edited by Americans, tends to belittle the National Guard and might in its effects, create discord between Americans and Filipinos, just at the moment that the latter have staked its honor and its word with America in this war;

"Whereas even admitting that in the ranks of the National Guard there may exist some soldiers who with their actions dishonor the uniform they wear — which after all occurs in every human institution even the most sacred — the campaign of the Free Press could not be considered as an honest one, but this weekly is in fact pouring distrust and sarcasm of the most venemous character;

"Whereas the Free Press in reporting certain dishonorable acts of certain soldiers has not taken the pains to inquire as to the penalty which the rules apply to those who do not honor the uniform, thus doing rank injustice to the authorities of the National Guard and the good name of this organization;

"Whereas the habitual malign conduct of the Free Press in its campaigns of discredit renders its ratifications to be as meaningless as its attacks;

"Be it therefore resolved, that an energetic protest be made, as it is hereby made, admitting of no rectifications, against the base conduct of the weekly Free Press and to denounce its attitude before the Government and the entire community of the Philippines as showing this weekly to be the worst enemy of the people’s ideals and of the National Guard, in using its columns to humiliate not only before the eyes of strangers but of the Filipinos as well, the National Guard in its period of formation and development.

[Translated from the original in Spanish. ]

The specific charges upon which the investigation was based will be found in the following copy of the notice served upon the petitioner at the outset of the proceedings;

"121 ARZOBISPO, MANILA, P. I.,

"February 23, 1918.

"Mr. R. MCCULLOCH DICK,

"Editor and proprietor, Philippines Free Press, Manila, P. I

"SIR: The attention of His Excellency the Governor-General of the Philippine Islands has been called to certain articles appearing in the Philippines Free Press, a periodical published in the city of Manila in which you appear as editor and proprietor. Aside from those matters in your previous issues relevant to show inclination or intent, the particular matter which is referred to him as a charge against you is that contained in articles in the issue of the Press of February 16,1918, in connection with National Guard.

"The specific publications forming the basis of these charges appear in column 1, on page 1 of the issue of February 16, 1918, and in the opening paragraph of the second column of page sixteen of the same issue. The allegation being that the indictment contained therein is not only a wholesale untruth but that its publication even in the event of guilt of individuals, — a condition not proven — the arraignment of a body of citizens of the Philippine Islands included in its military force, is without warrant, and also that in view of the fact that the United States Government is a belligerent in the present war, and that the Congress of the United States having authorized the use of this force, your attempt tends not only to bring it into ridicule but also is an unjust, unlawful, malicious, and essentially seditious publication, and cannot be considered other than as prima facie tending to obstruct the Government of the Philippine Islands in the formation of measures inaugurated for the prosecution of the war between the United States and the German Empire, and its policies with respect to these nations and peoples associated with it in the performance of the war objects.

"Pursuant to authority vested in His Excellency the Governor-General of the Philippine Islands, by section 69 of Act 2711, known as the Administrative Code of 1917, the undersigned has been designated as the agent of the Governor-General for the purpose of investigating and reporting upon your conduct and responsibility in connection with the publication of these articles, which I am directed to have you consider as forming the basis of charges lodged against you with the Governor-General, the publication of which it is charged, that to obstruct the Government of the Philippine Islands in policies inaugurated for the prosecution of the war between the United States and the German Empire, and that these specific publications with other articles in your paper in criticism of the allied efforts in prosecution of this war, or the policies of our associates in this war all of which apparently show that your interest in publishing the latter articles obstructs the Government of the United States and tends to create a feeling of unrest and uneasiness in the community, and marks the party responsible for the Policies and declarations in your paper as being designatedly hostile to the paramount interests of the power exercising sovereignty in these Islands and the measures of the Philippine people inaugurated to support those policies.

"As the procedure prescribed by section sixty-nine of the Administrative Code is to be observed in this particular case, I take the liberty of quoting it here in full:jgc:chanrobles.com.ph

"‘SEC. 69. Deportation of subject of a foreign power. — A subject of a foreign power residing in the Philippine Islands shall not be deported, expelled, or excluded from said Islands or repatriated to his own country by the Governor-General except upon prior investigation, conducted by said executive or his authorized agent, of the ground upon which such action is contemplated. In such case the person concerned shall be informed of the charge or charges against him and he shall be allowed not less than three days for the preparation of his defense. He shall also have the right to be heard by himself or counsel, to produce witnesses in his own behalf, and to cross-examine the opposing witnesses.’

"I will conduct this hearing in the Office of the Adjutant-General of the National Guard at 121 Calle Arzobispo of this city, Friday morning at 9 o’clock, March 1, 1918; said hearing to continue throughout the day until completed My function, you are advised, is solely administrative and confined to a hearing of and a report upon the facts.

(Sgd.) "D. P. Q.,

"DENNIS P. QUINLAN, Colonel and Inspector General,

N. G., P. I."cralaw virtua1aw library

One of the articles, upon which these charges were based appeared on the first page of the Philippine Free Press of February 16, 1918, under a striking cartoon giving point to the contents. It is as follows:jgc:chanrobles.com.ph

"It hasn’t come yet, but it is expected soon, that call of President Wilson which will incorporate the Philippine National Guard in the national forces of the United States. And, when it comes, look out! For it brings with it an increase of the base pay of a soldier of the Guard from P12 a month to P60 a month, and clothes and chow, and, my! what chow! The best in the world! For Uncle Sam thinks nothing too good for his soldier boys.

"And you just watch ’em when the call comes. Talk about a dearth of patriots for the Guard! Why, the moment the news gets around that you can get P60 a month and your belly full by enlisting, just see them come — see them streak for the recruiting office! Behold the cocinero drops his frying-pan, the muchacho his dishrag, the cochero his whip, the cargador his pinga, the escribiente his pen, the farmhand his bolo. See them hit the high places! For who, after slaving for eight and nine and ten and fifteen and twenty pesos a month wouldn’t jump at the chance to be a soldier and carry a gun and have a fine and easy time at pesos sixty! Talk about manna from the skies! Talk about the world with a fence around it! Talk about heaven on earth! Talk about Jay Gould and Carnegie and Roths-child and Rockefeller! Piff!

"Flanders mud, you say, and being blown to pieces with a big Black Maria? Why, at P60 a month our Juans and Pedros and Dalmacios will eat Flanders and dance ragtime to the tune of the Black Marias.

"If ever that call come there is going to be one great and awful time here. And there is going to be some tall swearing in proud Castillian. For the market in cocheros and muchachos and cocineros is going to be tight as a drum and they will simply turn up their noses disdainfully at anything less than the wages of the Guard — P60 a month. What ho! the Guard!"

The second article to which specific reference was made by Colonel Quinlan was published in the editorial column of the same issue of the Free Press, and is as follows:jgc:chanrobles.com.ph

"KNOW HOW TO FORAGE.

"If the men of the Philippine National Guard can fight like they can steal then the Kaiser and his legions had better beat it before the boys from the Philippine are sent ’over there. The details of the first case which appeared in the papers have slipped us now. It was not long thereafter, however, till there was recorded the Manila Hotel case, where the turkeys kept disappearing. When the watch was set during the night and the thief caught — National Guard! Then there was the case of a candidate for a commission as officer of the Guard. Took off his coat, he did, to be measured for the physical test. When he came to put it on again, lo, his watch was gone. Again a guardsman! The latest testimonial to the Guards’ ability to get away with things comes from the Carnival! When the cakes mysteriously disappeared from the Tea Cup Inn on the last night of the big festival, it was to the tent of the sentries that the telltale tracks led, and there were found the crumbs of the midnight feast. Again the Guard! In one of Shakespeare’s plays there is mention of three soldier rogues in buckram. The guard is not in buckram, but apparently it has its rogues."cralaw virtua1aw library

It is agreed on all sides, and expressly admitted by counsel for the petitioner, that if the Governor-General of the Philippine Islands has power to deport aliens as an act of state; and if he has followed the procedure marked out for the exercise of that power in section 69 of the Administrative Code; and if the petitioner is a "subject of a foreign power;" this court has no power to interfere with or to control the action of the Governor-General in ordering the deportation of the petitioner.

If the discretionary power to deport aliens, as an act of state, has been conferred upon the Governor-General, to be exercised by him upon his own opinion as to whether the facts disclosed by an investigation had in accord with section 69 of the Administrative Code, justify or necessitate deportation in a particular case, he is the sole and exclusive judge of the existence of those facts, and no other tribunal is at liberty to reexamine or to controvert the sufficiency of the evidence on which he acted. (Martin v. Mott [1827], 12 Wheat., 19, 31.)

Upon both principle and authority the proposition thus stated is not open to question (Cf. Severino v. The Governor-General of the Philippine Islands and Provincial Board of Occidental Negros, 16 Phil. Rep., 366, and cases there cited); and although it has been suggested that the power of the courts to review the action of the Chief Executive is subject to further limitations, we do not deem it necessary to consider or to determine at this time the precise line of demarcation of judicial and executive authority in cases such as that now under consideration, because we are satisfied that the petitioner’s prayer for discharge from custody must be denied upon the specific grounds which he himself admits to be sufficient, if they exist, to deprive us of power to interfere with or to control the action of the Governor-General in ordering his deportation.

We are of opinion that the Governor-General of the Philippine Islands has power to deport aliens as an act of state, "upon prior investigation" conducted in the manner and form prescribed in section 69 of the Administrative Code; that in ordering the deportation of the petitioner he followed the procedure marked out for the exercise of that power in section 69 of the Administrative Code; and that the petitioner is a "subject of a foreign power" as that term is used in this section of the code.

We shall take up each of these propositions for consideration separately, but for convinience, they will be examined in inverse order.

(1) Petitioner is a "subject of a foreign power" as that term is used in section 69 of the Administrative Code.

The record discloses and it is expressly admitted that petitioner was born in Scotland, a subject of His Britannic Majesty the King of England; that he came to the United States during his minority; that he declared his intention to renounce his allegiance to the King of England and to become a citizen of the United States in the year 1902, in a court of competent jurisdiction in the State of New York; that not long thereafter he came to the Philippine Islands and has continued to reside here ever since; that in the year 1912, after having been denied an American passport, he secured a British passport from the British Consul-General in Manila, and travelled under its protection in the United States and Europe; that on that occasion he visited his old home in Scotland; and that since declaring his intention to become a citizen of the United States, in the year 1902, he has taken no further steps looking to his naturalization other than to maintain his domicile, and to continue to reside within the territory of the United States.

We are of opinion that any such rights as the petitioner may have acquired by virtue of the declaration of his intention to become a citizen, fifteen years ago, have been lost by the lapse of time without taking any further steps to become naturalized, and by his acceptance and use of a British passport in the year 1912; and we are of opinion, further, that he did not cease to be an alien and a subject of a foreign state by virtue of his mere declaration of intention to become a citizen of the United States.

It would seem unnecessary to enter upon an extended discussion of the grounds upon which we rest our conclusions in this regard, and we content ourselves with some citations of textbook and other authority which, as we think, sufficiently dispose of all the contentions of counsel for the petitioner upon this branch of the case.

"Effect of declaration of intention. — Though mere declaration of intention in no wise confers citizenship or absolves the party making it from allegiance to the Government of the country from which he comes, yet our Secretary of State is authorized by Act of Congress to issue passports, at his discretion, to persons who are not fully naturalized in certain cases." (Hershey’s International Law, pp. 251-2; sec. 1, Act of March 2, 1907.)

The Act of Congress referred to provides:jgc:chanrobles.com.ph

"Where any person has made a declaration of intention to become such a citizen as provided by law, and has resided in the United States for three years, a passport may be issued to him entitling him to the protection of the Government in any foreign country: Provided, That such passport shall not be valid for more than six months and shall not be renewed, and that such passport shall not entitle the holder to the protection of this Government in the country of which he was a citizen prior to making such declaration of intention." (Sec. 1 of Act of March 2, 1907.)

"Clearly, an alien is not naturalized until the order divesting him of his former nationality and making him a citizen of the United States has been signed by a judge of a court having jurisdiction." (26 Ops. Atty. Gen., [1906-1908] 612.)

"A mere ’declaration of intention’ by an alien, under the naturalization laws of the United States, to become a citizen, &c., and to renounce all allegiance to a foreign, his natural sovereign, in a judicial point of view, is not sufficient of itself, and without being perfected by an actual renunciation, to prevent such alien from being regarded as a ’foreign citizen or subject,’ . . . ." (Baird v. Byrne [C. C., 1853] Fed. Cas. No. 757.)

"A foreign-born resident of the United States, who has merely declared his intention to become a citizen, but has never complied with any other provision of the naturalization laws, is none the less an alien," although he may have been given the right to vote by state laws. (City of Minneapolis v. Reum [1893], 56 Fed., 576, 6 C. C. A., 31.)

"A declaration of intention to become a citizen of the United States does not make one a naturalized citizen." (Creagh v. Equitable Life Assur. Soc. [C. C., 1898l, 88 Fed., 1; 11 U. S. Compiled Statutes, 1916, Ann., 14034.)

"An alien’s declaration of his intention to become a citizen of the United States did not make him a citizen, he never having taken out his naturalization papers." (Minneapolis v. Reum [1893], 56 Fed., 576, 578; 6 C. C. A., 31; Wallenburg v. Missouri Pac. Ry. Co. [C. C., 1908], 159 Fed., 217; In re Polsson, Id., 283; Dorsey v. Brigham [1898], 52 N. E., 303; 177, Ill., 250; 42 L. R. A., 809; 69 Am. St. Rep., 228; State v. Collister [1905], 27 Ohio Cir. Ct. R., 529.)

"Mere declaration of intention does not confer citizenship upon the declarant. The declaration is merely an expression of purpose, and has not the effect, either of naturalization or expatriation. By it the alien simply records his intention to renounce his present allegiance on becoming a citizen of the United States. He remains an alien until naturalization is complete according to our laws." (Lans v. Randall, 4 Dill., 425; Fed. Cas. No. 8,080; Maloy v. Duden, 25 Fed., 673; Re Moses, 82 Fed., 995.)

x x x

"While the laws of several of the states of the Union extend the right of suffrage to aliens who have declared their intention to become citizens of the United States, a State cannot make the subject of a foreign government a citizen of the United States, or confer on him the rights and privileges appertaining to such citizenship.

x x x

"A state may confer on foreign citizens or subjects all the rights and privileges it has the power to bestow, but when it has done all this, it has not naturalized them. They are foreign citizens or subjects still, within the meaning of the Constitution and laws of the United States. See also Boyd v. Nebraska, 143 U. S., 160; 36 L. ed., 109; 12 Sup. Ct. Rep., 375." (Van Dyne Citizenship of the U. S., pp. 66-67.)

"The provision of the Naturalization Act of June 29 1906, c. 3592, 84, 34 Stat., 596 [U. S. Comp. St. Supp. 1907, p. 421], requiring a petition for naturalization to be filed not less than two nor more than seven years after the declaration of intention is in the nature of a statute of limitation, and since it contains no language indicating a contrary intention must be so construed as not to cut off the privilege of aliens who had made declaration of intention prior to its enactment to become citizens, but in such cases to give them seven years thereafter within which to file their petition." (In re Wehrli [D. C., 1907], 157 Fed., 938; Eichhorst v. Lindsay [D. C., 1913~, 209 Fed., 708; U. S. v. Lengyel [D. C., 1915] , 220 Fed., 720; 5 U. S Compiled Statutes [1916], 5224.)

Rules governing the granting and issuing of passports to those who have declared their intention to become citizens of the United States:jgc:chanrobles.com.ph

"(1) The first section of the Act approved March 2, 1907, ’in reference to the expatriation of citizens and their protection abroad,’ provides ’That the Secretary of State shall be authorized, in his discretion, to issue passports to persons not citizens of the United States as follows: Where any person has made a declaration of intention to become such a citizen as provided by law and has resided in the United States for three years, a passport may be issued to him entitling him to the protection of this Government in any foreign country; Provided, That such passport shall not be valid for more than six months and shall not be renewed, and that such passport shall not entitle the holder to the protection of this Government in the country of which he was a citizen prior to making such declaration of intention.’

"(2) This section is not intended to confer upon persons who have only declared their intention to become citizens a general right to receive passports upon application. Such passports will be issued only when it is affirmatively shown to the Secretary of State that some special exigency requires the temporary absence of the applicant from the United States, and that without such absence the applicant would be subjected to special hardship or injury. Under this law passports cannot be issued to declarants who intend visiting their native lands.

"(3) Such passports will not be issued to those who have made the declaration of intention and who have failed, through their own neglect, to complete their intention and secure naturalization as citizens of the United States; nor to those who may make the declaration of intention in order to secure passports and leave the United States, nor shall more than one such passport be issued to any applicant.

"(4) It is therefore ordered that before a passport shall be issued to anyone who has made the declaration of intention to become a citizen of the United States the following facts shall be established to the satisfaction of the Secretary of State:jgc:chanrobles.com.ph

"(f) That the applicant has not applied for or obtained a passport from any other Government since he declared his intention to become a citizen of the United States.

(Sgd.) ’W. J. BRYAN.

"DEPARTMENT OF STATE,

"Washington, June 1, 1915.

"In the case of George Adam v. The United States, No. 4, before the claims commission under the treaty of Washington of May 8, 1871, it appeared that the claimant, who was born in London in 1827, emigrated to the United States in 1850, that he had since continuously resided in the latter country, and that in 1859, he declared his intention to become a citizen of the United States. The United States demurred to the memorial on the ground, among others, that the claimant was not a British subject within the true meaning of the treaty; that the declaration of intention was, ’of itself,’ ’a complete renunciation of all claims upon the intervention or protection of the sovereign’ whose allegiance he had announced his intention to abjure; that this declaration by the laws of many, if not all of the United States gave him, of itself, many of the rights of a citizen; that it certainly put him, so long as he remained in the United States, under the protection of that Government for international purposes; that in the case of Koszta it was asserted by the United States as a sufficient ground for protection even while abroad; and that it subjected the claimant, by the laws and usages of the United States, to conscription and enrollment for military service.

"Counsel for Great Britain replied that the claimant’s declaration of intention worked ’no change in his status under the law of nations;’ that the intention so declared might be abandoned at pleasure; that while it ’might furnish to his sovereign a sufficient reason to decline interference in his behalf,’ it ’did not purport to bring him under any new obligation to the country which he then intended to adopt;’ that the British Government had not declined to protect him, but on the contrary presented his claim for indemnity; that the declaration gave him no right ’as a citizen of the United States;’ that the rights which might result under State laws did not affect his condition as an alien; that he could not so much as claim from the United States a passport for his protection abroad; that the case of Koszta was without precedent, and had been repudiated by the United States itself, so far as it had been appealed to as recognizing the right of persons by virtue of a declaration of intention to be considered as citizens of the United States; that the statute of the United States authorizing the conscription of such persons did not pretend to change their allegiance, and gave them no rights or privileges in consequences of the conscription."cralaw virtua1aw library

Similar facts and arguments were presented in other cases. The commissioners unanimously rendered the following opinion:jgc:chanrobles.com.ph

"‘The question is raised as to whether in consequence of the claimants having declared their intention to become citizens of the United States and to renounce their allegiance to Her Britannic Majesty they have ceased to be British subjects within the meaning of the treaty. We are of opinion that notwithstanding the claimants having expressed their intention, they still remain British subjects until, the necessary formalities having been completed, they acted upon the intention so expressed.’" (See Hale’s Report, 14 Am. and British Claims Commission, treaty of May 8, 1871; Moore, International Arbitrations, Vol. 3, pp. 2552-2553.)

