Villavicencio vs Lukban - A case digestG.R. No. L-14639 March 25, 1919ZACARIAS VILLAVICENCIO, ET AL. vs. JUSTO LUKBAN, ET AL.

Issue:

The writ of Habeas Corpus was filed by the petitioner, with the prayer that the respondent produce around

170 women whom Justo Lukban et, al deported to Davao. Liberty of abode was also raised versus the

power of the executive of the Municipality in deporting the women without their knowledge in his capacity

as Mayor.

Facts:

Justo Lukban as Manila City's Mayor together with Anton Hohmann, the city's Chief of Police, took

custody of about 170 women at the night of October 25 beyond the latters consent and knowledge and

thereafter were shipped to Mindanao specifically in Davao where they were signed as laborers. Said

women are inmates of the houses of prostitution situated in Gardenia Street, in the district of Sampaloc.

That when the petitioner filed for habeas corpus, the respondent moved to dismiss the case saying that

those women were already out of their jurisdiction and that , it should be filed in the city of Davao instead.

The court ruled in favor of the petitioner with the instructions;

For the respondents to have fulfilled the court's order, three optional courses were open: (1) They could

have produced the bodies of the persons according to the command of the writ; or (2) they could have

shown by affidavit that on account of sickness or infirmity those persons could not safely be brought

before the court; or (3) they could have presented affidavits to show that the parties in question or their

attorney waived the right to be present.

Held:

The court concluded the case by granting the parties aggrieved the sum of 400 pesos each, plus 100

pesos for nominal damage due to contempt of court. Reasoning further that if the chief executive of any

municipality in the Philippines could forcibly and illegally take a private citizen and place him beyond the

boundaries of the municipality, and then, when called upon to defend his official action, could calmly fold

his hands and claim that the person was under no restraint and that he, the official, had no jurisdiction

over this other municipality.

We believe the true principle should be that, if the respondent is within the jurisdiction of the court and has

it in his power to obey the order of the court and thus to undo the wrong that he has inflicted, he should be

compelled to do so. Even if the party to whom the writ is addressed has illegally parted with the custody of

a person before the application for the writ is no reason why the writ should not issue. If the mayor and

the chief of police, acting under no authority of law, could deport these women from the city of Manila to

Davao, the same officials must necessarily have the same means to return them from Davao to Manila.

The respondents, within the reach of process, may not be permitted to restrain a fellow citizen of her

liberty by forcing her to change her domicile and to avow the act with impunity in the courts, while the

person who has lost her birthright of liberty has no effective recourse. The great writ of liberty may not

thus be easily evaded.

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Municipality of San Fernando vs FirmeDate: April 8, 1991Petitioner: Municipality of San Fernando La UnionRespondents: Hon. Judge Romeo Firme, Juana Rimando Banina, Laureano Banina Jr, et al

Ponente: Medialdea

Facts: Petitioner is a municipal corporation existing under and in accordance with the laws of the Republic of the Philippines. At about 7 am of December 16, 1965, a collision occurred involving a passenger jeepney driven by Bernardo Balagot and owned by the Estate of Macario Nieveras, a gravel and sand truck driven by Jose Manandeg and owned by Tanquilino Velasquez and a dump truck of the petitioner and driven by Alfredo Bislig. Several passengers of the jeepney including Laureano Baniña Sr. died as a result of the injuries they sustained and 4 others suffered physical injuries.

Private respondents instituted an action against Nieveras and Balagot before the CFI. The defendants filed a third party complaint against petitioner and Bislig. The complaint was then amended to implead petitioner and Bislig. Petitioner raised as defense lack of cause of action, non suability of the State, prescription and negligence of the owner and driver of the jeepney.

The trial court rendered a decision ordering the petitioner and Bislig to pay the plaintiffs. The owner and driver of the jeepney were absolved from liability. Petitioner filed an MR which was dismissed for having been filed out of time.