By the Act of Congress approved March 2, 1907, the right of expatriation is expressly declared, and all claims that naturalized American citizens, with their descendants, continue to be subjects of foreign states, are "finally disavowed;" and the Secretary of State is authorized, in his discretion, to issue passports to certain persons "not citizens of the United States," including under certain conditions "any person who has made a declaration of intention to become such citizens." But the express disavowal of claims that naturalized citizens continue to be subjects of foreign states after their naturalization, considered together with the omission of any such disavowal as to persons who have merely declared their intention to become such citizens; and the restrictions and limitations placed upon the rights and privileges of such persons, especially the prohibition upon the issuance to them of passports to visit their native lands, quite clearly disclose the recognition on the part of Congress of the settled doctrine of International Law that an alien does not cease to be an alien and a subject of a foreign state, by the mere declaration of his intention to become a citizen of the United States. The right of expatriation is declared in the Act in the following language:jgc:chanrobles.com.ph

"Whereas the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of the life, liberty, and the pursuit of happiness; and whereas in the recognition of this principle this Government has freely received emigrants from all nations and invested them with the rights of citizenship; and whereas it is claimed that such American citizens, with their descendants, are subjects of foreign states, owing allegiance to the governments thereof; and whereas it is necessary to the maintenance of public peace that this claim of foreign allegiance should be promptly and finally disavowed: Therefore any declaration, instruction, opinion, order, or decision of any officer of the United States which denies, restricts, impairs, or questions the right of expatriation, is declared inconsistent with the fundamental principles of the Republic." (United States Compiled Statutes, 1916, vol. 4, pp. 3952-3955.)

(2) The procedure marked out in section 69 of the Administrative Code of 1917, for the exercise by the Governor-General of the power to deport, has been followed in every particular in the instant case.

As we understand it, there is no divergence of opinion among the members of the court as to this proposition Certainly we have heard none. Extended discussion is therefore unnecessary.

A cursory examination of the record, or of the admitted facts set out in the statement of the case at the beginning of this opinion, will remove all doubt in this regard.

(3) The Governor-General of the Philippine Islands has power to deport aliens, as an act of state, upon prior investigation conducted in the manner and form prescribed in section 69 of the Administrative Code.

Resting our conclusion in this regard upon the provisions of section 69 of the Administrative Code of 1917, read in the light of the rulings of the Supreme Court of the United States in the case of Tiaco v. Forbes (228 U. S., 551), it is not necessary, at this time, to determine whether, under the various organic acts of the Philippine Government, the power to deport aliens, as an act of state, is vested in the Governor-General "by virtue of his office alone," subject merely to regulation by the Philippine Legislature; or whether his authority in the premises is derived wholly from the Philippine Legislature by virtue of a grant of power, express or implied, in section 69 of the Administrative Code of 1917; because deportations of aliens by the Governor-General, as an act of state, upon prior investigation conducted in the manner and form prescribed in section 69 of the Administrative Code may properly be regarded as made "under the combined powers" of the Governor-General and the Philippine Legislature; authority for such deportations having been conferred upon the Governor-General, so far as that may be necessary, by the provisions of that section, as we believe and shall endeavor to show hereafter.

We may, therefore, dispose of most of the contentions of counsel for petitioner as to the lack of power of the Governor-General in the premises, in the very language of the Supreme Court of the United States in the case of Tiaco v. Forbes (228, U. S. 549):jgc:chanrobles.com.ph

"The deportation is to be considered as having been ordered by the Governor-General in pursuance of a statute of the Philippine Legislature directing it, under their combined powers, and it is unnecessary to consider whether he had authority by virtue of his office alone, as declared by the statute, or whether, if he had not, he had immunity from suit for such an official act done in good faith. The former matter now is regulated by a later statute providing for a hearing, etc. (No. 2113. February 1, 1912.) On the question thus narrowed the preliminaries are plain. It is admitted that sovereign states have inherent power to deport aliens, and seemingly that Congress is not deprived of this power by the Constitution of the United States. (Fong Yue Ting v. United States, 149 U. S., 698, 707 728; Wong Wing v. United States, 185 U. S., 296, 302, Turner v. Williams, 194 U. S., 279, 289, 290.) Furthermore, the very ground to the power in the necessities of public welfare shows that it may have to be exercised in a summary way through executive officers. (Fong Yue Ting v. United States, .supra; United States v. Ju Toy 198 U. S., 253, 263; Moyer v. Peabody, 212 U. S., 78, 84, 85.) So that the question is narrowed further to the inquiry whether the Philippine Government can not do what unquestionably Congress might.

"As Congress is not prevented by the Constitution, the Philippine Government can not be prevented by the Philippine Bill of Rights alone. (Act of July 1, 1902, c. 1369, sec. 5; 32 Stat., 691, 692.) Deporting the plaintiffs was not depriving them of liberty without due process of law, unless on other grounds the local government was acting beyond its powers. But the local government has all civil and judicial power necessary to govern the Islands. (Act of March 2, 1901, c. 803; 31 Stat., 895, 910; Act of July 1, 1902, c. 1369, sec. 1; 32 Stat., 691.) The forms are difrent, but as in Hawaii the proximate source of private rights is local, whether they spring by inheritance from Spain or are created by the Philippine Legislature. (See Kawananakos v. Polyblank, 205 U. S., 349, 354; Perez v. Fernandez, 202 U. S., 80, 91, 92.) It would be strange if a Government so remote should be held bound to wait for the action of Congress in a matter that might touch its life unless dealt with at once and on the spot. On the contrary, we are of opinion that it had the power as an incident of the self-determination, however, limited, given to it by the United States.

"By section 86 of the Act of July 1, 1902, all laws passed by the Philippine Government are to be reported to Congress, which reserves power to annul them. It is worthy of mention that the law under consideration was reported to Congress and has not been annulled. The extension of the Chinese exclusion and immigration laws to the Philippine Islands has no bearing on the matter. The right to remain, for instance, under the Act of April 29, 1902, c. 611, section 4; 32 Stat., 176, does not prevail over a removal as an act of state."cralaw virtua1aw library

The argument for plaintiff in error in the Tiaco v. Forbes case in the Supreme Court of the United States has been renewed on this occasion, and we here insert an extract, or summary of the contentions of counsel for the plaintiff in error in the former case, as found in the report of that case (228 U. S., 551), because the disposition of these contentions in the above-cited opinion of the Supreme Court of the United States relieves us of the burden of extended discussion of many, if not most, of the contentions of counsel for the petitioner in this case.

Counsel for the plaintiff in error in the former case contended fruitlessly that:jgc:chanrobles.com.ph

"The Government of the Philippine Islands has no power to deport aliens.

"The authorities cited on the existence of an inherent power to deport foreigners sustain the proposition only as to sovereign states in which that power is inherent as an essential element of sovereignty. That power does exist inherently in sovereign states.

"The Philippine Government, however, is not a sovereign community, at least in an international sense, but a mere dependency of the United States, limited to the exercise of such powers only as those with which it is vested by its organic act.

"Since the source of all power in the government of the Philippine Islands is the Congress of the United States, it must follow that if it has the power to expel aliens it must have been granted that power by Congress, either directly or by necessary implication.

"While Congress may assign to Federal officers, either in the United States or the Philippine Islands, the power to execute the provisions of such acts as Congress may pass regulating the exclusion or expulsion of foreigners from territory subject to the dominion of the United States, it is at least extremely doubtful whether it could delegate to the Philippine Government its sovereign power to exclude aliens. (Stoutenburgh v. Hennick, 129 U. S., 141.) In any event this power could only be exercised subject to the limitation of ’the due-process clause of the Federal Constitution and the Philippine Bill of Rights.

"Congress has not delegated to the Philippine Government the power to exclude or expel foreigners.

"The power was not delegated by the President’s instructions to the Commission of April 7, 1900; the Executive Order of June 21, 1901; the Spooner Amendment; or the Organic Act of July 1, 1902. (See 26 Ops. Atty. Gen., [Dec. 10, 1906], pp. 91, 96; Ops. Atty. Gen., pp. 534, 541.)

"Congress had already acted.

"Aside from the absence of authority to be found in the Organic Act of the Philippines conferring the right, Congress, both prior to and after the passage of the Organic Act, had legislated for the Philippines regarding the regulation of the admission and exclusion of foreigners. (See Act of April 29, 1902, making all the Chinese exclusion laws in force in the United States applicable to the Philippines; also section 33 of the Immigration Act of March 3, 1903; section 33 of the present Immigration Act in force; section 6 of the Act of February 6, 1905.)

"The regulation of the admission or exclusion of all aliens into or from the Philippine Islands was a subject never entrusted to the Government or its officers (except to the extent of enforcing the immigration and exclusion laws of the United States applicable to the Philippines). (In re Allen, 2 Phil. Rep., 630.)

"The regulation of the conditions under which foreigners may enter into and reside in the territory of the United States is incidental to the general and exclusive power vested in Congress to regulate commerce with foreign nations.

"The Governor-General has no such power.

"There being no power in the Philippine Legislature to legislate regarding the exclusion of foreigners from the Philippines in the first instance, their action could not constitute a ratification of what was done by the Governor-General.

"The deportation of the plaintiffs in error was without due process of law.

"The subject of the exclusion or expulsion of foreigners from any portion of the vast domains of the United States is one over which Congress has complete control.

"Congress would not concede to a dependent community powers inherent in the United States as a sovereign member of the family of nations, and powers which the various States of the Union have essayed in vain to exercise.

"The plaintiffs in error were entitled to maintain their residence in the Philippines under the Chinese Exclusion Laws and for these and other reasons their deportation was illegal and without due process of law."cralaw virtua1aw library

It is urged, however, that since the date of the decision of the Supreme Court of the United States in the Tiaco v. Forbes case (May 5, 1913) congressional legislation has deprived the Governor-General and the Philippine Legislature of authority to deport aliens except as therein provided, even when acting under their combined powers.

The Act of Congress approved August 29, 1916 (popularly known as the Jones Law); and the Act of Congress which became law over the veto of the President, February 5, 1917 (The Immigration Law), are relied upon in support of this contention.

(A) But the Jones Law (Act of August 29, 1916) as expressly appears from its preamble was enacted "to provide a more autonomous Government" for the Philippine Islands, and the reasons assigned in the former case for the recognition of the power to deport aliens in the government of the Philippine Islands "as an incident of the self-determination, however limited, given to it by the United States," apply with even greater force under that statute than under the earlier organic Act (Act of March 2, 1901 and Act of July 1, 1902.)

Furthermore, the Jones Law (section 6) expressly continued "in force and effect" all laws then "in force" in the Philippine Islands (except as altered, amended, or modified by its terms or by subsequent legislation), including section 83 of the Administrative Code of 1916 (which incorporated the provisions of Act No. 2113, and is identical with section 69 of the Administrative Code of 1917). Prior to the enactment of the Jones Law, this court, in an unanimous opinion in the Chan Yick Sam case, promulgated October 1, 1915 (31 Phil. Rep., 560), had expressly construed the language used in Act No. 2113 and held that under its provisions the Governor-General was authorized to institute and maintain deportation proceedings in the manner and form prescribed therein. It will be seen, therefore, that far from depriving the Governor-General and the Philippine Legislature of authority to deport aliens, the Jones Law expressly ratified and continued in force the statutory grant by the Philippine Legislature of authority to the Governor-General to deport aliens "upon investigation" conducted in the manner and form prescribed in these statutes.

Some question is now raised as to the correctness of the construction placed upon the provisions of the Philippine statute (Act No. 2113) in the Chan Yick Sam case (supra) and it is urged that, correctly construed, the language of this statute was not intended to confer authority, and should be held to furnish merely the procedure by which the action of the Governor-General must be regulated in the deportation of aliens.

We do not agree with these contentions, as will appear at greater length hereafter. But even if it were true that the court erred in its interpretation of the language of the statute in the Chan Yick Sam case (supra), we think that under well-settled rules of statutory construction, this statute, when incorporated into and "continued in force" as a part of the Administrative Code, after it had been construed by this court; and when ratified and again "continued in force" by the enactment by Congress of the Jones Law; must be held to have been thus "continued in force" by Congress and the Philippine Legislature with the meaning and effect placed upon it in the Chan Yick Sam decision (supra); that is to say, as a grant of regulated power to deport aliens after investigation conducted in the manner and form prescribed in the statute.

When the provisions of Act No. 2113 were enacted and "continued in force" by the enactment of the Administrative Code, and again "continued in force" by the enactment of the Jones Law the construction theretofore placed upon it by this court became an integral part of these statutes "having the force and effect of a legislative command."cralaw virtua1aw library

Supported by numerous citations of authority the doctrine is set forth as follows by Sutherland in his work on Statutory Construction (vol. II, 2d. ed., sections 403 and 404):jgc:chanrobles.com.ph

"403. In the interpretation of reenacted statutes the court will follow the construction which they received when previously in force. The legislature will be presumed to know the effect which such statutes originally had, and by reenactment to intend that they should again have the same effect. The same rule applies to the readoption of a constitutional provision. It is not necessary that a statute should be reenacted in identical words in order that the rule may apply. It is sufficient if it is reenacted in substantially the same words. The same principle applies when a statutory provision is taken from a constitutional provision which has been construed. The rule has been held to apply to the reenactment of a statute which has received a practical construction on the part of those who are called upon to execute it. The Supreme Court of Nebraska says: ’Where the legislature in framing an act resorts to language similar in its import to the language of other acts which have received a practical construction by the executive departments and by the legislature itself, it is fair to presume that the language was used in the later act with a view to the construction so given the earlier.’ . . .

"404. When a statute is adopted from another state or county and such statute has previously been construed by the courts of such state or county, the statute is deemed, as a general rule, to have been adopted with the construction so given to it. The same rule applies to the adoption of a constitutional provision from another state. So when congress adopts a state statute for the District of Columbia. Where the foreign statute is mainly adopted, though not entirely and unchanged, the prior decisions of the foreign court are held to be entitled to great weight. Congress extended certain laws of Arkansas over the Indian Territory, and it was held that the construction previously placed upon them by the supreme court of Arkansas should be followed. . . . It is held that the general rule should not be departed from except for the strongest reasons."cralaw virtua1aw library

(B) The contention that Congress, by the enactment of the Immigration Act of 1917, and the extension of its provisions to the Philippine Islands, "occupied the field," and thereby deprived the Government of the Philippine Islands of power to deport aliens, except as provided in the Act itself, would seem to be substantially identical with the contention, adversely disposed of by the Supreme Court of the United States in the Tiaco v. Forbes case to the effect that "the subject of the exclusion or expulsion of foreigners from any portion of the vast domains of the United States is one over which Congress has complete control" and that "Congress, both prior to and after the passage of the Organic Act, had legislated for the Philippines regarding the regulation of the admission and exclusion of foreigners" by making the Chinese exclusion laws applicable to the Philippine Islands and by the enactment of the Immigration Acts of March 3, 1903, and of February 6, 1905.

In an attempt to distinguish the effect of the extention of the Immigration Act of 1917 to the Philippine Islands, from that given by the Supreme Court of the United States to the like extension of the Chinese exclusion laws and the Immigration Acts in force when the Tiaco v. Forbes decision was rendered, it is contended that the express provisions in the Immigration Act of 1917 for the regulation of the residence and the deportation of immigrants, under the terms of section 19 of the Act, is an implied negation of authority to the Government of the Philippine Islands to deport aliens for any other reason whatever. But it will be remembered that the Chinese exclusion laws, in force when the Tiaco v. Forbes decision was rendered, also contained provisions for the regulation of the residence and the deportation of Chinese persons, and a like contention as to the rights of the plaintiff in error in that case, who was a Chinese person, to be exempt from deportation as an act of state, for any reason not specified in the Chinese exclusion laws and the Immigration Acts of 1903 and 1905, was fruitlessly urged upon the Supreme Court of the United States.

As will be seen, in the citation from the opinion in the Tiaco v. Forbes case (supra) the Supreme Court of the United States dealt with these contentions very summarily merely observing that "The extension of the Chinese exclusion and immigration laws to the Philippine Islands has no bearing on the matter. The right to remain, for instance, under the Act of April 29, 1902 (c. 641, par. 4, 32 Stat., 176), does not prevail over a removal as an act of state." We think that a like disposition should be made of the contentions of counsel based on the provisions of the Immigration Act of 1917.

It is to be observed, furthermore, that the Immigration Act of 1917 expressly provides:jgc:chanrobles.com.ph

"That this Act shall be enforced in the Philippine Islands by the officers of the general government thereof, unless and until it is superseded by an act passed by the Philippine Legislature and approved by the President of the United States to regulate immigration in the Philippine Islands as authorized in the Act entitled ’An Act to declare the purpose of the people of the United States as to the future political status of the people of the Philippine Islands, and to provide a more autonomous government for those islands’ approved August twenty-ninth, nineteen hundred and sixteen."cralaw virtua1aw library

This Act became law on February 5, 1917.

The provisions of the Act approved August 29, 1916, (the Jones Law) referred to therein, is as follows:jgc:chanrobles.com.ph

"That while this Act provides that the Philippine Government shall have the authority to enact a tariff law the trade relations between the islands and the United States shall continue to be governed exclusively by laws of the Congress of the United States: Provided, That tariff acts or acts amendatory to the tariff of the Philippine Islands shall not become law until they shall receive the approval of the President of the United States, nor shall any act of the Philippine Legislature affecting immigration or the currency or coinage laws of the Philippines become a law until it has been approved by the President of the United States: Provided further, That the President shall approve or disapprove any act mentioned in the foregoing proviso within six months from and after its enactment and submission for his approval, and if not disapproved within such time it shall become a law the same as if it had been specifically approved." (Sec. 10, Emphasis ours.)

Prior to the enactment of the Immigration Act, the Philippine Legislature had provided in the Administrative Code of 1916, as follows:jgc:chanrobles.com.ph

"A subject of a foreign power residing in the Philippine Islands shall not be deported, expelled or excluded from said Islands or repatriated to his own country by the Governor-General except upon prior investigation, conducted by said Executive or his authorized agent, of the ground upon which such action is contemplated. In such case the person concerned shall be informed of the charge or charges against him and he shall be allowed not less than three days for the preparation of his defense. He shall also have the right to be heard by himself or counsel, to produce witnesses in his own behalf, and to cross-examine the opposing witnesses." (Sec. 83.)

This provision of the Code of 1916 was repealed and reenacted in identical terms, as section 69 of the Administrative Code of 1917, by the Philippine Legislature on March 10, 1917, that is to say, subsequent to the date when the Immigration Act became law over the veto of the President.

The Administrative Code of 1917 was approved by the President on October 1, 1917.

As we have just said, we are of opinion that the extension of the Immigration Act of 1917 to the Philippine Islands has no bearing on the question of the power of the Philippine Government to deport or expel aliens from these islands for other reasons than those mentioned in that Act; and that the right of the petitioner to remain under that Act "cannot prevail over his removal as an act of state" of the Philippine Government. But, assuming for the sake of argument, that we are in error in this regard, and that the provisions of section 83 of the Code of 1916 were abrogated or repealed, in whole or in part by the extention of the Immigration Act of 1917 to the Philippine Islands, we are satisfied that the Immigration Act itself must be held to have been superseded (under authority of the above cited provisions of the Act itself) to precisely the like extent, by the reenactment of the provisions of the former code, in identical terms, as section 69 of the Administrative Code of 1917, with the approval of the President of the United States. If it be true that the provisions of section 83 of the Administrative Code of 1916 were "affected" by the enactment of the Act of Congress, it must also be true that the provisions of the Act of Congress were "affected" to a like extent by the enactment of section 69 of the Administrative Code of 1917 with the approval of the President of the United States. It follows that the authority which was conferred by the Legislature upon the Governor-General under the terms of section 83 of the Administrative Code 1916 was in like manner conferred upon him under the terms of section 69 of the Administrative Code of 1917, unaffected by the provisions of the Immigration Act from and after the day upon which that code received the approval of the President.

The specious suggestion that section 69 of the Administrative Code of 1917 was intended to furnish, or that it should be held to furnish merely a set of regulations for the enforcement of the Immigration Act of that year (Act of Congress of February 5, 1917) is manifestly at variance with the legislative history of this statute, which is a reenactment in identical terms of section 83 of the Administrative Code of 1916, the latter statute incorporating and continuing in force, with some slight amendments, the provisions of Act No. 2113 approved February 1, 1912.

The last contention made as to the lack of power in the Governor-General which need be noticed may be stated as follows:chanrob1es virtual 1aw library

Conceding that at the time when the Tiaco v. Forbes decision was rendered by the Supreme Court of the United States, the Philippine Government had power to deport aliens as an act of state; and conceding that neither the Jones Law (Act of August 29, 1916), nor the Immigration Act of 1917, have had the effect of depriving the Philippine Government of that power, so that it continues in existence to this day; nevertheless, this case is to be distinguished from the Tiaco v. Forbes case, in that the Act of the Philippine Legislature (No. 1986) enacted April 19, 1910, approving, ratifying and affirming the action of the Governor-General in the former case, was equivalent to an express authorization of the former deportation by the legislature whereas, as it is claimed, there is no act of the Philippine Legislature authorizing the Governor-General to order the deportation in the instant case. It is urged that neither section 69 of the Administrative Code of 1917, nor section 83 of the Administrative Code of 1916, nor Act No. 2113 of the Philippine Legislature conferred or purported to confer any such authority upon the Governor-General of the Philippine Islands.

It will readily be seen that this contention calls upon us for a construction of the meaning and effect of our local statutes, unaffected by any question as to the relation of these statutes to congressional legislation or the provisions of the Constitution of the United States.

We are of opinion that by the enactment of the series of statutes just cited, the Philippine Legislature conferred upon the Governor-General authority to deport subjects of foreign powers, as an act of state, "upon prior investigation," conducted in the manner indicated in section 69 of the Administrative Code of 1917.

As we have already indicated, this court was called upon, in the case of Chan Yick Sam v. Prosecuting Attorney of Manila, decided October 1, 1915 (31 Phil. Rep., 560), to consider the meaning and effect of the provisions of Act No. 2113, enacted February 1, 1912, and it was there held that this Act furnished full and lawful authority to the Governor-General to proceed to deport a foreigner.

The syllabus of that decision, prepared by the writer of the opinion, is as follows:jgc:chanrobles.com.ph

"Held: Under the facts stated in the opinion, that the prosecuting attorney of the city of Manila, in compliance with an order of the Governor-General, has, in accordance with Act No. 2113, the authority to examine witnesses concerning certain charges against aliens who are suspected of inciting the perpetration of certain acts against the safety, welfare, and peace of the Chinese community in the city of Manila and of being persons subject to deportation. (Forbes v. Chuoco Tiaco and Crossfield, 16 Phil. Rep., 534; 228 U. S., 549.)"

In that case, which arose after the Tiaco v. Forbes case had been decided by the Supreme Court of the United States, this court sustained a ruling of the Court of First Instance of Manila denying a writ of prohibition against the maintenance of deportation proceedings instituted under and by authority of Act No. 2113, and held that the act conferred the necessary authority upon the Governor-General and his authorized agents to institute and maintain such deportation proceedings.

It should be a sufficient answer to the contentions of counsel as to the absence of legislative authority to deport the petitioner, to refer to our ruling in the case just cited; but Act No. 2113 having been superseded and incorporated in slightly amended form in the Administrative Codes, and the argument in favor of the grant of power having been strongly reenforced thereby, it may not be amiss to reconsider the whole question as raised in the instant case. To this end it will be well to review the whole course of local legislation on this subject considered in relation to the decisions of the courts with reference thereto.

Act No. 1986 of the Philippine Legislature, enacted April 19, 1910, is as follows:jgc:chanrobles.com.ph

"AN ACT CONFIRMING THE ACTION OF THE GOVERNOR-GENERAL IN DEPORTING FROM THE PHILIPPINE ISLANDS, BY REQUEST OF THE IMPERIAL CHINESE CONSUL-GENERAL, ON AUGUST NINETEENTH, NINETEEN HUNDRED AND NINE, CERTAIN PERSONS OF CHINESE NATIONALITY.

"Whereas the Governor-General has recently, at the request of the representative of the Chinese Government, and in the exercise of authority vested in him by law, authorized the deportation from the Philippine Islands of twelve alien Chinese, subjects of the Emperor of China, after careful investigation, and upon being convinced, by the result of said investigation, that the presence of the said individuals in the Philippine Islands might result in serious harm to the Chinese colony and constitute a serious danger to the public tranquility and welfare; and

"Whereas, the Governor-General has sent a message to the Legislature, setting forth the facts in regard to the matter, therefore,

"By authority of the United States, be it enacted by the Philippine Legislature, that:jgc:chanrobles.com.ph

"SECTION 1. The action of the Governor-General in deporting from the Philippine Islands, at the request of the Imperial Chinese Consul-General, on or about the nineteenth day of August, nineteen hundred and nine, the twelve persons of the Chinese race and subjects of the Emperor of China, is hereby approved, ratified, confirmed, and in all respects declared legal, and not subject to question or review.

"SEC. 2. The public good requiring the speedy enactment of this bill, the same shall take effect on its pasage, in accordance with section one of Act Numbered Nineteen hundred and forty-five of the Philippine Legislature, entitled ’An Act providing the time at which all Acts of the Philippine Legislature shall take effect.’"

This statute was enacted a few weeks after civil actions for damages had been instituted by some of the Chinese deportees against the Governor-General and the police officers who executed his deportation order. Its evident purpose was to cure any defect which might be found to exist in the authority of the Governor-General in the premises; and although it expressly recited in its preamble that he had ordered the deportation "in the exercise of authority vested in him by law," it is very clear that it was felt that the contentions of his counsel as to the legality of the deportation order would be strengthened by an express ratification of the order, which, as was later declared by the Supreme Court of the United States, had the effect of an express grant of power by the Legislature.

From the message of the Governor-General and the published reports of the legislative and judicial proceedings incident to the deportation of Chuoco Tiaco, it appears that sharp differences of opinion arose at that time as to the power of the Philippine Government to deport aliens; that grave doubts existed in the minds of many of the members of the legislature as to whether the Governor-General could exercise the power by virtue of his office alone, without legislative sanction or authority; and that conflicting views were entertained by some of the members of the legislative bodies and the then Chief Executive as to whether the Legislature had authority to limit, restrict, or regulate the exercise of this power.

Two years later, evidently as the outcome of the discussion of the Chuoco Tiaco deportation proceedings, the general subject of deportation and repatriation of foreigners was dealt with by the Philippine Legislature in Act No 2113, enacted February 1, 1912, which is as follows:jgc:chanrobles.com.ph

"AN ACT REGULATING THE AUTHORITY OF THE GOVERNOR-GENERAL OF THE PHILIPPINE ISLANDS TO DEPORT, EXCLUDE, EXPEL, OR REPATRIATE FOREIGNERS.

"Whereas it has been decided that the Governor-General of the Philippine Islands has authority to deport, expel, exclude, or repatriate foreigners, by due process of law;

"Whereas there is no law at present in the Philippine Islands which determines or defines such process of law;

"Whereas it is necessary and advisable for the individual security of all residents of these Islands clearly to fix said process of Law: Now, therefore,

"By authority of the United States, be it enacted by the Philippine Legislature, that:jgc:chanrobles.com.ph

"SECTION 1. Hereafter the Governor-General of the Philippine Islands may not deport, expel, exclude, or repatriate from said Islands any foreigners residing therein without prior investigation made by said Executive or his authorized agents, in which the person or persons whose deportation, expulsion, exclusion, or repatriation is contemplated, and their counsel and witnesses shall be given a hearing. Such persons shall be informed of any charges which there may be against them, and shall be granted a period of time not less than three days to prepare their defense and shall be given an opportunity to cross-examine the witnesses for the prosecution: Provided, That this Act shall not be construed as authorizing the extrañamiento, destierro, deportation, or any other form of expulsion from the Islands of Filipinos.

"SEC. 2. All Acts and legal provisions legally incompatible herewith are hereby repealed.

"SEC. 3. The public good requiring the speedy enactment of this bill, the same shall take effect on its passage in accordance with section one of Act Numbered Nineteen hundred and forty-five of the Philippine Legislature."cralaw virtua1aw library

A year later the Supreme Court of the United States in the Tiaco v. Forbes case, decided May 5, 1913, set all doubts at rest as to the power of the Philippine Government to deport aliens as an act of state; and, reserving opinion as to whether the Governor-General could exercise the power "by virtue of his office alone," made it clear that the Philippine Legislature and the Governor-General, acting "under their combined powers," had authority to deport aliens as an act of state; and that "the very ground of the power in the necessities of public welfare shows that it may have to be exercised in a summary way through executive officers."cralaw virtua1aw library

Less than six months after the promulgation of the decision in the Tiaco v. Forbes case, this court, citing and relying upon that decision, held in the Chan Yick Sam case (31 Phil. Rep., 560), that the Governor-General had authority under the above cited Act No. 2113, to institute and maintain deportation proceedings against a foreigner in accord with its provisions.

On February 24, 1916, the Philippine Legislature enacted the Administrative Code of that year, and on March 10, 1917, it enacted the Administrative Code now in force, substantially incorporating therein the provisions of the former code, with such amendments and additions as were deemed necessary and expedient, as the result of the enactment of the Jones Law (Act of August 29, 1916), providing for a more autonomous government for the Philippine Islands. Section 83 of the Code of 1916, and 69 of the Code of 1917 are identical, and incorporate into those codes the provisions of Act No. 2113, with the omission of the title and preamble and some slight changes in the body of the Act.

Section 69 of the Code of 1917 is a subdivision of article II, chapter IV, title II, which treats of "Particular powers and duties of the Governor-General," itself a subdivision of Book I which treats of the "Organization, powers, and general administration of the Philippine Government."cralaw virtua1aw library

This section is as follows:jgc:chanrobles.com.ph

"Deportation of subject of foreign power. — A subject of a foreign power residing in the Philippine Islands shall not be deported, expelled, or excluded from said Islands or repatriated to his own country by the Governor-General except upon prior investigation, conducted by said Executive or his authorized agent, of the ground upon which such action is contemplated. In such case the person concerned shall be informed of the charge or charges against him and he shall be allowed not less than three days for the preparation of his defense. He shall also have the right to be heard by himself or counsel, to produce witnesses in his own behalf, and to cross-examine the opposing witnesses."cralaw virtua1aw library

Section 3 of the Code of 1917 provides as follows

"Relation of Administrative Code to prior laws. — Such provisions of this Code as incorporate prior laws shall be deemed to be made in continuation thereof and to be in the nature of amendments thereto, without prejudice to any right already accrued."cralaw virtua1aw library

We think that the authority of the Governor-General to deport, expel, exclude or repatriate subjects of foreign powers residing in the Philippine Islands, as an act of state, upon prior investigation, is clearly derivable from the express terms of this statute, having in mind its context and relative position in the Code; its antecedents; the whole course of local legislation with relation to the matter of deportation of aliens; and the acquiescence of the legislator in the construction placed upon Act No. 2113 by this court in the Chan Yick Sam case (supra) and in the assumption by the Chief Executive of authority thereunder, of both of which he had notice when again and yet again he incorporated the provisions of Act No. 2113-in the Administrative Codes.

It is urged that, read by itself, section 69 of the Code of 1917, like its predecessors, Act No. 2113 and section 83 of the Code of 1916, which it continues in force with some amendments, is a purely adjective or procedural statute; that it contains no express grant of authority; and that it purports merely to regulate the exercise by the Governor-General of authority to deport, as an act of state.

We are of opinion, however, that while it is doubtless true that the second paragraph of this section relates wholly to procedure, the first paragraph not merely regulates and controls the power of the Governor-General, but, certainly by plain implication, and as we think in express terms, confers authority in deportation proceedings, when they are had upon prior investigation, and conducted in the manner and form prescribed in this section.

The somewhat unusual phrasing of the language of Act No. 2113 quite clearly reflects the doubts and uncertainties then existing as to the source, the ultimate depositary, and even the existence of power. in the Philippine Government to deport aliens as an act of state. But it is not of vital importance whether the members of the Legislature were, or were not, correctly advised as to their power in the premises, or the source from which it is derived. The real question is whether legislative intent to concede the power to the Governor-General and to assert merely their own power to regulate its exercise, finds expression in the language of the statute. We entertain no doubt that if not, expressly, then by plain implication, the Governor-General was authorized under the terms of the first paragraph [section] of the statute to deport aliens, upon investigation conducted in the manner prescribed therein. That the legislator himself understood that this paragraph contained a grant of authority, express or implied, is quite clearly indicated by the proviso, which expressly declares that "this Act shall not be construed as authorizing" the deportation or expulsion from the Islands of Filipinos: evidently intended to foreclose the possibility that the word foreigners, used in a statute enacted in the English language under American sovereignty might be construed to include Filipinos.

It is true that this statute purported to be an act regulating the authority of the Governor-General to deport foreigners, and that the preamble sets forth that "it had been decided" that the Governor-General had authority to deport aliens by due process of law. But it will be seen that in exercising the right tacitly assumed by the legislator in the other paragraphs of the preamble, to "determine," "define," and "fix" such process of law, he clearly and explicity specified in the body of the act itself the instances in which he consented to the exercise of such authority as well as those in which he forbade its exercise.

The cautious phrasing of the paragraph of the preamble which declared that "it has been decided that the Governor-General has authority to deport foreigners by due process of law" discloses that the lawmakers desired to reserve their own views on that subject; and we think that a critical examination of the whole statute clearly discloses the intention of the lawmakers to assert the right to regulate so as to forbid arbitrary deportations and at the same time to concede the right to deport foreigners upon prior investigation, coupled, however, with an express declaration of the legislative will to prohibit the deportation of Filipinos on any pretext whatever.

That which is plainly implied in the language of a statute is as much a part of it as that which is expressed. (Sutherland on Statutory Construction, 2d. ed., p. 9236.)

If, however, the peculiar phrasing of Act No. 2113 with its preamble, left any real ground for uncertainty as to the intention of the legislator to concede a regulated power to deport aliens, no such doubt arises as to the legislative intent in the enactment of the provisions touching the deportation of aliens in the administrative codes.

Omitting the title and the preamble, the provisions of Act No. 2113, with some slight but significant amendments were included among the provisions of these carefully prepared administrative codes defining and delimiting the jurisdiction and distribution of powers of government, and they are to be found in the chapters of those codes which set forth "the particular powers and duties of the Governor-General

Prior to the enactment of these codes the Supreme Court of the United States had dealt with the subject in the Tiaco v. Forbes case, and this court had construed Act No. 2113 in the Chan Yick Sam case. These decisions and the lapse of time had clarified the atmosphere; and the Legislature when it again undertook to deal with the subject of deportation of foreigners, as an act of state, under the section title of "Deportation of subject of foreign power," instead of directing its prohibition against the Governor-General himself, as in the old statute wherein it provided that the ’Governor-General may not deport foreigners except, etc.", directed its prohibition against deportations of subjects of a foreign power by the Governor-General except upon prior investigation, etc. The modification in the language is slight but significant, because it suggests, first that the legislator felt and knew that he was dealing with an established practice, sanctioned by the courts; and, second, that in the code provisions the legislator was not merely regulating and controlling the practice, but consciously defining and delimiting the occasions upon which the power to deport might, and upon which it might not be exercised by the Governor-General with legislative authority.

The substitution of the words "subjects of a foreign power" in the code in place of the word "foreigner" in Act No. 2113, was intended, of course, to render unnecessary the proviso in the Act expressly denying a grant of authority to deport Filipinos, by the use of descriptive words in the grant of authority which could not be construed, under any possible circumstances or in any language, to include natives of the Islands.

Examined with relation to the context, and the express purpose and object of the codification of the laws defining and delimiting the powers of Government in the Philippine Islands, we are of opinion that the ordinary and usual interpretation which should be Placed upon the language of section 69 of the Administrative Code of 1917, and the application thereto of the ordinary rules of grammatical construction, must be held to sustain the contention of the Attorney-General that it was intended to confer and that it does in fact confer a regulated authority upon the Governor-General in the matter of deportation of aliens.

Finally, we think that the acquiescense of the legislator in the interpretation placed upon the statute by the courts, and in the assumption of authority thereunder by the Governor-General, operated in itself as a grant of such power. The Philippine Legislature had notice prior to the enactment of Act No. 1986 in the year 1910, that the Governor-General had asserted and exercised the power to deport aliens as an act of state. Both the Legislature, and the special board of experienced lawyers and judges who prepared the Administrative Codes of 1916 and 1917, must be presumed to have had notice that thereafter, the Governor-General again asserted the right to exercise that power under and by virtue of the authority contained in the provisions of Act No. 2113 approved February 1, 1912. The proceedings in one such case are set out at length in the reports of our decision in the case of Chan Yick Sam, promulgated October 1, 1915, and reported in the weekly Official Gazette 1 and in 31 Phil. Rep., 560. In that case, as we have seen, this court expressly recognized and unanimously sustained the authority of the Governor-General to maintain these proceedings under and by virtue of the statute (Act No. 2113). And yet, upon two separate occasions thereafter, the provisions of that statute were reenacted with some slight amendments which in no wise affected the expression of the legislative will touching the exercise of the power to deport aliens by the Chief Executive

We think that if there ever was any ground for doubt as to the legislative intent to concede authority to the Governor-General by the enactment of Act No. 2113, it was swept away by the reenactment of its provisions in the administrative codes under the circumstances just indicated; and that the Philippine Legislature must be held to have acquiesced in, and consented to the continuance of the practice long ere this. (Cf. Citations from Sutherland on Statutory Construction [supra].)

In the case of U. S. v. Midwest Oil Company (35 Sup. Ct. Rep., 309):jgc:chanrobles.com.ph

"The power of the President to make certain land reservations was questioned. It appeared that the President or the Executive Department of the Government claimed the authority to make such reservations without any statutory grant. It also appeared that Congress had notice of this claim of authority and did not repudiate it; the Supreme Court of the United States held that ’Its silence was acquiescence. Its acquiescence was equivalent to consent to continue the practice until the power was revoked by some subsequent action by Congress.’"

In our consideration of the case thus far, we have rested our conclusions strictly on the doctrine of the decision of the Supreme Court of the United States in the Tiaco v. Forbes case as we understand it, because in this case as in that case, we believe that the concession or grant of authority to the Governor-General by the Philippine Legislature validates the deportation of the petitioner, as an act done under their combined powers, whether or not power to deport aliens is vested in the Governor-General "by virtue of his office alone." It would seem that we might stop here, but in view of the marked divergence of opinion which has developed in the discussion of this case as to whether the language of the local statutes sustains a ruling that the Philippine Legislature has, in fact, conferred authority upon the Governor-General in the premises, it may be proper to indicate that we think that an examination of the history of the office of the Chief Executive in these Islands under American sovereignty will disclose that, until and unless he is deprived of such authority by some act of Congress or of the Philippine Legislature, the power of the Philippine Government to deport aliens as an act of state is vested in the Governor-General by virtue of his office subject only to the regulations prescribed in section 69 of the Administrative Code of 1917, or by future legislation on the subject.