Issue: WON the court committed grave abuse of discretion when it deferred and failed to resolve the defense of non-suability of the State amounting to lack of jurisdiction in a motion to dismiss.

Held: Yes

Ratio: In the case at bar, the judge deferred the resolution of the defense of non-suability of the State until trial. However, the judge failed to resolve such defense, proceeded with the trial and then rendered a decision against the municipality and its driver. The judge did not commit GAD when it arbitrarily failed to resolve the issue of non-suability of the State in the guise of the municipality. However, the judge acted in excess of his jurisdiction when in his decision he held the municipality liable for the quasi-delict committed by its regular employee.

The doctrine of non-suability of the State is expressly provided for in Article XVI, Section 3 of the Consti, to wit: "the State may not be sued without its consent." Express consent may be embodied in a general law or a special law. The standing consent of the State to be sued in case of money claims involving liability arising from contracts is found in Act No. 3083. A special law may be passed to enable a person to sue the government for an alleged quasi-delict. Consent is implied when the government enters into business contracts, thereby descending to the level of the other contracting party, and also when the State files a complaint, thus opening itself to a counterclaim.

Municipal corporations are agencies of the State when they are engaged in governmental functions and therefore should enjoy the sovereign immunity from suit. Nevertheless, they are subject to suit even in the performance of such functions because their charter provided that they can sue and be sued.

A distinction should first be made between suability and liability. "Suability depends on the consent of the state to be sued, liability on the applicable law and the established facts. The circumstance that a state is suable does not necessarily mean that it is liable; on the other hand, it can never be held liable if it does not first consent to be sued. Liability is not conceded by the mere fact that the state has allowed itself to be sued. When the state does waive its sovereign immunity, it is only giving the plaintiff the chance to prove, if it can, that the defendant is liable."

Anent the issue of whether or not the municipality is liable for the torts committed by its employee, the test of liability of the municipality depends on whether or not the driver, acting in behalf of the municipality, is performing governmental or proprietary functions (Torio vs. Fontanilla). According to City of Kokomo vs Loy(Indiana SC), municipal corporations exist in a dual capacity, and their functions are twofold. In one they exercise the right springing from sovereignty, and while in the performance of the duties pertaining thereto, their acts are political and governmental. Their officers and agents in such capacity, though elected or appointed by them, are nevertheless public functionaries performing a public service, and as such they are officers, agents, and servants of the state. In the other capacity the municipalities exercise a private, proprietary or corporate right, arising from their existence as legal persons and not as public agencies. Their officers and agents in the performance of such functions act in behalf of the municipalities in their corporate or individual capacity, and not for the state or sovereign power."

It has already been remarked that municipal corporations are suable because their charters grant them the competence to sue and be sued. Nevertheless, they are generally not liable for torts committed by them in the discharge of governmental functions and can be held answerable only if it can be shown that they were acting in a proprietary capacity.

In the case at bar, the driver of the dump truck of the municipality insists that "he was on his way to the Naguilian river to get a load of sand and gravel for the repair of San Fernando's municipal streets." In the absence of any evidence to the contrary, the regularity of the performance of official duty is presumed pursuant to Section 3(m) of Rule 131 of the Revised Rules of Court. Hence, We rule that the driver of the dump truck was performing duties or tasks pertaining to his office.We already stressed in the case of Palafox, et. al. vs. Province of Ilocos Norte, the District Engineer, and the Provincial Treasurer that "the construction or maintenance of roads in which the truck and the driver worked at the time of the accident are admittedly governmental activities."

After a careful examination of existing laws and jurisprudence, We arrive at the conclusion that the municipality cannot be held liable for the torts committed by its regular employee, who was then engaged in the discharge of

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governmental functions. Hence, the death of the passenger tragic and deplorable though it may be imposed on the municipality no duty to pay monetary compensation.