We incline to the belief that authority to control, limit, restrict, and perhaps even to prohibit the exercise by the Governor-General of this power, by appropriate legislation, was conferred upon the Philippine Legislature, the elected representatives of the people of the Islands, under the terms of the Jones Law (Act of August 29, 1916), providing a more autonomous form of government for the people of the Philippine Islands. We think, furthermore, that the enactment of that statute furnishes a sufficient grant of authority to the Philippine Legislature to provide for the exercise of the power of the Philippine Government to deport aliens through such instrumentalities, and under such appropriate regulations, as it may deem proper to prescribe; and to ratify, confirm, or concede authority for the exercise of such power in the Chief Executive. Indeed, that body has heretofore exercise legislative power to confer jurisdiction upon the courts to order the deportation of aliens upon a second conviction of a violation of the Opium Law. We are disposed also to think that such power was vested in the Philippine Legislature prior to the enactment of the Jones Law. But we are well satisfied, also, that under American sovereignty, the essentially civil power to deport aliens as an act of state was originally vested in the first Civil Governor by virtue of the presidential orders hereinafter cited, affirmed and ratified by the Congress of the United States; and that it has continued in the office of the Chief Executive, the Governor-General, ever since, except in so far as his power has been restricted, limited or controlled by the various acts of the Philippine Legislature to which reference has already been made.

We find nothing in the history of the legislative relations of the Philippine Islands and the United States which would indicate that the power, which undoubtedly was vested in the first Civil Governor, has been withdrawn from any of his successors. Doubtless the power to legislate upon the subject was conferred upon the Philippine Legislature under the Jones Law; but there is nothing in that act to indicate the intention of Congress by its enactment and without further legislation, local or congressional, to abrogate the regulated system then in force for the exercise of the power to deport aliens as an act of state, and to deprive the Governor-General of the power vested in him prior to its enactment.

Our rulings on the other branch of the case necessitating the denial of the petitioner’s prayer for discharge under the writ, and our time being extremely limited, we may not pursue the inquiry further. We must therefore content ourselves with a reference to the President’s Instructions to the Commission of April 7, 1900; the Executive Order of the President of June 21, 1901; the Spooner Amendment of the Act of Congress of March 2, 1901; section 1 of the Act of Congress of July 1, 1902; the Act of Congress of August 29, 1916, and U. S. v. Bull, 15 Phil. Rep., 7.

The Spooner Amendment found in the Act of Congress of March 2, 1901, is as follows:jgc:chanrobles.com.ph

"All military, civil and judicial powers necessary to govern the Philippine Islands, acquired from Spain by the treaties concluded at Paris on the tenth day of December, eighteen hundred and ninety-eight, and at Washington on the seventh day of November, nineteen hundred, shall, until otherwise provided by Congress, be vested in such person or persons, and shall be exercised in such manner as the President of the United States shall direct, for the establishment of civil government and for maintaining and protecting the inhabitants of said Islands in the free enjoyment of their liberty, property, and religion." (31 Stat. at L., 910.)

The order of the President of June 21; 1901, appointing a Civil Governor is as follows:jgc:chanrobles.com.ph

"On and after the 4th day of July, 1901, until it shall be otherwise ordered, the President of the Philippine Commission will exercise the executive authority in all civil affairs in the government of the Philippine Islands heretofore exercised in such affairs by the Military Governor of the Philippines, and to that end the Hon. William H. Taft, President of said Commission, is hereby appointed Civil Governor of the Philippine Islands. Such executive authority will be exercised under, and in conformity to, the instructions to the Philippine Commissioners, dated April 7, 1901), and subject to the approval and control of the Secretary of War of the United States."cralaw virtua1aw library

Section 1 of the Act of Congress of July 1, 1902 (Philippine Bill) is, in part, as follows:jgc:chanrobles.com.ph

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the action of the President of the United States in creating the Philippine Commission and authorizing said Commission to exercise the powers of government to the extent and in the manner and form and subject to the regulation and control set forth in the instructions of the President to the Philippine Commission, dated April seventh, nineteen hundred, and in creating the offices of Civil Governor and Vice-Civil Governor of the Philippine Islands, and authorizing the said Civil Governor to exercise the powers of the Government to the extent and in the manner and form set forth in the executive order dated June twenty-first, nineteen hundred and one, . . . is hereby approved, ratified, and confirmed, and until otherwise provided by law the said Islands shall continue to be governed as thereby and herein provided, . . . ."cralaw virtua1aw library

Nevertheless, one objection to the theory that power to deport aliens is vested in the Governor-General by virtue of his office alone, under the terms of the above cited congressional legislation; and that the Chief Executive of the Philippine Islands may lawfully exercise that power, subject to regulation by Congress or the Philippine Legislature, until and unless he is deprived of authority by Act of Congress or the Philippine Legislature, deserves some attention. It has been suggested that the power to deport aliens as an act of state, which was undoubtedly included among the powers which the Military Governor was authorized to exercise after the occupation of the Islands by the armed forces of the United States, should not be held to have vested in the first Civil Governor and his successors in office by virtue of the executive orders of the President, the Spooner Amendment and the various acts of Congress organizing the Philippine Government, because it would be unreasonable to suppose that it was the intention of Congress to provide for the transfer of purely military powers to a civil executive; and because in no event would powers which had their origin wholly in military necessity survive the complete disappearance of the military situation creating the necessity. But these contentions are manifestly based on the erroneous premise that the power to deport aliens as an act of state which was exercised by the commander-in-chief of the military forces in occupied territory, was necessarily a purely military power similar in kind and origin to the power, for example, which he exercised to deport natives of the Islands or citizens of the United States.

We readily agree that it would be unreasonable to suppose that the power to deport any person whatever, whether a citizen of the United States or not, whose presence appeared to constitute an obstacle in the path of the military forces of the United States in the Philippines, was transmitted from the Military Governor to the Civil Governor and his successors in office through a period of nearly two decades of profound peace. But the power to deport aliens is not derived exclusively or necessarily from military necessity. Indeed, its exercise is in many, if not in most instances, a function of the civil and political department of the Government, properly vested in the civil authorities in time of war as in time of peace, unless taken over by the military commander by the assumption of civil as well as military powers in territory under his command. (Cf Moore’s International Law Digest, vol. IV, sec. 550 et seq.)

In the case of Fok Yo v. U. S. ([1902], 185 U. S., 296) the Supreme Court of the United States said:jgc:chanrobles.com.ph

"The doctrine is firmly established that the power to exclude or expel aliens is vested in the political department of the government, to be regulated by treaty or by Act of Congress and to be executed by the executive authority according to such regulations, . . . ."cralaw virtua1aw library

We are of opinion that in the Philippine Islands the doctrine which should be established is that the power to exclude or expel aliens is vested in the political department of the government, to be regulated by treaty, or Act of Congress of the United States, or by Act of the Philippine Legislature; and, under the laws as they now stand on the statute books, to be executed by the Governor-General, the supreme executive authority, according to such regulations.

Although somewhat out of its logical order, we think we should add here some comment on an objection to our rulings to which our attention was more especially directed, upon reading one of the dissenting opinions after the foregoing had been completed. It is urged that not only was Congress lacking in power, under the Constitution, to delegate undefined authority to deport aliens to the Philippine Government, but also that the Philippine Legislature was lacking in constitutional authority to delegate such undefined authority to the Chief Executive of the Philippine Islands.

These contentions would seem to be sufficiently disposed of by directing attention to the fact that the Supreme Court of the United States has held, in the case of Tiaco v. Forbes (supra), not only that Congress has the power so to do, but that it did in fact delegate full power to the Philippine Government to deport aliens as an act of state; and, further, that when the Governor-General does in fact deport an alien, by authority of an Act of the Philippine Legislature, the deportation may properly be treated as an act of state, done under "the combined powers" of the Philippine Legislature and the Governor-General.

It will be well, nevertheless, to examine this contention at greater length, on principle as well as on authority.

As is well said in a decision (Yick Wo v. Hopkins, 118 U. S., 356) cited in one of the dissenting opinions in this case, "It is, indeed, quite true, that there must always be lodged somewhere, and in some person or body, the authority of final decision."cralaw virtua1aw library

But despite this manifest truism, it is insistently contended that it is unconstitutional and contrary to the basic principles of American sovereignty in these Islands to lodge in the hands of the Governor-General power to deport aliens, unless the instances in which such power may be exercised are specifically designated and defined. It is said that it is a useless and vain formality to require that "the alien shall be heard before he is expelled, if the expulsion may take place regardless of what he may say," and that "the mere formality of a hearing is not in itself sufficient to constitute due process of law."cralaw virtua1aw library

As we understand these contentions, it is urged that even if it were admitted that Congress or the Philippine Legislature may lawfully delegate power to deport aliens to the Chief Executive in certain specified and enumerated instances, neither Congress nor the Philippine Legislature may lawfully delegate power, generally, in all the instances in which they themselves may exercise such power. But what are the instances in which such power may be delegated, and in what instances is it unconstitutional to delegate the power to deport? If power to deport may be delegated in some instances, where is the constitutional or legal prohibition upon the delegation of the power in all instances?

The truth is, of course, that the instances in which aliens may be deported as an act of state must be determined upon recognized principles of international law; and that the Legislature, when it conferred a regulated power on the Governor-General to deport aliens, upon prior investigation, in all instances in which the Government of the Philippines may deport aliens as an act of state, did not confer an arbitrary power to deport any alien upon "a mere whim" as is suggested, but only such aliens as may properly and lawfully be deported under recognized rules of international law.

While it is impossible to enumerate the cases wherein aliens may properly and lawfully be deported under recognized rules of international law, it is not impossible to lay down "a rule of law defining the standard of conduct for the violation of which the right of asylum which aliens enjoy under our laws is to be forfeited." Indeed few rules of law are more firmly established both in international law and in American municipal law than that every alien forfeits his right of asylum in the country in which he resides, in the absence of treaty provisions to the contrary, when his conduct or his mode of life renders his presence there inimical to the public interests. As was said by a standard authority on International Law "Some writers have essayed to enumerate the legitimate causes of expulsion. The effort is useless. The reasons may be summed up and condensed in a single word: The public interest of the State. Bluntschli wished to deny to states the right of expulsion but he was obliged to acknowledge that aliens might be expelled by a simple administrative measure." (Bonfils, Manual du Droit Int. Public, sec. 442; Moore’s International Law Digest, Vol. IV, p. 68.)

It will be seen then, that when the Congress of the United States and the Philippine Legislature conferred power on the Governor-General to deport aliens upon prior investigation, they did not confer arbitrary power to deport aliens at his mere whim; his authority being limited to cases wherein, after due investigation, the conduct or mode of life of the persons whose deportation is contemplated is found to be inimical to the public interests. It needs no argument nor citation of authorities to show that it was within the power of Congress and the Philippine Legislature to confer jurisdiction upon the Governor-General to adjudicate the facts upon which such deportations must be predicated; and to make his judgments in such cases as final and as conclusive as if like jurisdiction had been conferred upon the ordinary courts of law.

Let it be noted that we are not discussing, at this time, the political wisdom of conferring such powers on the Chief Executive. It is not within the province of the courts to pass upon the wisdom or unwisdom of legislative enactments. The question is not whether Congress and the Philippine Legislature should have delegated authority of this kind, but whether such authority could be delegated under the laws and the Constitution of the United States. No reason, other than those of mere political expediency, have been suggested for denying the power of the Legislature to confer such authority; and yet as was said by the Supreme Court of the United States in the Tiaco v. Forbes case (supra) "The very ground of the power in the necessities of the public welfare shows that it may have to be exercised in a summary way through executive officers."cralaw virtua1aw library

Moreover, we are dealing in the present case with a specific instance of the exercise of the power to deport, wherein the ground upon which the deportation is contemplated is that the petitioner is "an undesirable alien, whose continued presence in the Islands is a menace to the peace and safety of the community," as appears from the deportation order itself, and the charges upon which the investigation was held. If the petitioner is in fact what he has been adjudged to be after a fair and impartial hearing, no one can doubt, under present conditions, that this is a proper instance for the exercise by the Governor-General of the delegated authority to deport aliens as an act of state; and even if the grant of power should be held to be ineffective as an unrestricted and unlimited delegation of power to deport aliens, it must be held to be a sufficient delegation of a regulated power to deport aliens upon grounds such as those upon which the deportation of the petitioner are based.

In eloquent and impassioned periods counsel for the petitioner urge us to order his discharge from detention, and thus "conserve the sacred traditions of personal liberty maintained by the founders of the American Republic and their English ancestors;" and we are told that to sustain the regulated power of the Governor-General to deport aliens from the Philippine Islands as an act of state, is to challenge the principles and authority of Magna Charta, the Constitution of the United States, the Philippine Bill of Rights, and to set ourselves against all the historic precedents established by the Anglo-Saxon race through centuries of toil, and blood, and oppression.

But in answer to all this we need only say in addition to what has been said already:chanrob1es virtual 1aw library

1. That the Supreme Court of the United States was not deterred by such considerations from upholding the power of the Governor-General in the Tiaco v. Forbes case (supra) a few years ago, when it said that the summary deportation of the plaintiffs in that case did not deprive them of liberty "without due process of law;" and that "As Congress is not prevented (from deporting aliens) by the Constitution, the Philippine Government cannot be prevented by the Philippine Bill of Rights alone."cralaw virtua1aw library

2. That the founders of the American Republic, themselves, saw nothing in the Constitution to deter them from placing the Alien and Sedition Laws upon the statute books, when the need therefor arose a few years after that great instrument was adopted (1798). It will be remembered that it was the members of the Federalist party, many of whom had taken a leading part in the constitutional convention, who were responsible for the enactment of the statute which empowered the President to deport all aliens whom he should judge dangerous to the peace and safety of the community. And though, as a result of popular agitation, this statute was not reenacted after it had expired under its own terms, that fact furnishes no ground for argument either for or against its constitutionality The statute never was judicially tested. and we have no authoritative Judicial pronouncement as to its constitutionality.

3. That the great English judges do not find in Magna Charta nor elsewhere in the British Constitution anything which forbids the deportation of aliens by executive authority in the colonies of the Empire, even in the great self-governing colonies such as Canada. "Eminent English judges, sitting in the Judicial Committee of the Privy Council, have gone very far in supporting the exclusion or expulsion, by the executive authority of a colony of aliens having no absolute right to enter its territory or to remain therein." (In re Adam, 1 Moore, P. C., 460, quoted in Fong Yue Ting v. United States, 149 U. S., 698, 709.) "The Crown has power to exclude an alien and may delegate that power to Canada." (Atty. Gen. v. Cain, A, C., 542, reversing Re Gilhula, 10 Ont. L. Rep., 469.)

From what has been said it is clear that the prayer of the petitioner for discharge under the writ should be denied.

Let the appropriate order be entered, three days after the filing of this opinion, remanding the petitioner to the custody of the chief of police of the city of Manila, with the costs of the proceedings against the petitioner; and ten days thereafter let the record be filed with the archives of original proceedings in this court.

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

Separate Opinions

JOHNSON, J., dissenting:chanrob1es virtual 1aw library

This is an original petition filed in the Supreme Court for the writ of habeas corpus. The petitioner alleges that he is unlawfully restrained of his liberty by Anton Hohmann Acting Chief of Police of the city of Manila; that said unlawful restraint and detention is by virtue of an order issued by the Governor-General of the Philippine Islands, which is in the following words:jgc:chanrobles.com.ph

"To the Chief of Police, City of Manila, or to any Peace officer.

"GREETING: Whereas, after an investigation duly conducted in accordance with the provisions of section 69 of the Administrative Code (Act No. 2711), it appears that R. McCulloch Dick is a subject of a foreign power, residing in the Philippine Islands;

"Whereas it further appears that said R. McCulloch Dick is an undesirable alien, whose presence in the Philippine Islands is a menace to the peace and safety of the community;

"Now, therefore, by virtue of the powers in me vested, you are hereby authorized and ordered to deport said R. McCulloch Dick to the neighboring colony of Hongkong, and thereafter to exclude him from these Islands.

"In testimony whereof I have hereunto set my hand and caused the seal of the Government of the Philippine Islands to be affixed.

"Done at the city of Manila this 18th day of March, in the year of our Lord nineteen hundred and eighteen.

(Sgd.) "FRANCIS BURTON HARRISON,

" [SEAL. ] Governor-General."

that the Governor-General has no authority to issue said order of deportation; that said order is in violation of the Constitution, treaties, and laws of the United States, and of the Laws of Nations in force in the Philippine Islands; that he is not restrained of his liberty nor is he in custody of an officer under process issued by a court or magistrate or by a judgment or order of a court of record.

FACTS.

The facts antecedent to the issuance of said order of deportation, as they appear from the record — the petition, the return, the order to appear before the commissioner appointed to make the investigation, and the stenographic notes of the evidence which were taken during said examination, as certified to by the stenographer, all having been admitted as true and correct copies of the entire proceedings by all the parties — may be summarized as follows:chanrob1es virtual 1aw library

(a) That the petitioner, being the editor and proprietor of the Free Press, a periodical published weekly in the city of Manila, published the following statement, which appears in Vol. 12, No. 7, of the issue of February 16, 1918:jgc:chanrobles.com.ph

"KNOW HOW TO FORAGE.

"If the man of the Philippine National Guard can fight like they can steal, then the Kaiser and his legions had better beat it before the boys from the Philippines are sent over there. The details of the first case which appeared in the papers have slipped us now. It was not long thereafter, however, till there was recorded the Manila Hotel case, where the turkeys kept disappearing. When the watch was set during the night and the thief caught . . . National Guard. Then there was the case of a candidate for a commission as officer of the Guard. Took off his coat, he did, to be measured for the physical test. When he came to put it on again, lo! . . . his watch was gone. Again a guardsman. The latest testimonial to the guards’ ability to get away with things come from the Carnival. When the cakes mysteriously disappeared from the Tea Cup Inn on the last night of the big festival, it was to the tent of the sentries that the telltale tracks led, and there were found the crumbs of the midnight feast. Again the Guard. In one of Shakespeare’s plays there is mention of three soldier rogues in buckram. The guard is not in buckram, but apparently it has its rogues."cralaw virtua1aw library

(b) That on the 23d day of February, 1918, Col. D. P. Quinlan was appointed as the agent of the Governor-General for the purpose of investigating certain charges which had been preferred against the petitioner. Said appointment is as follows:jgc:chanrobles.com.ph

"FEBRUARY 23, 1918.

COLONEL D. P. QUINLAN,

"Philippine National Guard, Manila.

"SIR: Pursuant to the authority vested in me by section sixty-nine of Act No. 2711, known as the Administrative Code of 1917, you are hereby designated as the agent of the Governor-General for the purpose of investigating and reporting upon charges which have been preferred against R. McCulloch Dick, the editor and proprietor of the Philippines Free Press, a periodical published weekly in the city of Manila, in connection with the publication of certain articles in that paper which tend to obstruct the government of the Philippine Islands in policies inaugurated for the prosecution of the war between the United States and the German Empire, and other articles which have tended to create a feeling of unrest and uneasiness in the community. It is desired that you submit your report of this investigation to the Governor-General at the earliest possible date.

"Very respectfully,

(Sgd.) "FRANCIS BURTON HARRISON,

"Governor General."

(c) That in pursuance of and in compliance with said appointment the petitioner was notified, a hearing was had at the beginning of which Colonel Quinlan notified the petitioner of the charges against him (see record), witnesses were examined, and report made by said agent and the order of deportation above noted was issued, and the petitioner was subsequently taken into custody for the purpose of carrying the same into effect.

(d) That the petitioner arrived in the United States from England in the year 1901 or 1902, attended American institutions of learning, took the oath of intention to become a citizen of the United States in 1903, and about the same time came to the Philippine Islands and has since then been engaged in newspaper work as editor and proprietor; that he continued to be engaged in newspaper work up to and including the time when the present proceedings were

The present action was instituted for the purpose of testing the legality of said order of deportation.

Speaking, in most general terms, the petition, the return made to the order to show why the writ prayed for should not be granted, and the record, present but two questions:chanrob1es virtual 1aw library

1. Is the Governor-General, of the Philippine Islands, vested with the power and authority under the law, as the Government of the Philippine Islands is now organized under the Jones Law, to deport subjects of a foreign power?