Republic of the PhilippinesSUPREME COURTManila

THIRD DIVISION

G.R. No. 42204 January 21, 1993

HON. RAMON J. FAROLAN, JR., in his capacity as Commissioner of Customs, Petitioner, vs. COURT OF TAX APPEALS and BAGONG BUHAY TRADING, Respondents.

ROMERO, J.:

This is a petition for review on certiorari which seeks to annul and set aside the decision of the Court of Tax Appeals dated December 27, 1974 (CTA Case No. 2490) reversing the decision of the Commissioner of Customs which affirmed the decision of the Collector of Customs. 1 virtual law library

The undisputed facts are as follows: virtual law library

On January 30, 1972, the vessel S/S "Pacific Hawk" with Registry No. 170 arrived at the Port of Manila carrying, among others, 80 bales of screen net consigned to Bagong Buhay Trading (Bagong Buhay). Said importation was declared through a customs broker under Entry No. 8651-72 as 80 bales of screen net of 500 rolls with a gross weight of 12,777 kilograms valued at $3,750.00 and classified under Tariff Heading No. 39.06-B of the Tariff and Customs Code 2 at 35% ad valorem. Since the customs examiner found the subject shipment reflective of the declaration, Bagong Buhay paid the duties and taxes due in the amount of P11,350.00 which was paid through the Bank of Asia under Official Receipt No. 042787 dated February 1, 1972. Thereafter, the customs appraiser made a return of duty.virtualawlibrary virtual law library

Acting on the strength of an information that the shipment consisted of "mosquito net" made of nylon dutiable under Tariff Heading No. 62.02 of the Tariff and Customs Code, the Office of the Collector of Customs ordered are-examination of the shipment. A report on the re-examination revealed that the shipment consisted of 80 bales of screen net, each bale containing 20 rolls or a total of 1,600 rolls. 3 Re-appraised, the shipment was valued at $37,560.00 or $10.15 per yard instead of $.075 per yard as previously declared. Furthermore, the Collector of Customs determined the subject shipment as made of synthetic (polyethylene) woven fabric classifiable under Tariff Heading No. 51.04-B at 100% ad valorem. Thus, Bagong Buhay Trading was assessed P272,600.00 as duties and taxes due on the shipment in question. 4 Since the shipment was also misdeclared as to quantity and value, the Collector of Customs forfeited the subject shipment in favor of the government.5 virtual law library

Private respondent then appealed the decision of the Collector of Customs by filing a petition for review with the Commissioner of Customs. On November 25, 1972 the Commissioner affirmed the Collector of

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Customs. 6 Private respondent moved for reconsideration but the same was denied on January 22, 1973. 7 virtual law library

From the Commissioner of Customs, private respondent elevated his case before the Court of Tax Appeals. Upon review, the Court of Tax Appeals reversed the decision of the Commissioner of Customs. It ruled that the Commissioner erred in imputing fraud upon private respondent because fraud is never presumed and thus concluded that the forfeiture of the articles in question was not in accordance with law. Moreover, the appellate court stated that the imported articles in question should be classified as "polyethylene plastic" at the rate of 35% ad valorem instead of "synthetic (polyethylene) woven fabric" at the rate of 100% ad valorem based upon the results conducted by the Bureau of Customs Laboratory. Consequently, the Court of Tax Appeals ordered the release of the said article upon payment of the corresponding duties and taxes. (C.T.A. Case No. 2490). 8 virtual law library

Thereafter, the Commissioner of Customs moved for reconsideration. On November 19, 1975, the Court of Tax Appeals denied said motion for reconsideration. 9 virtual law library

On August 20, 1976, private respondent filed a petition asking for the release of the questioned goods which this Court denied. After several motions for the early resolution of this case and for the release of goods and in view of the fact that the goods were being exposed to the natural elements, we ordered the release of the goods on June 2, 1986. Consequently, on July 26, 1986, private respondent posted a cash bond of P149,443.36 to secure the release of 64 bales 10 out of the 80 bales 11 originally delivered on January 30, 1972. Sixteen bales 12 remain missing.virtualawlibrary virtual law library