2. Granting that such power exists, was the petitioner given the hearing required by law?

There is nothing in the record nor in the argument in support of the petition which shows in the slightest degree that the order of deportation was not made in the utmost good faith, fully believing that full and complete power existed for the action taken in detaining the petitioner. There is nothing in the record which even tends to show, or which even intimates, that the action taken was not done with the utmost good faith. It is believed that no one is more deeply interested in maintaining and adequately protecting all of the liberties of the inhabitants of the Philippine Islands than the present Chief Executive. He has demonstrated his high sense of the liberties of the people in word and action. His precepts have been exemplified by his official action. He is in a large measure responsible for the now autonomous government which exists in the Philippine Islands to-day, and the Filipino people will revere and honor his name, forever. But good intentions, honest motives, and high ideals are not sufficient to justify the exercise of a power which does not exist.

RIGHT OF THE COURT TO INQUIRE INTO LEGALITY OF ORDER OF DEPORTATION.

At the beginning of the hearing in this court upon the petition and return, there was a suggestion made that the court was without authority or jurisdiction to inquire into the legality of the order of deportation in question. Granting that the power to deport aliens exists under the law and that it was exercised in accordance therewith and that there was no abuse of such authority, then and in that case the courts are without power or authority or jurisdiction to change, alter, revoke, or modify, in any way whatsoever the said order of deportation issued by the Governor-General. Upon the other hand, if such power does not exist under the law or if it was not exercised in accordance with the provisions of law, then and in that case it is the legal and sworn duty of the courts to inquire into the legality of the same by the method and by the procedure invoked by the petitioner. (Section 77, G. O. No. 58 (April 29 1900); section 530, Act No. 190 (October 1, 1901); section 5 Act of Congress of July 1, 1902; section 3, Act of Congress of August 29, 1916 [Jones Law].)

Paragraph 1 of section 3 of the Jones Law, among other things, provides that no person shall be deprived of his liberty without due process of law. That inhibition and protection which the inhabitants of the Philippine Islands enjoy involves two separate and distinct ideas

1. There must be a law authorizing the detention and restraint of persons of their liberties;

2. That the detention must be exercised in accordance with a procedure which affords the person an opportunity (a) to be informed of the charges preferred against him (b) to be confronted with the witness against him (c) to be present at the hearing; (d) to present proof in his defense; (e) to be represented by an attorney, if he so desires; (f) to his liberty during the actual trial; (g) to cross-examine the witnesses; and (h) to bail, except in certain cases, during the pendency of the action or proceedings.

While the courts hesitate, and rightfully so, to inquire into the legality of the acts of the executive department of the government, yet they are without discretion, in the premises in cases where it is alleged that a person is being illegally deprived of his liberty by that department. The law makes no distinction with reference to the person or persons who are responsible for illegal and unlawful detentions. The mere fact that such alleged illegal deprivation of liberty, is caused by the Chief Executive, in the face of the mandatory provisions of the law, is no sufficient excuse or justification for a refusal on the part of the courts to take jurisdiction for the purpose of inquiring into such alleged illegal detention. Under the system of checks and balances, by virtue of the existence of the different departments of the Government, in the Government of the United States and the Territories subject to its control, it becomes the legal and bounden duty of the courts to inquire into the legality, when called upon so to do, of the acts of other departments of the Government and to make pronouncements thereon. (U. S. v. Ten Yu, 24 Phil. Rep., 1, 10; Case v. Board of Health and Heiser, 24 Phil. Rep., 250, 276; U. S. v. Joson, 26 Phil. Rep., 1, 65; U. S. v. Gomez Jesus, 31 Phil. Rep., 219.)

For every person who is illegally deprived of his liberty the law affords a remedy by the ancient and historic writ of habeas corpus. The Jones Law expressly provides (paragraph 7, section 3) that "the privilege of the writ of habeas corpus shall not be suspended unless when in case of rebellion, insurrection, or invasion, the public safety may require it," and that no person shall be deprived of his liberty or life or property without due process of law. (Barcelon v. Baker and Doe Thompson, 5 Phil. Rep., 87; Moyer v. Peabody, 212 U. S., 78; 148 Fed. Rep., 870; In re Moyer, 35 Colo., 217; 12 L. R. A. [N. S. ], 1002; Ex parte Milligan, 4 Wall. [U. S. ], 2.

No contention is made that the writ has been suspended. The terms of this quoted provision of the Jones Law necessarily imply judicial inquiry and judicial action. (Ex parte Yerger, 75 U. S., 85.)

In England all the higher courts were vested with jurisdiction to grant the writ of habeas corpus. It was considered as the only adequate remedy by which persons could be protected in their individual rights. The remedy was early conceded to the colonists of the North American Continent. One of the very first acts adopted by the Congress of the United State, under the Constitution, was to invest the courts with full and ample power to grant the writ of habeas corpus. (I Stat. at L., 81.)

The remedy by habeas corpus was granted and enforced in the Philippine Islands by the Military Government. (G. O. No. 58.) President McKinley was not unmindful of the inviolable rights of the inhabitants of the Philippine Islands for the reason that when giving his Instructions to the United States Commission, he ordered, that no person shall be deprived of life, liberty or property without due process of law. The United States Commission, in obedience to that command, in one of the earliest acts adopted by it, provided that in order to test the legality of any deprivation of liberty, the courts were given jurisdiction to grant the writ of habeas corpus. (Secs. 17 and 56, Act No. 136.) Not only did the law confer upon the courts jurisdiction to issue the writ of habeas corpus, but expressly ordered them to exercise the same whenever it was made to appear that the writ ought to issue. (Sec. 530, Act No. 190; sec. 80, G. O. No. 58.)

Section 77 of General Orders No. 58 provides that every person unlawfully restrained of his liberty under any pretension whatever, may prosecute a writ of habeas corpus, in order that the courts may inquire into the cause of such restraint. The writ of habeas corpus has been denominated the palladium of the political rights of man. (Blackstone’s Commentaries.) It is the means by which judicial inquiry is made into the alleged encroachments upon the political and natural rights of individuals. It has for centuries, been used to protect the individual against the illegal encroachments upon his rights by whatever department of the Government. (Ex parte Milligan, 4 Wall., 2; Ex parte Stacy, 10 Johnson [N. Y. ], 333.)

"It is the indispensable duty of this court, and one to which every inferior consideration must be sacrified," says Chief Justice Kent, "to act as a faithful guardian of the personal liberty of the citizen and to give ready and effectual aid to the means provided by law for its security. . . . Nor can we hesitate in promptly enforcing a due return to the writ, when we recollect that, in this country, the law knows no superiors." (Ex parte Stacy, supra.)

The provision of the Jones Law, that no person shall be deprived of his liberty without due process of law, means that no person shall be imprisoned or restrained except under some provision of the law of the land. The words "law of the land" and "due process of law" are employed interchangeably in Constitutional Law and means the same thing. (State v. Simons. 2 Spears, 761; Parsons v. Russel, 11 Mich., 129.)

It has been said that when the Government provided that no person shall be deprived of his liberty without due process of law, "it means that every person shall hold his life, liberty, property, and immunities under the protection of general rules of law." (Dartmouth College v. Woodward, 4 Wheat. [U. S. ], 578.

The Supreme Court of the United States has in numerous cases held that it will intervene, and pronounce illegal and void any act of any official of any department of the government when by such act any person has been deprived of his liberty without due process of law. Such authority is exercised without reference to whether the person so deprived of his liberty is a citizen, denizen or alien. Of course, we are not here discussing war powers. They are not involved here. There is a clear distinction between pronouncing the acts of an official illegal and void and holding him liable in damages when he has acted in good faith and especially when the act complained of was an act in state. (Musgrave v. Chun Teeong Toy, L. R. A. C. [1891], 272; In re Adams, 1 Moore’s Privy Council, 460.)

If an act of the legislative or executive department of the Government is to be held illegal upon judicial inquiry, because it deprives persons of their liberties, it is not because the courts have any control over the legislative or executive power, but because the act itself is forbidden by the fundamental law of the land, and because the will of the people, as declared in such fundamental law, is paramount over all of the departments of the government and must be obeyed by all public officials as well as private individuals In pronouncing a statute, or a particular act of any individual or official in any department of the Government illegal the courts are simply interpreting the meaning, force and application of the fundamental law of the State. (Case v. Board of Health and Heiser, 24 Phil. Rep., 250.) We are of the opinion that the court has full and ample power and jurisdiction to make the inquiry invoked by the petitioner.

FORMER DECISION.

With reference to the first question above suggested, it was argued by the respondent that the same had been answered in the affirmative by this court in the decision of the case of Forbes v. Chuoco Tiaco and Crossfield (16 Phil Rep., 534). In that case Forbes, acting in his capacity as Governor-General of the Philippine Islands, deported the plaintiff. Later he returned to the Philippine Islands and instituted a civil action against Forbes for damages. This court decided that Forbes, as Governor-General, was not liable in damages. An appeal was taken to the Supreme Court of the United States and there that decision was, by a unanimous opinion, confirmed. (Tiaco v. Forbes, 228 U. S. 549.)

In the case of Forbes v. Chuoco Tiaco and Crossfield certain reasons were given in support of the contention that the Governor-General, "acting in state," under his powers then existing, had full and complete authority to deport aliens whom, he believed or had good reason for believing were a "menace to the good order, peace, and tranquility of the State," and was, therefore, not liable in damages for the due exercise of that authority; that his act of deportation was "an act of state," and was fully justified and supported by the powers then vested in him as the Government was then organized and constituted. The arguments adduced by a divided court in support of that conclusion were based upon three principal grounds:chanrob1es virtual 1aw library

1. That the Military Government, which immediately preceded the then Civil Government, acting under the war power, possessed and freely and frequently exercised the power to deport not only aliens, but citizens of the Philippine Islands;

2. That "all military, civil, and judicial power" theretofore held and exercised by the Military Government had been transferred and turned over, without limitation or specification, to the Civil Government as then constituted;

3. That even though said power did not exist, for said first and second reasons, his exercise of the same had been expressly ratified and fully confirmed by the legislative department of the Government by a resolution of the 19th day of April, 1910, and that his acts having been fully ratified he was not liable in damages. (Forbes v. Chuoco Tiaco and Crossfield, 16 Phil. Rep. 534, 571; Resolution of the Philippine Legislature, April 19, 1910; United States v. Heinszen & Co., 206 U. S., 370; O’Reilly de Camara v. Brooks, Major General, 209 U. S., 45; Tiaco v. Forbes, 228 U.S., 549; Act of the Philippine Legislature, No. 2113.)

That case (Forbes v. Chuoco Tiaco and Crossfield, 16 Phil. Rep. 534) was appealed to the Supreme Court of the United States and there confirmed (Tiaco v. Forbes, 228 U. S., 549). The Supreme Court of the United States evidently did not regard the first and second reasons given above as sufficient to justify the conclusion reached by this court, for the reason that it based its decision and confirmation upon the third ground above mentioned, and decided, in effect, that the act of Governor Forbes, in deporting said aliens, having been ratified by a statute of the Philippine Legislature, and having been done under and by virtue of the combined powers of the executive and legislative departments of the government, and thereby having acted in state, he was not liable in damages. (Tiaco v. Forbes, 228 U. S., 549, 556.) Whatever may have been the former opinion the members of this court with reference to the sufficiency of the first and second reasons, they must now be held to be insufficient and therefore be denied. That court having the right and the final authority to review the decisions of this court in cases like the present, we must submit to and be governed by the doctrine and jurisprudence which it announces. An amendment of the law may be such as to entirely change and abrogate a long line of established jurisprudence. For example, in the case of Pollock v. Farmers’ etc., Co., the Supreme Court of the United States decided that an Act, providing for an income tax, was unconstitutional. (157 U. S., 429; 158 U. S., 601.) In 1913, by virtue of a change of the Organic Law, a similar act was held to be perfectly valid. Many other cases might be given to show how jurisprudence has been revoked and modified by subsequent legislation. (See Molina v. Rafferty, p. 167, post.)

In view of the foregoing, we think the conclusion must be inevitable, that, even as the Civil Government was then organized, the Governor-General as such did not possess in himself alone the power or authority to deport aliens without authority expressly granted or ratified, either by the Legislature of the Philippine Islands or by an Act of the Congress of the United States; that if the power did exist then it was by virtue of the combined powers of the executive and legislative departments of the Government. The Philippine Legislature was evidently of the same opinion or otherwise the ratification of April 19, 1910 (Acts Nos. 1986 and 2113) would not have been expressly given. Legal acts or acts done with authority need no ratification. Ratification is only necessary to cure some power or authority not existing at the time it was exercised.

RIGHT OF SOVEREIGN GOVERNMENT TO DEPORT ALIEN.

It is a doctrine so well established now that it scarcely needs citation of authorities in its support that "the right of a nation to expel or deport foreigners who have not been naturalized or taken any steps toward becoming citizens of the country, rests upon the same ground and is as absolute and unqualified as the right to prohibit and prevent their entrance into the country. The power to exclude or expel aliens being a power affecting international relations. is vested in the political department of the Government. The power to exclude aliens and the power to expel them rest upon one foundation, are derived from one source, are supported by the same reasons, and are, in truth, by the exercise of one and the same national or sovereign power. Such power is an incident of every independent nation or sovereign. It is a part of its independence, for if it could not exclude aliens it would be, to that extent, subject to the control of other powers. The power of exclusion of foreigners, being an incident of sovereignty or nationality belonging to the Government of the United States as a part of its sovereign powers delegated by the Constitution, the right to its exercise at any time when, in the judgment of the political department of the Government, the interests of the country require it, cannot be granted away or restrained on behalf of anyone. Such sovereign or national powers cannot be abandoned or surrendered nor can their exercise be hampered when needed for the public, by any consideration of private interests. It is an ancient maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to preservation, to forbid the entrance of foreigners within its dominions or to admit them only in such cases and upon such conditions as it may see fit to prescribe either by law or by treaty. (Ekiu v. U. S., 142 U. S., 651; Fong Yue Ting v. U. S., 149 U. S., 698; Forbes v. Chuoco Tiaco and Crossfield, 16 Phil. Rep., 534; 13 Law Quarterly Review, 165.)

A foreigner may be objectionable as a citizen not only because of his criminal antecedents, but also because of his physical or mental condition, or because his development as a civilized being is below that of the mass of the population of which he proposes to become a member, and for those reasons and many others, entirely within the breast of the sovereign, aliens may be excluded as well as expelled. All continental governments have exercised the right of excluding and expelling aliens for purposes of state, and have exercised such powers freely when they considered it necessary so to do. And it has been held in numerous cases that an alien so excluded or expelled has no right of action against the sovereign which expels or excludes him or an official of such government who acts in obedience to commands of his government in the performance of an act in state. (Burong v. Venman, 2 Exchequer, 167; Musgrove v. Chun Teeong Toy, [1891] Appeal cases, 272.)

NECESSITY OF LAW OR AUTHORITY TO JUSTIFY THE EXERCISE OF POWER TO DEPORT IN THE UNITED STATES AND ITS DEPENDENCIES AND WHERE LODGE.

It being a well-established doctrine, and not now denied by any of the civilized nations of the world, that every sovereignty possesses the inherent power to regulate, by law, the admission into and exclusion from his country of aliens, as well as to regulate the manner, their residence while permitted to remain within his territory, it becomes necessary then to discover just where such inherent power in the sovereignty is located by law. The question, what entity, person or department of the sovereignty may exercise that power, is a more difficult one. In absolute monarchies, all the sovereign powers are vested in the monarch. In limited monarchies the sovereign powers are divided. In democracies and republics the sovereign powers are generally vested in the people and remain there until they have delegated them by law to certain specified officials or departments of the government. In England such powers were formerly exercised by the king without the consent of Parliament. But in later times such powers were regulated by Parliament and were delegated to such persons or departments as were ’specifically authorized by acts of Parliament. (Musgrove v. Chun Teeong Toy supra; 1 Blackstone’s Commentaries, 260; Chitty, Prerogatives of the Crown, 49; 2 Coke’s Inst., 57.)

In the United States, from the time of its organization, this power has been vested in the political department of the Federal Government composed of the executive and legislative departments. (The Chinese Exclusion Case, 130 U. S., 581; Ekiu v. United States, 142 U. S., 651; Fong Yue Ting v. United States, 149 U. S., 698; Wong Wing v. United States, 163 U. S., 228; 2 Corpus Juris, 1075; 1 R. C. L., secs. 41, 42; Bugajewitz v. Adams, 228 U. S., 585.)

In the United States the power to exclude or expel aliens may be exercised in the political department of the Government (a) by the President and Senate in their combined treaty-making power, or, (b) through statutes enacted by Congress. (United States v. Ju Toy, 198 U. S., 253; United States v. Williams, 194 U. S., 27g; Japanese Immigrant Case, 189 U. S., 86; Pearson v. Williams, 202 U. S., 281; Zakonaite v. Wolf, 226 U. S., 272; 2 Corpus Juris, 1075)

Justice Gray, speaking for the court, in the case of Ekiu v. United States, said: "In the United States this power is vested in the National Government, to which the Constitution has committed the entire control of international relations, in peace as well as in war. It belongs to the political department of the Government, and may be exercised either through treaties made by the President and Senate, or through statutes enacted by Congress, upon whom the constitution has conferred power to regulate commerce with foreign nations." (Head Money Cases, 112 U. S., 580; The Chinese Exclusion Case, 130 U. S., 581.)

The Constitution of the United States speaks with no uncertain sound upon this subject. That instrument, established by the people of the United States as the fundamental law of the land, has conferred, upon the President, the executive power; has authorized him, by and with the consent of the Senate, to make treaties and has made it his duty to take care that the laws be faithfully executed.

The Constitution has granted to Congress the sole power to regulate commerce with foreign nations including the importation of goods and the bringing of aliens into the ports of the United States and to make all laws necessary and proper for carrying into execution these powers and all other powers vested by the Constitution in the Government of the United States or in any department or officer thereof. The power to exclude and to expel aliens in the United States is vested in the political department of the Government and the exercise of such power is regulated by a treaty or by Act of Congress and is executed by the executive authority according to such regulations. (Fong Yue Ting v. United States, 149 U. S., 698.)

RIGHT OF STATES, TERRITORIES AND DEPENDENCIES TO EXERCISE POWER OF DEPORTATION.

While the different States of the Union are regarded as sovereign in certain spheres of action, they have been denied the right to exclude or expel aliens as such and for that reason. (In re Ah Fong, 3 Sawy., 144; State v. The S. S. Constitution, 42 Cal., 578; 7 Cyc., 419.)

In the case of In re Ah Fong, supra, the court said: "Whatever outside of the legitimate exercise of this right affects the intercourse of foreigners with our people, their immigration to this country and residence therein, is exclusively within the jurisdiction of the General (Federal) Government’ and is not subject to state control or interference."cralaw virtua1aw library

Considering then that the Federal Government has reserved to itself, as against the states thereof, the exclusive right to regulate the question of the right of aliens to enter and exclude them, and that such right is denied to the State, can we conclude that the Territories of the United States are possessed of this power? Territories and dependencies of the United States are mere agents of the Federal Government, organized under special acts of Congress (charters) with certain specific, general and limited powers. Their powers, like those of every other agent, whatever they may be, must be found in the charter, expressed or by necessary implication from such expressed powers. Even the provisions of the Constitution of the United States are not applicable to the Territories and dependencies of the United States, unless they are expressly made so. (Downes v. Bidwell, 182 U. S., 244, 267.) The territories and dependencies of the United States are governed by virtue of special or general laws made applicable thereto They are not organized under the Constitution, nor subject to its complex distribution of the powers of government, as the Organic Law. They are the creations, exclusively, of the legislative department of the Government, and subject to its supervision and control. (Benner v. Porter, 9 How. [U. S. ], 235; Clinton v. Englebrecht, 13 Wall. [U. S. ], 434; Good v. Martin, 95 U. S., 90; McAllister v. United States, 141 U. S., 174; Downes v. Bidwell, 182 U. S., 244, 267; McCulloch v. Maryland, 4 Wheat., 316; Rommey Church v. United States, 136 U. S., 3.)

The power of Congress over the Territories of the United States is general and plenary, arising from and incidental to the right to acquire the territory itself, and from the power given by the Constitution to make all needful rules and regulations respecting the territory or other property belonging to the United States. (Downes v. Bidwell, supra.)

From the foregoing, we are of the opinion that it must follow, that the Territories and dependencies of the United States, the same as the States of the Union, are not authorized, in the absence of express authority, to legislate upon the question of the immigration of aliens.

RIGHT OF GOVERNMENT OF PHILIPPINE ISLANDS TO DEPORT ALIENS. HAS AUTHORITY BEEN GIVEN AND HAS IT BEEN EXERCISED?

With that conclusion it becomes necessary to inquire next whether Congress, in the exercise of its exclusive authority to legislate for the territories and dependencies, has by any legislation conferred upon the Government of the Philippine Islands authority, on its own account, to admit or expel aliens? If such authority has been given, upon whom and upon what department of the government has the exercise of the same been imposed?

With reference to the laws providing for the deportation of persons from the Philippine Islands, an examination of the laws in force shows, at least, several which provide for the exclusion and expulsion of aliens. The first is the immigration laws (The Chinese Exclusion Laws) of the United States, which are made applicable to the Philippine Islands. These laws provide for the exclusion of Chinese persons, persons suffering from some loathsome diseases, and other persons who are expressly mentioned by classes. That law is enforced by the Department of Customs and the Bureau of Health, and those departments are given final jurisdiction, subject to certain restrictions. The second is the contract labor law which is also enforced by the Department of Customs with certain limitations. (In re Allen, 2 Phil. Rep., 630.) The third is Act No. 702 adopted by virtue of authority of Congress, expressly authorizing and requiring the Philippine Government to register all Chinese laborers and to deport those who refuse so to do after a certain period. The deportation, under that law, when it is made, is done after hearing duly had by the courts. The fourth is Act No. 2381 which permits the courts to deport certain aliens under express conditions therein given. The deportation provided for in that Act is in the nature of a punishment for the violation of the Opium Law. It is notable that none of these laws authorize the Governor-General to deport any of the classes of persons mentioned. There is no contention made here that the petitioner is a Chinaman, a laborer or that he has violated the Opium Law. The fifth is the Act of Congress of February 5, 1917 (vol. 39 Stat. at L., 874), known. as an Act "to regulate the immigration of aliens to, and the residence of aliens in, the United States." That Act is made applicable to the Philippine Islands, and will be enforced by the "officers of the General Government thereof." Said Act provides that certain classes of aliens may be excluded and expelled. No contention is made that the petitioner belongs to any of the classes mentioned. The sixth is section 69 of Act No. 2711. That section provides simply a procedure for the deportation of "subjects of a foreign power." It is contended, from the mere fact that a procedure has been adopted by which the powers ma be exercised, that the right to deport may be inferred A further discussion of section 69 will be taken up again in this opinion.

The petitioner contends that even though it be conceded that the power to deport aliens by the Governor-General existed at the time Governor-General Forbes exercised it, it does not exist now. He asserts that the powers of the Government of the Philippine Islands as they existed prior to the Jones Law are very different from the powers existing after the passage of that law. He contends that, even though the power to deport aliens existed in the Governor-General or (and) the Philippine Legislature prior to the Jones Law, under the general powers then possessed, such power no longer exists, for the reason: (a) That the powers and duties of the Governor-General are no longer general or indefinite but are now limited and specifically defined, and that the power to deport aliens is not among such powers; (b) that, while perhaps the Philippine Legislature is given authority, under certain limitations, to legislate upon questions affecting immigration by the deportation or exclusion of aliens, it has not as yet done so (sec. 10, Act of Congress of August 29, 1916, Jones Law); (c) that Congress in an Act of February 5, 1917 (vol. 39, par. 1, Public Laws of the United States) made specific provisions for the deportation and exclusion of aliens; (d) that said Act of Congress is the only law, with certain exceptions, in force in the Philippine Islands permitting the exclusion or expulsion of aliens and that the petitioner is not included in any of the classes mentioned; (e) that while certain laws are in force in the Philippine Islands, providing for the deportation of certain classes of aliens, under certain conditions named, they are not applicable to the petitioner, and (f) that there is nothing in the record, nor in the order of deportation, which falls within the provisions of said Act of Congress nor within the provisions of said laws, and contends that inasmuch as there is no law authorizing the deportation, the order issued for that purpose is illegal and void.

The respondent upon the other hand contends that express authority for the exercise of the power by the Governor General in the premises is found in (a) section 69 of Act No. 2711; (b) by virtue of the general powers conferred upon him by reason of his being made the supreme executive power in the Philippine Islands under section 21 of the Jones Law; (c) that under the decision of this court in the case of Severino v. Governor-General and Provincial Board of Occidental Negros (16 Phil. Rep., 366) the court can not inquire into the legality of the acts of the Governor-General, and (d) by reason of the existence of some general rule of international law.

With reference to the first contention of the respondent, an examination of said section (69) discloses the fact that it provides a procedure only for the deportation of the "subjects of a foreign power." There is not a word of express authority found in said section. It contains an assumption that the power exists and provides that it shall be exercised in the manner therein indicated. May the courts assume that the power, to deport aliens, was given by the Legislature to the Governor-General simply from the fact that said section provides a procedure for the deportation of subjects of a foreign power? Suppose it be admitted, for the purpose of the argument, that section 69 does, in fact, create the right to deport aliens. When and under what circumstances may such right be exercised? The Act itself is silent upon that question. Does the section attempt to say what aliens may be deported? Does it include friendly as well as enemy aliens? The section again contains no answer. Does it define when and for what acts they may be deported? The section will be examined in vain for a reply. Did the Legislature intend, by creating the supposed power, that some individual or official in the Government might determine, according to his particular whim or caprice, the facts, the acts, and the conditions under which it might be exercised? In the Philippine Islands no act is a crime unless it is made so by law. The law must specify the particular act or acts constituting the crime. If that were not so, the inhabitants could not know when they would be liable to be arrested, tried and punished. Otherwise the mandatory provisions of the law, that all criminal laws shall be prescribed, would prove to be a pitfall and a snare. The inhabitants of the Philippine Islands, whether citizens, denizens or friendly aliens, have a right to know, in advance of arrest, trial and punishment, the particular acts for which they may be so tried. They cannot be arrested and tried, and then be informed for the first time that their acts have been subsequently made a crime, and be punished therefor. While it is true that the deportation of aliens is not a criminal action, in fact, it is, nevertheless, a procedure by which they are deprived of their liberties, which cannot be done except by due process of law. Due process of law implies that there must be both a law and a procedure. The law must define the conditions under which the procedure shall be based. And the procedure must be such as to afford ample opportunity for a full and fair defense. Said section, if it is to be given the effect contended for; violates every requirement that laws shall be prescribed.

And, moreover, if an examination of said section 69 be made, in relation with its antecedents (Acts Nos. 1986 and 2113), it will be seen that, even though it be conceded that the Legislature had authority to grant the power exercised in the premises, it never intended to confer the power but simply to provide a method of procedure for the exercise of the supposed power. The preamble or whereases in said antecedents (Acts Nos. 1986 and 2113) expressly state that inasmuch as "it has been decided" that the power to deport aliens exists in the Governor-General, then he must exercise it in the manner therein defined. That is a very different condition from what would have resulted had the Legislature said; "The Governor-General is hereby given the power to deport aliens for reasons mentioned, and when he does so, he shall follow a particular procedure." In their last analysis, the effect and meaning of said Acts (Acts Nos. 1986 and 2113) and of said section (69) are simply that the Legislature said that "if the power to deport aliens exists in the Governor-General for any reason in his opinion sufficient, then he must exercise it according to the method prescribed."cralaw virtua1aw library

While there is some apparent conflict in the authorities, we are of the opinion, especially in matters touching the life, liberty and property of the inhabitants of the Philippine Islands, that no substantive law or power can be created by the mere adoption of a simple procedural law. A procedural law purely, which does not define the particular conditions and circumstances to which it may apply, cannot be construed into the creation of rights and powers which do not otherwise exist. In our opinion, section 69 was adopted under a misapprehension of the actual state of the law as it exists now and cannot be held to have established the right to exercise the power or authority contended for in the premises.

With reference to the second contention of the respondent, that the Governor-General has the power to deport aliens by virtue of the fact that he is made "the supreme executive power" under the Jones Law, it may be said that that fact does not authorize him to do what the law has not authorized. Under and by virtue of said power, it is his duty to see that the laws are faithfully and justly executed. He is not authorized to legislate — that power is expressly conferred upon the Philippine Legislature by virtue of sections 8 and 12 of the Jones Law, with certain limitations. The power to legislate is expressly delegated to others. The duties of the Governor-General, under the Jones Law, are specified and limited and defined, prior to the passage of the Jones Law, the power of the Governor-General was general and not specifically defined by any Act of Congress (Acts of Congress March, 1901; July 2, 1902). The Government of the Philippine Islands is a government by law. As the Chief Executive it is the duty of the Governor-General to execute the laws and not his Will. We are of the opinion that, in the Philippine Islands to-day under the Jones Law, as everywhere else under the American flag, there is no sovereign except the people and no ruler except the law. The public officials are the mere instrumentalities through which the sovereign speaks and acts.

Justice Miller, in the case of United States v. Lee (106 U. S., 196), in discussing the obedience of public officials to the law, said: "The law is the only supreme power in our system of government, and every man who, by accepting an office, participates in its functions, is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives."cralaw virtua1aw library

The respondent further contends that, under the decision of this court in the case of Severino v. Governor-General and Provincial Board of Occidental Negros (16 Phil. Rep., 366), this court cannot inquire into the legality of the detention of the petitioner. That case was an action to compel, by mandamus, the Governor-General to do certain things in the doing or not doing of which he had the right to exercise his discretion. The court simply held that it would not, by mandamus, require him to exercise, in a particular way, duties the performance of which was within his discretion. The court simply followed the general doctrine in such cases. There is but little analogy between a case where the courts are called upon to require a particular official to exercise his discretion and a case where he is acting but without authority and is illegally depriving persons of rights guaranteed to them by the fundamental law of the land. For further answer to that contention reference is hereby made to the argument above on the jurisdiction of the courts to make the present inquiry.

In this relation it may be noted however that the Governor-General is not a party to the present proceedings. The court is not called upon to require the Governor-General to act nor to restrain him from acting. The court is called upon to decide whether or not the order of deportation in question is authorized by law. It is unnecessary to repeat again the argument presented above to support the right of the court, in a habeas corpus proceeding, to inquire into the legality of the act of any officer or individual who in any way whatsoever deprives any persons of their liberty without authority of law.

With reference to the contention of the respondent that the exercise of the right to deport "subject of a foreign power" may be found in some rule of international law, we deem it sufficient to say that no rules of international law are, as such, inforceable or cognizable by the Philippine Government nor by the officials thereof. The Philippine Government has no international relations except through the Federal Government of the United States. All questions affecting international relations are expressly reserved to the political department of the Federal Government. (Constitution of the United States.)

We deem it unnecessary here to discuss or to consider the power to deport aliens as it existed under the Spanish Government in the Philippine Islands for the reason that whatever power existed then, existed as a political power and that whatever that was, the same has been abrogated by a change in sovereignty, and is therefore not in force or effect now. (American Insurance Co. v. Canter, 1 Peters [U. S. ] 511, 543.)

Returning to a consideration of the contention of the petitioner to wit: that the power to deport aliens does not now exist in the Philippine Government, whatever might have been its powers prior to the adoption of the Jones Law, it may be said, that the Jones Law has created for the Filipino people, practically an autonomous government. The ’Tones Law is a charter of express powers, it is the constitution, the fundamental law of the Philippine Archipelago. By the Jones Law, the people of the Philippines are expressly granted practically all of the powers which are granted to the inhabitants of the territories in the United States. These powers are enumerated and specified. Under the Jones Law all the powers of government no longer exist in the Government of the Philippine Islands. The Philippine Islands is not an independent sovereignty. (See preamble to Jones Law. )The Government now established must find authority in that law, or in some other law, either expressly or by implication, for its exercise of powers. It is no longer exercising any inherited military powers. If authority for the exercise of a particular power cannot be found in some law the presumption must be that it does not exist. Accepting the doctrine announced by the Supreme Court of the United States in the Forbes case, that the power to deport aliens existed only by virtue of the "combined powers of the legislative and executive departments of the Philippine Government" as it then existed, we proceed to an examination of the Jones Law and such other laws as may be found affecting the present powers of the Government, for the purpose of ascertaining whether or not such power exists now. If no such authority in law is found to exist in any of such laws, then we must conclude that the exercise of the same in the premises is illegal and void, and that the petitioner is deprived of his liberty without due process of law and must be discharged from custody.

1. Is there any law conferring upon the legislative department of the Philippine Government to provide for the deportation of "subjects of a foreign power?" 2. Is there any law conferring like powers upon the executive department of the Government? And 3. Is there any law in force in the Philippine Islands which authorizes said departments, in their combined powers, to deport the petitioner?

With reference to the legislative department, we find that certain powers are expressly conferred and others are expressly forbidden by the Jones Law. (Sections 2, 3, 7, 8, 9, 10, and 11.) While still other powers are granted with certain fixed limitations. (Sections 7, 8, 9, and 10.) While at the same time the Government of the United States reserves the right not only to legislate for the Philippines, but in certain cases to nullify and veto the acts of the Legislature (Sections 5, 9, and 10.) While the Legislature is given power, subject to the limitations imposed, to adopt laws affecting immigrations (section 10), that power has not yet been exercised, and it is not at all certain, due to said limitations, that any act adopted may ever become a law. But it is contended that the Legislature has, in fact, legislated and has created authority for the issuance of the order in question by virtue of said section 69 of Act No. 2711. In answer to that contention reference is made to the argument above where we expressed the opinion that that section did not create the right to deport the petitioner. Is there any other law or laws which confer the power in question upon the Legislature? As has been noted above there are other laws, but they neither confer the power nor justify its exercise in the premises.

Does the power contended for by the respondent exist now in the Governor-General under the Jones Law or any other law? The petitioner asserts that it does not, and contends that even though it did formerly, the same has been revoked by implication by virtue of an Act of Congress (March 5, 1917; 39 Stat. at L., p. 874) which expressly regulates the power and has substituted another law regulating the "Immigration of aliens into, and residence of aliens in, the United States" and its dependencies. Said Act is expressly made applicable to the Philippines (section 1). Said Act of Congress expressly provides that "all other acts and parts of acts inconsistent with this Act are hereby repealed," (section 38) subject to certain exceptions specifically enumerated. The Jones Law is not mentioned among the said exceptions. We must conclude, therefore, even though there existed authority in the Jones Law, either expressly or impliedly, that it does not exist now.

But the respondent further contends that the power exercised in the premises exists in the Governor-General by virtue of being vested with "the supreme executive power;’ (sec. 21). An examination of section 21 discloses that while "the executive power" is vested in the Governor-General, the same section at the same time points out and specifically enumerates the particular powers which he may exercise and no mention is made of the power here contended for. There might be some merit in the contention of the respondent if it were not for the final provision of said section 21 which says that "he (the Governor-General) shall perform such additional duties and functions as may, in pursuance of law, be delegated or assigned to him by the President." If it had been the intention of Congress to confer upon the Governor-General any other power, or general powers, not enumerated in said section 21, then, why did it at the same time further provide for the performance of such additional duties and functions as might be conferred "in pursuance of law as might be delegated to him?" The fact that the powers expressly conferred and specifically enumerated with the provision that others might be given justifies the inference that those expressed power are the only powers possessed until others are given. We are not of the opinion that the power contended for is found in the Jones Law, either expressly or by implication.

The Act of Congress of February 5, 1917, provides that that law shall be enforced in the Philippine Islands by the "officers of the General Government thereof." May the power in question be claimed under that provision by the Governor-General? There might be some basis for that contention if the petitioner belonged to any of the classes of persons who might be expelled under said law. Said law specifically mentions all the classes of aliens who may be excluded or expelled. It not having been shown that the petitioner belongs to any one of the classes of persons mentioned in said Act, it cannot be made to apply to him and he cannot be deported by virtue of any of the provisions thereof. Even that law does not confer upon the Governor-General the power or authority to deport him.

Does the right to deport the petitioner exist by virtue of the combined powers of the executive and legislative departments of the Philippine Government? If such combined power exist it is only by virtue of said section 69. No other law has been cited nor invoked to sustain that contention. What has been said above, reference to which is hereby made, sufficiently negatives that contention.

CONCLUSIONS.

From all of the foregoing, our conclusions are:chanrob1es virtual 1aw library

1. That the court is not only authorized and given complete authority in proceedings like the present to inquire into the legality of the order in question, but it is under the legal obligation so to do.

2. That while the Legislature is given authority, subject to certain limitations, to adopt immigration laws it has not done so.

3. That there is no law now nor legal authority existing in any person or department of the Philippine Government, nor in any combination of such power or authority, to deport the petitioner under the admitted facts as they appear of record.

It should; therefore, be ordered and decreed that the remedy prayed for be granted, that the bond heretofore given to secure his temporary release should be cancelled and that he should be released from the custody of the law. It should be so ordered, without costs.

Street and Fisher, JJ., concur.

MALCOLM, J., dissenting:chanrob1es virtual 1aw library

After listening to the brilliant argument of council and after an intense and a conscientious study of the various phases of this important case, I have felt it my duty to set forth my views in a separate opinion. As announced in public hearing, I have before coming on the bench taken part in the preparation of the opinion of the Attorney-General of June 8, 1910, and in the submission of the position of the Government in Severino v. Governor-General and Provincial Board 1 Of Negros Occidental, Forbes v. Chuoco Tiaco and Crossfield, 2 Tiaco v. Forbes, 3 and Chan Yick Sam v. Prosecuting Attorney, 4 all referred to in the argument and all given up to rendering more secure the position of the Governor-General. The attitude of the advocate may still lurk in my mental processes. Yet. even for these reasons, to have retired from a case of more than ordinary public significance, would have seemed to have shirked my full responsibility. With this personal prelude, I have to reach a decision through cumulative legal formulae sifted out of a formidable array of authorities.

Petitioner asks this court to grant a writ of habeas corpus. The acting chief of police of the city of Manila through the Attorney-General by way of return states that petitioner is held for deportation by reason of an order of the Governor-General.

A sketch of the right of the Governor-General of the Philippine Islands to deport aliens therefrom, edging into the present case, will serve to put the issues in their proper perspective.

Under Spain, the right to expel aliens from the Philippine Islands was vested in the administrative discretion of the Governor-General, first by the Real Cedula of March 11, 1819, and later by the Royal Order of August 2, 1888. After American occupation, the first known attempt to exercise such a power grew into the decision of the Supreme Court of the Philippine Islands in the case of Forbes v. Chuoco Tiaco and Crossfield ([1910], 16 Phil. Rep., 534). The decision of Justice Johnson, with whom concurred the Chief Justice and Justice Torres, reached the following conclusions:jgc:chanrobles.com.ph

"First. That the Government of the United States in the Philippine Islands is a Government possessed with ’all the military, civil, and judicial power necessary to govern the Philippine Islands’ and as such has the power and duty, through its political department, to deport aliens whose presence in the territory is found to be injurious to the public good and domestic tranquility of the people.

"Second. That the Governor-General, acting in his political and executive capacity, is invested with plenary power to deport obnoxious aliens whose continued presence in the territory is found by him to be injurious to the public interest, and in the absence of express and prescribed rules as to the method of deporting or expelling them, he may use such methods as his official judgment and good conscience may dictate.

"Third. That this power to deport or expel obnoxious aliens being invested in the political department of the Government, the judicial department will not, in the absence of express legislative authority, intervene for the purpose of controlling such power, nor for the purpose of inquiring whether or not he is liable in damages for the exercise thereof."cralaw virtua1aw library

Justice Moreland, with whom concurred Justice Trent reached the same result in a separate concurring opinion. Their conclusions were:jgc:chanrobles.com.ph

"First. . . . that the act was in the nature of a judicial act, the functions exercised were judicial in their quality and that he (the Governor-General) should have the same protection against civil liability in exercising this function that would be accorded to a court under similar circumstances.

"Second. . . . that the Government here is one of three departments — executive, legislative, and judicial — that the office of the Governor-General is one of the coordinate branches of the Government, and that the same public policy which relieves a member of the Legislature or a member of the judiciary from personal liability for their official acts also relieves the Governor-General in like cases."cralaw virtua1aw library

Pending resolution in the Philippine courts, the Legislature passed Act No. 1986 by which the action of the Governor-General was "approved, ratified, confirmed, and in all respects declared legal and not subject to question or review." This Act was considered by the Supreme Court of the Philippine Islands in reaching its decision. Following this decision and during the time taken to appeal to the United States Supreme Court, the Legislature enacted Act No. 2113, from its title "An Act regulating the authority of the Governor-General of the Philippine Islands to deport exclude, expel, or repatriate foreigners." The Unite States Supreme Court in Tiaco v. Forbes ([1913] 228 U. S., 549), affirmed the judgment of the Supreme Court of the Philippine Islands, saying that "in substance the decision of the Supreme Court was right." Thereafter, the Philippine Legislature in preparing the Administrative Codes of 1916 and 1917 carried into them a replica of Act No. 2113, undoubtedly under the belief, as expressed in said Act No 2113, that the Governor-General of the Philippine Islands had authority to expel foreigners.

With the decision of the Supreme Court of the Philippine Islands, affirmed by the Supreme Court of the United States, apparently deciding that the Governor-General had the power to expel aliens, and with section 69 of the Administrative Code, providing the procedure to be followed, investigation was begun in accordance therewith to determine whether R. McCulloch Dick, now the petitioner, shall be deported. Thereafter, an order was issued by the Governor-General directing the deportation of Dick to Hongkong. Every fair inference points to the conclusion that the Governor-General acted in good faith under the genuine belief that he was so authorized by law, and that he was impelled to perform the duty to protect and advance the vital interests of the United States and the Philippines in the war. Had not the Chief Executive understood that he had such power, there is not the slightest doubt but what he would have refrained from any action in the premises. No executive official in these Islands has ever been more careful to safeguard the law or more solicitous of the rights of the Legislature and the courts than the present Governor-General. The writer can more readily understand the existent mistake, if any, when he recalls that in another place he set down the following:jgc:chanrobles.com.ph

"‘The Government of the Philippine Islands’, as said by Mr. Justice Johnson of its Supreme Court in the sensational case of Forbes v. Chuoco Tiaco and Crossfield, ’may prevent the entrance into or eliminate from its borders all such aliens whose presence is found to be detrimental or injurious to its public interest, peace, and domestic tranquility.’ In the same case on appeal to the United States Supreme Court, Justice Holmes expressed the opinion for the Court that the Philippine Government had the right of deportation ’as an incident of the self-determination, however limited, given to it by the United States.’ This power belongs to the political department of the Government — in the Philippine Islands, to the Governor-General. Act No 2113 of the Philippine Legislature (Adm. Code, sec. 83) regulating the authority of the Chief Executive to expel foreigners, provides for a prior investigation and hearing"

JURISDICTION.

The first questions which present themselves go to our light to act at all. Who is to determine whether the Governor-General has the power to expel aliens — the Governor-General or the courts? If the answer by the courts, will this be taken to mean that the judiciary has encroached on the field of the Executive and in so doing broken down the independence of departments? Will authoritative decisions of the United States Supreme Court and of the Supreme Court of the Philippine Islands permit the courts to assume jurisdiction?

We must step through the threshold of the case into the midst of great principles of Constitutional Law and Political Science. We must perforce analyze the most fundamental attributes of the Government of the Philippine Islands.

The powers entrusted to the Government of the Philippine Islands are distributed among three independent departments, the Executive, the Legislative, and the Judicial. Every governmental step since American occupation of the Philippine Islands has developed this triple division of powers. Each department has separate and distinct function. Each department is coordinate and coequal with the other departments. Executive authority is vested in the Governor-General. Legislative authority is vested in the Philippine Legislature. Judicial authority is vested in the courts. With the exercise of these powers, another department cannot interfere. The temptation to extend the sphere of influence of any one department to another must be zealously guarded against.

The cases when examined reinforced these principles. The United States Supreme Court first impliedly in Marbury v. Madison ([1803], 1 Cranch, 173), and later directly in State of Mississippi v. Johnson ([1867], 71 U. S., 475), held that the courts will never assume jurisdiction over the official acts of the President. The Supreme Court of the Philippines in Severino v. Governor-General and Provincial Board of Negros Occidental [1910], 16 Phil., 366) after an exhaustive study of the authorities concluded with these words: "After due consideration, and being fully aware of the seriousness of the question, we have reached the conclusion that we have no jurisdiction to interfere with the Governor-General of these Islands, as the head of the executive department, in the performance of any of his official acts." The doctrines enunciated by these cases must not be disturbed.

The delicacy of the question is apparent when we come to realize the position of the Governor-General. The Organic Law gives to him supreme executive power. He more than any one else personifies sovereignty. He more than any one else is the Government. In the exercise of his important duties, he is responsible not to the courts but, through the President, to the sovereign people. Any collision between the Chief Executive and the highest court in the Philippines is to be deplored.

This position it is urged may leave a person without a remedy. The answer is that it leaves possible wrongs without a judicial remedy. Final decision must be left somewhere. In one instance it may be with the Legislature, in another instance with the Executive, and in another instance with the courts. The courts are not the repository of all wisdom. Mistakes are just as liable to occur in the Course of judicial proceedings as in executive or legislative proceedings. The presumption in favor of the correctness of executive action or legislative action is just as conclusive as of the justness of judicial action.

To maintain the balance of powers one department must act as a check on the others. It would then sometimes seem that one department has trespassed on the powers of the other department. Not necessarily so. The mere abstract statement of the principle discloses the reason. In a case which authoritatively considered this very subject, it was said: "The legislature must enact laws subject to the limitations of the organic laws, . . . The executive must execute such laws as are constitutionally enacted. The judiciary, as in all governments operating under written constitutions, must determine the validity of legislative enactments, as well as the legality of all private and official act." (U. S. v. Bull [1910], 15 Phil., 7.) More specifically stated, in the case of Province of Tarlac v. Gale ([1913], 26 Phil., 338), it was said: "That the court may declare a law passed by the legislature unconstitutional and void, or an act of the executive unauthorized and illegal, or that the legislature may curtail within limits the jurisdiction and power of the courts, or restrict, in a measure, the scope of the executive action; or that the executive may, by his veto, render null and ineffective the acts of the Legislature and thus effectually thwart the purposes of the majority, does not affect that independence. These are merely the checks and balances made by the people through the constitution inherent in the form of government for its preservation as an effective institution. In spite of these checks and balances, if not by reason of them, the fundamental departments of the Government are independent of each other in the true sense of the word. The quality of government consists in their remaining so." And finally, with particular application to the situation before us, we note the language of the United States Federal Courts as follows: "It has been settled from the adoption of the Constitution of the United States, dividing the powers of government into three departments, that the judiciary cannot properly interfere with executive action when the executive officer is authorized to exercise his judgment or discretion." (Dudley v. James [1897], 83 Fed., 345, 349. See also Noble v. Union River Logging R Co. [1893], 147 U. S., 165.)

Instances are known in American Constitutional History where executive have claimed the right to construe the constitution for themselves independently of the judiciary and in defiance of it. Presidents Jefferson, Jackson, and Lincoln thus took to themselves this function. These are the exceptions. It is now an established principle that it is for the courts to construe the constitution and to determine what the law is. (M’Culloch v. Maryland [1819] 4 Wheat., 316; Re Debs [1895], 158 U. S., 564.) The courts of the Philippines now possess and exercise, not recklessly but cautiously, this power of construing the Philippine Organic Law and of determining when either the legislative or the executive departments steps outside the limits fixed by law. In so doing, the courts do not usurp authority not belonging to them but merely stand between the sovereign, the people, and officials in other branches.

As heretofore stated we have the Governor-General acting in good faith in the exercise of a disagreeable duty in conformity with what is supposed to be the law. How that duty shall be performed is left to his discretion. Just as surely, however, it is the duty of the courts to determine if the Governor-General is empowered by any law to take action. In one sense the judiciary is an official adviser to the other powers. When the judiciary finds that the Legislature has put on the statute books an illegal law, it wipes that law out and puts the Legislature back into its proper sphere. When the judiciary finds that the Chief Executive has mistakenly attempted to perform an unauthorized act it will not interfere with the Executive in the performance of that act, but more correctly stated, will advise him as to whether or not he is authorized by any law to take such action. As said in the concurring opinion in the case of Forbes v. Chuoco Tiaco and Crossfield supra: "The judiciary has full power to, and will, when the matter is proper presented to it and the occasion justly warrants it, declare an act of the Governor-General illegal and void and place as nearly as possible in status quo any person who has been deprived of his liberty or his property by such act. This remedy is assured to every person, however humble or of whatever country, when his personal or property rights have been invaded, even by the highest authority of the state," The United States Supreme Court has likewise never hesitated when executive authority has been exceeded to so declare.

The Government of the Philippine Islands is essentially a Government of laws and not of men. The policy of the law is against the placing of unlimited power anywhere All officers from the highest to the lowest and in all branches of the Government are subordinate to the law. A judge equally with any official of the other departments, it has been said, is not above or beyond the law, which it is his high office to administer." (Alzua and Arnalot v. Johnson [1912], 21 Phil., 308.) "The law," Justice Miller said in U. S. v. Lee ([1882], 106 U. S., 196), "is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposed upon the exercise of the authority which it gives." Having no doubt that both the executive and the legislative departments of the Philippine Government are just as anxious as we are to maintain the supremacy of the law, and it being the peculiar duty of the courts to know the law, we must proceed in our search for those statutes which may authorize the deportation of aliens.

Before we conclude our discussion of this point, we must not forget to take cognizance of the fact that we are not asked to enjoin or command the Governor-General. The Prayer is that the supreme Court issue a writ of habeas corpus directed to the acting chief of police of the city of Manila. A slight conception of the history and principles of this writ will effectively indicate the necessity for vigorous action on the part of the courts.

The writ of habeas corpus has for centuries been esteemed the best and only sufficient defense of personal freedom. It was in use even before the days of the Magna Charta. But the English judges being under the influence of the Crown, the writ afforded no real protection to British subjects. To remedy this evil, the celebrated Habeas Corpus Act of 1679, (31 Car., II), was enacted for the purpose of securing the benefits for which the writ was given. The writ went with Englishmen to the shores of the-United States as one f their dearest possessions. From the United States it was brought to the Philippine Islands as the cornerstone of the Philippine Bill of Rights. Here the writ of habeas corpus will remain as long as democracy survives.

The writ of habeas corpus is essentially a writ of inquiry. It has often been used to defend the liberty of the citizen against the assertion of unlawful authority on the part of the executive and legislative branches of the Government. (U. S. v. Lee [1882], 106 U. S., 196, 220; Ex parte Milligan [1866], 4 Wall., 2; Kilbourn v. Thompson [1881], 103 U. S., 168; Carfer v. Caldwell [1906], 200 U. S., 293.) In the language of a great judge (Chief Justice Kent), "It is the indispensable duty of this court, and one to which every inferior consideration must be sacrificed, to act as a faithful guardian of the personal liberty of the citizen, and to give ready and effectual aid to the means provided by law for its security. Nor can we hesitate in promptly enforcing a due return to the writ when we recollect that in this country, the law knows no superior; and that in England their courts have taught us, by a series of instructive examples, to exact the strictest obedience to whatever extent the persons to whom the writ is directed may be clothed with power or exalted in rank." (Ex parte Stacy [1813], 10 Johns, 327.) The only official not subject to the writ (and this exception merely mentioned in dicta in an isolated case, In re Keeler [1843], 14 Fed. Cas., No. 7637) is the President of the United States. The provisions of the Constitution, especially those pertaining to due process of law and persona rights, protect resident aliens as well as citizens. (Yick Wo v. Hopkins [1885], 118 U. S., 356; Fong Yue Ting v. U S. [1893], 149 U. S., 698.) In short the writ of habeas corpus is "a high mandate, by means of which courts or Judges, in protection of the liberty of individuals, exercise functions appertaining to the sovereign power, and which in intendment of law rest only in the sovereign and are coextensive with his dominion." (Ex parte Burras [1890] 136 U. S., 586.)

Our law carries with it all the applicable principles of English and American cases on the subject of habeas corpus In statutory form it says that the writ shall extend to all cases of illegal detention by which any person is deprived of his liberty. (Sec. 525, Code of Civil Procedure.) Again our law says that, "if no legal cause is shown for the imprisonment or a continuation of the restraint imposed upon the person, the court or judge must discharge him from the custody or restraint under which he is held." (Sec. 89, Code of Criminal Procedure.)

We conclude that it is for the court to determine if the Governor-General has the power to expel aliens. If it be found that Governor-General does possess this power by reason of any law, then the exercise of it is an official act and beyond the interference of the courts. "Whenever a statute gives a discretionary power to any person, to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction that the statute constitutes him the sole and exclusive judge of the existence of those facts." (Per Story, J., in Martin v. Mott [1827], 12 Wheat., 19, 31.) But if it be found that there is no law authorizing the Governor-General to deport aliens, then any attempt of the Governor-General to undertake to do so would not be an official act, and it would be the resultant duty of the courts through the great writ of habeas corpus to protect the petitioner.

We have to discuss the general subject of —

THE POWER OF THE GOVERNOR-GENERAL OF THE PHILIPPINE ISLANDS TO EXPEL ALIENS THEREFROM.

Every sovereignty for social, economic, or political reasons, as protection to public safety or public order and as a police measure, has the inherent and absolute right, essential to self-preservation to expel or deport aliens. In the United States "the doctrine is firmly established that the power to exclude or expel aliens is vested in the political departments of the Government, to be regulated by treaty or by Act of Congress, and to be executed by the executive authority according to such regulations . . . . (Fok Yung Yo v. United States [1902], 185 U. S., 296. See further In re Patterson [1902], 1 Phil., 93; the Chinese Exclusion Case [1889], 130 U. S., 581; Fong Yue Ting v. United States [1892], 149 U. S., 698; 1 Oppenheim, International Law, pages 378, 382, and 4 Moore, International Law Digest, pages 71 et seq.) The authorities usually assume the primary authority as in Congress. (Wong Wing v. U. S. [1895], 163 U. S., 228; Tiaco v. Forbes [1913], 228 U. S., 549.)

The right of the Governor-General of the Philippine Islands to expel aliens, if it exists, must either be sought in the power inherent in him because of his position and the legal status of the Philippines, or in some Treaty or Act of Congress authorizing the same, or in some attribute of the Military Governor of the Philippines, which has been transmitted to the Governor-General, or in some previous law of Spain still in force in the Islands, or in some action of the Philippine Legislature sanctioning or authorizing, or in some extraordinary power brought into being by the exigencies of the present war. We proceed by process of exclusion to an analysis of these six possibilities in the order named —

1. "It is admitted" as said in Tiaco v. Forbes, supra, "that sovereign states have inherent power to deport aliens." If the Philippine Islands can be taken to be sovereign in this sense, then it has this right; otherwise the contrary is true.

The Government of the Philippine Islands is not that of either a State or a Territory of the United States, but is a complete government organism, outside the constitutional relations which unite the States and Territories into the Union. The Filipino people enjoy practical self-government. The nearest prototype is the Commonwealth of Australia.

The Act of Congress most nearly in the form of a constitution for the Philippines, the Act of August 29, 1916, popularly known as the Jones Law, provided "a more autonomous government for the Philippines." This meant that while previously the Islands had an autonomous government, they were thereafter to have one more nearly independent and more perfectly self-governing. Yet in the same Act, Congress was careful to state that "Whereas for the speady accomplishment of such purpose it is desirable to place in the hands of the people of the Philippines as large a control of their domestic affairs as can be given them without, in the meantime, impairing the exercise of the rights of sovereignty by the people of the United States, etc."cralaw virtua1aw library

Sovereignty, therefore, in so far as the Philippines is concerned still resides in the United States, i. e. the people of the United States are the depository of this ultimate sovereignty. This is the sovereignty, which for the United States and the Philippines retains the inherent right to deport aliens. Until it expresses itself through its representative, the Congress of the United States, or by other means, it must be presumed to have retained the high prerogative. While the distance of the Philippine Islands from the United States, and while the imperative necessity of taking action promptly to safeguard the interest of the Islands may constitute powerful reasons for the existence of such authority in the Governor-General, this is primarily a matter of policy to be determined by the sovereign and cannot be taken over without the permission of this sovereign. While also language can be found in the decision in Forbes v. Chuoco Tiaco and Crossfield ([1910], 16 Phil., 534) to the effect that the mere absence of legislation regulating this inherent right to deport or expel aliens is not sufficient to prevent the Chief Executive head of the Government acting in his own sphere and in accordance with his official duty, to deport or expel objectionable aliens when he deems such action necessary for the peace and domestic tranquility of the nation, this must be regarded as language not confirmed on appeal by the United States Supreme Court.

The Government of the Philippine Islands, and thus the Governor-General has no inherent right to expel aliens.

2. No treaty governing the right of the Governor-General to expel aliens is known to us.

The Congress of the United States could undoubtedly directly and constitutionally authorize the Governor-General of the Philippine Islands to expel aliens. The nearest that Congress has come to so doing has been to extend the Chinese exclusion and immigration laws and the general immigration laws to the Philippine Islands. Congress also on February 5, 1917, enacted "An Act to regulate the immigration of aliens to, and the residence of aliens in, the United States." This law provides for the deportation of aliens under certain definite conditions. It is to "be enforced in the Philippine islands by officers of the General Government thereof, unless and until it is superseded by an act passed by the Philippine Legislature and approved by the President of the United States." The only later expression of the Philippine Legislature thus approved by the President is what is found in section 69 of the Administrative Code of 1917, going into effect on October 1, 1917. The argument for petitioner as based on this Act of Congress and this provision of the Administrative Code, then is that the Act of Congress determines in precise language the causes, and the only causes, for which foreigners may be expelled from the Philippines and the Administrative Code determines the procedure. As a consequence, since the cause for which the petitioner is attempted to be deported does not fall within any of the provisions of this Act of Congress, it is ably contended that he cannot be lawfully deported. In opposition it is said that there is not a single word in the Act of Congress which even intimates that aliens may not be deported from the Philippine Islands for other reasons than those mentioned in the Act, (Tiaco v. Forbes, supra, cited.) Be this as it may, what is of moment is that neither this Act of Congress nor any other Act of Congress directly authorizes the present expulsion.

3. Acts of Congress may possibly by indirection authorize the power. As all know the Philippines on American occupation were first governed by a Military Governor. Following the Military Governor came a Civil Governor, whose title was later changed to Governor-General. The order of the President of June 21, 1901, appointing a Civil Governor is as follows:jgc:chanrobles.com.ph

"On and after the 4th day of July, 1901, until it shall be otherwise ordered, the President of the Philippine Commission will exercise the executive authority in all civil affairs in the government of the Philippine Islands heretofore exercised in such affairs by the Military Governor of the Philippines, and to that end the Hon. William H. Taft, President of the said Commission, is hereby appointed Civil Governor of the Philippine Islands. Such executive authority will be exercised under, and in conformity to, the instructions to the Philippine Commissioners, dated April 7, 1900, and subject to the approval and control of the Secretary of War of the United States. . . ."cralaw virtua1aw library

Section 1 of the Act of Congress of July 1, 1902, (Philippine Bill) is, in part, as follows:jgc:chanrobles.com.ph

"Be it enacted by the Senate and House, of Representatives of the United States of America in Congress assembled. That the action of the President of the United States in creating the Philippine Commission and authorizing said Commission to exercise the powers of government to the extent and in the manner and form and subject to the regulation and control set forth in the instructions of the President to the Philippine Commission, dated April seventh, nineteen hundred, and in creating the offices of Civil Governor and Vice-Governor of the Philippine Islands, and authorizing the said Civil Governor and Vice-Governor to exercise the powers of the government to the extent and in the manner and form set forth in the executive order dated June twenty-first, nineteen hundred and one, . . . is hereby approved, ratified, and confirmed, and until otherwise provided by law the said Islands shall continue to be governed as thereby and herein provided, . . ."cralaw virtua1aw library

Section 8 of the Act of Congress of February 6, 1905, changed the title of the Civil Governor of the Philippine Islands to that of Governor-General of the Philippine Islands.

The instructions of the President to General Merritt, dated May 19, 1898, for obvious reasons did not definitely limit the powers of the Military Governor. Therein, it was however provided: "Though the powers of the military occupant are absolute and supreme, and immediately operate upon the political condition of the inhabitants, . . ."cralaw virtua1aw library

The instructions of the President to the Philippine Commission had also only stated that "until the complete transfer of control, the military governor will remain the executive head of the government of the Islands, and will exercise the executive authority now possessed by him and not herein expressly assigned to the Commission, subject, however, to the rules and orders enacted by the Commission in the exercise of the legislative powers conferred upon them."cralaw virtua1aw library

Military power, when exercised in a territory under military occupation includes executive, judicial, and legislative authority. During belligerent occupation the power of the military commander is free from constitutional limitations on these powers. On the cessation of military operations the military commander is subject to certain rules of law of which the most important is the principle of "immediate exigency" or "necessity." (Raymond v. Thomas, 1876. 91 U. S., 712). "The authority of a military government during the period between the cession and the action of Congress, like the authority of the same government before the cession, is of large, though it may not be of unlimited extent. (Santiago v. Nogueras, [1909] 214 U. S., 260.) The treaty of peace does not affect the existence of militar government; the powers of the Military Governor continue even after war has ceased. (Cross v. Harrison, 1853. 16 How., 164, 193; Dooley v. United States, [1902], 182 U. S., 34; Magon s Reports, p. 12 et seq.) With such extraordinary powers there can be no doubt that a military commander during hostilities, or a Military Governor during military occupation, would have the right to expel undesirable foreigners.

The Spooner Amendment found in the Act of Congress of March 2, 1901, indicated more clearly the unlimited authority of the Chief Executive of the Philippines when it provided that:jgc:chanrobles.com.ph

"All military, civil, and judicial powers necessary to govern the Philippine Islands, acquired from Spain by the treaties concluded at Paris on the tenth day of December, eighteen hundred and ninety-eight, and at Washington on the seventh day of November, nineteen hundred shall, until otherwise provided by Congress, be vested in such person and persons and shall be exercised in such manner as the President of the United States shall direct, for the establishment of civil government and for maintaining and protecting the inhabitants of said islands in the free enjoyment of their liberty, property, and religion."cralaw virtua1aw library

Congress seems to have "otherwise provided," when after grave deliberation, the Government of the Philippine Islands was reorganized by the Jones Law. This law in section 21 enumerates certain powers and duties of the Governor-General. From this it is argued that while previous to the passage of the Jones Law, the Governor-General had general powers, after the enactment of the Jones Law, his powers were specific. As the power to expel aliens is not named as one of these specific powers, the deduction is then made that he possesses no such prerogative. This cannot be granted. Section 6 of the Jones Law continues in force and effect the laws in force in the Philippines except as altered, amended, or modified by the same law, until they are altered, amended, or repealed by the Philippine Legislature or by the Congress of the United States. Section 31 of the Jones Law is not worded as is the customary repealing clause but also recognizes the continuation of prior laws. There would be no absolute inconsistency between the existence of the powers granted in the Jones Law, which merely picked up certain known grants to the Governor-General and restated them and the continuation of other powers found in anterior laws and not subsequently repealed. The Governor-General appears to possess: 1. The powers enumerated in section 21 of the Jones Law; 2. The powers which the last clause of said section contemplates the President may assign or delegate to him in pursuance of law; and 3. The powers given to the Governor-General by other laws not in conflict with the Jones Law.

If this be granted, then the result is this: No law has directly conferred this power on the Governor-General or authorized the President to assign it to the Chief Executive. To exist, the power must be considered as a legacy from the Military Governor. But it does not impress one as reasonable that the power to deport aliens was transmitted from the Military Governor to the Civil Governor; or if this be resisted, that the power arising because of war existed subsequent to the Spooner Amendment after Congress had "otherwise provided" in different organic laws reconstituting the Government. It would appear preposterous to suppose that a war power free from constitutional limitations would subsist for nearly twenty years after peace has been declared and notwithstanding two or more organic laws reorganizing the Civil Government.

The right of the Military Governor of the Philippines to expel aliens from the Islands does not now exist in the Governor-General.

4. The right to expel aliens from the Philippine Islands under the Spanish regime was vested in the administrative discretion of the Governor-General. The Real Cedula of March 11, 1819, first granted this power, subject to judicial determination, in the following language:jgc:chanrobles.com.ph

"5th. With regard to foreigners who have not committed any crime and can not therefore be punished under the laws of the country whereunder they are liable by reason of the residence therein, and it becomes necessary for them to leave the country only as a police measure, after judicially showing the just motives therefor, they should be returned to their country, whenever necessary; otherwise they should be sent to the Peninsula, forwarding the papers and certificates with reference thereto. Upon arrival in the Peninsula, and if the only motive for their deportation is that their presence in the colonies was objectionable, the deported individuals shall be set at liberty and thereby enabled to return to their own country." (6 San Pedro, Legislacion Ultramarina, p. 73.)

The confidential Royal Order of April 20, 1881, provided that deportations (of foreigners) must be decreed by the Governor-General in person and not by any subordinate officer, according to the provisions of Law 19, Title 8, Book 7 of the Laws of the Indies. 1 Said law last cited is as follows:jgc:chanrobles.com.ph

"An additional provision is granted regarding governors whereby they are given power to deport from the country troublesome men, if they deem it convenient, notwithstanding an appeal. And because their lieutenants and officials attempt to exercise this power and it is not to be extended to inferior Officers, we order that it be not executed by those other than our governors in person."cralaw virtua1aw library

By Royal Order of August 2, 1888, the Governor-General’s power of expulsion was separated from the control of the Judiciary, and the expediency of the expulsions necessary for the preservation of public order and the kind and form of justification required in such cases was left to his reasonable discretion. This order as translated into English is as follows:jgc:chanrobles.com.ph

"OFFICE OF THE COLONIAL SECRETARY.

"No. 607.

"Excellency: In view of the proceedings relative to the consultation had by the Audiencia de Manila with the government, through the supreme court, the latter having rendered a report on the subject-matter thereof, which refers to deportations, the case was forwarded for report to the political division of this office, and His Majesty the King (whom may God preserve), and in his name the Queen Regent, passing upon the report, has been pleased to decide

"‘1. According to laws 18, 19, and 20, title 8, book 7; 35, title 15, book 2; 7, title 4, book 3; 61, title 3, book 3, the royal cedula of May 19, 1819, and the special royal order of April 20, 1881, Governors-General of the Philippines have power to determine the legal expediency of the deportations which they may deem necessary for the preservation of public order.

"‘2. The record in any such cause commenced by the Governor-General must be transmitted to the supreme government of the nation, in the form and manner provided by the Laws of the Indies, in order that it may take cognizance of the reasons which he may have had for ordering the deportation.

"‘3. The kind and form of justification which should appear in the record is left to the reasonable discretion of the Governor-General.

"‘4. The Governor-General may deport any person who, had he been prosecuted in the courts of justice under a criminal charge, would have been pardoned, as expressed in law 2, title 8, book 7, of the Recompilation of the Laws of the Indies.

"‘5. With respect to such persons as were tried and acquitted by the courts of justice, if the charges, the reason for the deportation, were the subject-matter of the prosecution, then, bearing in mind the sanctity of a matter which has become res adjudicata, deportation by the Governor-General is improper.

"‘6. These deportations must be decreed by the Governor General in person, and not by his tenientes and auxiliares (lieutenants and assistants), in accordance with law 19 title 8, book 7, of the Recompilation of the Indies

"‘7. The laws in force in the Philippines relative to deportations are those of the Indies before mentioned, so that the lack of a faithful and exact compliance with requisites prescribed therein for the exercise of such power constitutes the crime defined in articles 211 and 212 of the Penal Code in force in the Philippines.

"‘8. The right of appeal to the audiencias, granted by royal order of May 25, 1847, from the action taken by the Governor-General, was abolished by the decree of June 9, 1878 in force in the Philippines by another of November 28 of the same year, which provides in article 7 that orders issued by the Governor-General, in matters pertaining to government or to the exercise of his discretional powers, can only be revoked by the Supreme Government.

"The foregoing by this royal order is communicated to you for your information and the consequent effects. . . . May God preserve Your Excellency many years. . . . Madrid, August 2, 1888.

(Signed.) "RUIZ Y CAPDEPON.

"To the GOVERNOR-GENERAL OF THE PHILIPPINE ISLANDS.

"Comply with and observe the above royal order and issue to the provincial chiefs the necessary orders thereunto pertaining.

(Signed.) "WEYLER.

As late as September 12, 1897, there was published by the Spanish Government a royal decree approving certain amendments to existing legislation in the Philippine Islands Under section 4, title "Governmental Powers" (Faculfades Gubernativas), article 30, No. 2, of said decree, there is a provision regarding deportation, reading as follows:jgc:chanrobles.com.ph

"To direct such deportations as may be deemed necessary for the preservation of public order, in accordance with the provisions of the Laws of the Indies, the enforcement of which was reminded by means of the Royal Order of August 2, 1888." (Alcubilla’s Diccionario de la Administracion Española, Appendix for 1897, p. 455.)

All laws which are in force in a country or province conquered by or ceded to the United States and usually termed municipal law, other than laws political in character or laws inconsistent with the Constitution and laws of the United States or the characteristics and institutions of government, remain in force until by direct action of the Government of the United States they are altered or repealed. The basic decision is that of Mr. Chief Justice Marshall in American Insurance Co. v. Canter (1828, 1 Pet., U. S., 511,540,543) in which it was decided as to Florida, ceded by Spain to the United States, as follows:jgc:chanrobles.com.ph

"The same act which transfers their country transfers the allegiance of those who remain in it; and the law, which may be denominated political, is necessarily changed, although that which regulates the intercourse and general conduct of individuals, remains in force until altered by the newly created power of the state.

x x x

"It has been already stated, that all the laws which were in force in Florida, while a province of Spain, those excepted which were political in their character, which concerned the relations between the people and their sovereign, remained in force until altered by the Government of the United States." (See also Roa v. Collector of Customs, 1912, 23 Phil., 315.)

We entertain little or no doubt that this royal order of Spain is a law, political in character, which did not continue in force in the Philippines after American occupation. This Conclusion is self-evident when we come to go back and reanalyze the power of deportation of foreigners. As will be remembered expulsion is an arm of sovereignty which reaches out for reasons which to it are conclusive to send the foreigner out of the country. International relations political necessity, or other causes of the same delicate character are the motives. The intercourse and general conduct of citizens are not involved. This power which Spain a monarchy, saw fit to put in the hands of the representative of the Spanish Crown and which was intended for the protection of that sovereign could not by any means be considered as having continued under a republican government

No law of Spain still in force in the Philippines authorized the Governor-General to expel aliens.

5. We can assume, without deciding, that, under the authorities and the law, the Philippine Legislature would have power to enact a proper alien expulsion law. (Tiaco v. Forbes, supra.) The cases have uniformly held that an act of the legislative authority of the Philippine Government which has not been expressly disapproved by Congress is valid unless its subject matter has been covered by Congressional legislation or its enactment forbidden by some provision of the organic laws. (Gaspar v. Molina, 1905, 5 Phil 197; U. S. v. Bull, 1910, 15 Phil., 7.) The Jones Law and the Immigration Law of 1917 both permit the Philippine Legislature to take action relative to immigration of aliens with the approval of the President.

As far as we can find, section 69 of the Administrative Code alone constitutes action on this subject by the Philippine Legislature. It reads:jgc:chanrobles.com.ph

"A subject of a foreign power residing in the Philippine Islands shall not be deported, expelled, or excluded from said Islands or repatriated to his own country by the Governor-General except upon prior investigation, conducted by said Executive or his authorized agent, of the ground upon which such action is contemplated. In such case the person concerned shall be informed of the charge or charges against him and he shall be allowed not less than three days for the preparation of his defense. He shall also have the right to be heard by himself or counsel, to produce witnesses in his own behalf, and to cross-examine the opposing witnesses."cralaw virtua1aw library

We know the antecedents of this section. It originated in a law hastily passed to uphold and protect the Governor-General. This first law only related to one case. Then followed Act No. 2113 enacted prior to the decision of the United States Supreme Court in Tiaco v. Forbes on the assumption "that it has been decided that the Governor-General of the Philippine Islands has authority to deport, expel, exclude, or repatriate foreigners by due process of law," and that "there is no law at present in the Philippine Islands which determines or defines such process of law." The purpose then was, not to grant authority, which the Legislature assumed to exist, but to regulate authority. On the codification of the political laws, the Legislature naturally omitted the preamble to Act No. 2113 and merely continued with a slight change in phraseology the body of Act No. 2113 in the Administrative Codes of 1916 and 1917. In enacting the Administrative Code the intention of the Legislature could have been no different, as far as we can know, than its intention as expressed when passing Act No. 2113. The report of the appropriate committee of the Legislature on this subject, although not conclusive, can be noticed by us in order to discover legislative intention. From this report it is plain that the Legislature, as heretofore said, was under the impression that the courts had decided that the Governor-General had the power to deport aliens and that all that was incumbent upon them was to fix the procedure. "An enactment of the Legislature based on an evident misconception of what the law is will not have the effect, per se, of changing the law so as to make it accord with the misconception." (Davis v. Delpit, 1853, 25 Miss., 445. See also Van Norman v. Jackson Circuit Judge, 1881, 45 Mich., 204.)

The language of the section itself bears out this idea. The words are not a grant of power but in the negative are a regulation of a procedure. The Attorney-General, however, argues that section 69 having fixed the procedure, authority itself must be implied. "That which is plainly implied in the language of a statute is as much a part of it as that which is expressed." (Doyle v. Doyle, 1893, 50 Ohio St., 330). Because of a lack of definition the power might be unlimited. Certainly, it would be illogical to have a law regulating how a thing shall be done without a law authorizing this thing to be done. Superfluities and absurdities in the law are to be avoided, if possible. The Attorney-General invites particular attention to the decision of the United States Supreme Court in U. S. v. Midwest Oil Co., 1914, 236 U. S., 459. But in this case the Act of Congress in question gave specific future authority to the President and the validity of what the President had previously done was inferred from long continued practice acquiesced in by Congress. Unlike this situation, we have here no act granting authority, and we have no long continued practice on the part of the Governor-General.

It would seem that section 69, predicated as it is on the unfortunate assumption that the Governor-General had the power to deport aliens, was merely enacted to safeguard public interests by providing for an investigation before deportation. Individual security, to follow the phraseology of Act No. 2113, was to be attained by defining and fixing process of law. This being the situation, the courts would not be warranted in laying on of the judicial hand on a simple, little procedural section and in making this section to live as substantive law. The sovereign power of deportation of aliens, the use of which without the exercise of great caution might endanger international comity, can not be presumed or implied from vague language, but must arise from direct and unequivocal authority.

Section 69 of the Administrative Code does not authorize the Governor-General to expel aliens.

6. The only remaining possibility is that the Governor- General has acted because of the existing war. Obviously this has been the occasion for action. Yet it has not been suggested by either petitioner or respondent that the war has given the Governor-General any unusual powers which he did not possess in time of peace excepting as regards alien enemies.

We conclude that the Governor-General of the Philippine Islands does not have the power to expel aliens therefrom.

A few words relative to the authorities and the opinion is complete. Three judges of the Supreme Court of the Philippine Islands in the case of Forbes v. Chuoco Tiaco and Crossfield held that the Governor-General had the power to expel aliens. Two other judges concurred in the result but would not admit that the Governor-General had or has any power or authority to expel domiciled aliens. The United States Supreme Court affirmed this judgment, i. e., a judgment in which three judges believed the power existed and two believed that it did not. The view point of the United States Supreme Court is best understood by a quotation introducing the main question: "Therefore, the deportation is to be considered as having been ordered by the Governor-General in pursuance of a statute of the Philippine Legislature directing it, under their combined powers, and it is unnecessary to consider whether he had authority, by virtue of his office alone, as declared by the statute, or whether, if he had not, he had immunity from suit for such an official act done in good faith." Further on the court said: "It would be strange if a government so remote should be held bound to wait for the action of Congress in a matter that might touch its life unless dealt with at once and on the spot. On the contrary, we are of the opinion that it had the power as an incident of the self-determination, however, limited, given to by the United States." Again in summary it was said: "As the Bill of Rights did not stand in the way, and the implied powers of the government sanctioned by Congress permitted it, there is no reason why the statute should not have full effect." Otherwise stated, the prominent principles to be derived from this decision, are that the right to deport aliens exist in the Government of the Philippine Islands, and that the Governor-General having acted and the Legislature having confirmed said action, this was sufficient. In the case before us, however, we have present only half of this proposition; the Governor-General has acted but the Legislature has not supported his action. We think the decisions of the courts have not heretofore been conclusive but have left the question practically where it was before submission.

As to the other questions presented, there can be no doubt but what section 69 of the Administrative Code is valid; no doubt but what the petitioner is "a subject of a foreign power," and no doubt but what due process of law was followed in the investigation and in the decision of the Governor-General. What has heretofore been said makes it futile to discuss these points.

On an exhaustive consideration of argument and authorities, and on a new investigation of the questions at issue, it has finally come to be my opinion that the Supreme Court has jurisdiction of this action, and that the Governor-General of the Philippine Islands is not authorized to expel aliens therefrom. Accordingly the petitioner should be released from custody.

ADDENDUM

The motion for reconsideration has furnished An opportunity for the majority to substitute an amended and enlarged decision for the original decision and for the minority to file two additional dissenting opinions. My dissenting opinion could well be revised for it was dictated under great pressure. I do not yield to the temptation to answer statements which seem to me untenable, or to insert additional authorities or arguments, or to polish rhetoric, for let it be said that what is now a dissenting opinion was submitted to the court prior to the other decisions as a memorandum, that the authorities and some of the language made use of in this memorandum will be found in the other decisions, and that to rewrite now would tend to transform the opinion into what I fear the other opinions are becoming (and I say this without malice) in the nature of briefs in which any corroborative authority or argument to fortify the conclusion is eagerly seized upon. Nothing has been said in the majority decision or on motion for reconsideration which would cause me to change my vote. My views concerning the effect of Act No. 2757 mentioned in the motion for reconsideration are briefly set forth in a separate opinion.

Endnotes:

1. This decision is an amplified copy of that of April 3, 1918, originally rendered in this case.

1. 13 Off. Gaz., 2209.

1. 16 Phil. Rep., 366.

2. 16 Phil. Rep., 534.

3. 228 U.S., 549.

4. 31 Phil. Rep., 560.

1. (Recopilacion de Leyes de las Indias, Libro Segundo, p. 333.)

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