Private respondent alleges that of the 143,454 yards (64 bales) released to Bagong Buhay, only 116,950 yards were in good condition and the 26,504 yards were in bad condition. Consequently, private respondent demands that the Bureau of Customs be ordered to pay for damages for the 43,050 yards 13 it actually lost. 14 virtual law library

Hence, this petition, the issues being; a) whether or not the shipment in question is subject to forfeiture under Section 2530-M subparagraphs (3), (4) and (5) of the Tariff and Customs Code; b) whether or not the shipment in question falls under Tariff Heading No. 39.06-B (should be 39.02-B) of the Tariff and Customs Code subject to ad valorem duty of 35% instead of Tariff Heading No. 51.04-B with ad valorem of 100% and c) whether or not the Collector of Customs may be held liable for the 43,050 yards actually lost by private respondent.virtualawlibrary virtual law library

Section 2530, paragraph m, subparagraphs (3), (4) and (5) states:

Sec. 2530. Property Subject to Forfeiture Under Tariff and Customs Law. - Any vehicle, vessel or aircraft, cargo, article and other objects shall, under the following conditions be subjected to forfeiture:

xxx xxx xxx virtual law library

m. Any article sought to be imported or exported.

xxx xxx xxx

(3) On the strength of a false declaration or affidavit or affidavit executed by the owner, importer, exporter or consignee concerning the importation of such article; virtual law library

(4) On the strength of a false invoice or other document executed by the owner, importer, exporter or consignee concerning the importation or exportation of such article; and.virtualawlibrary virtual law library

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(5) Through any other practice or device contraryto law by means of which such articles was entered through a custom-house to the prejudice of government. (Emphasis supplied).

Petitioner contends that there has been a misdeclaration as to the quantity in rolls of the shipment in question, the undisputed fact being that the said shipment consisted of 1,600 rolls and not 500 rolls as declared in the import entry. We agree with the contention of the petitioner. In declaring the weight of its shipment in an import entry, through its customs broker as 12,777 kilograms when in truth and in fact the actual weight is 13,600 kilograms, an apparent misdeclaration as to the weight of the questioned goods was committed by private respondent. Had it not been for a re-examination and re-appraisal of the shipment by the Collector of Customs which yielded a difference of 823 kilograms, the government would have lost revenue derived from customs duties.virtualawlibrary virtual law library

Although it is admitted that indeed there was a misdeclaration, such violation, however, does not warrant forfeiture for such act was not committed directly by the owner, importer, exporter or consignee as set forth in Section 2530, paragraph m, subparagraph (3), and/or (4).virtualawlibrary virtual law library

In defense of its position denying the commission of misdeclaration, private respondent contends that its import entry was based solely on the shipping documents and that it had no knowledge of any flaw in the said documents at the time the entry was filed. For this reason, private respondent believes that if there was any discrepancy in the quantity of the goods as declared and as examined, such discrepancy should not be attributed to Bagong Buhay. 15 virtual law library

Private respondent's argument is persuasive. Under Section 2530, paragraph m, subparagraphs (3) and (4), the requisites for forfeiture are: (1) the wrongful making by the owner, importer, exporter or consignees of any declaration or affidavit, or the wrongful making or delivery by the same persons of any invoice, letter or paper - all touching on the importation or exportation of merchandise; and (2) that such declaration, affidavit, invoice, letter or paper is false. 16 virtual law library

In the case at bar, although it cannot be denied that private respondent caused to be prepared through its customs broker a false import entry or declaration, it cannot be charged with the wrongful making thereof because such entry or declaration merely restated faithfully the data found in the corresponding certificate of origin, 17 certificate of manager of the shipper, 18 the packing lists 19 and the bill of lading 20 which were all prepared by itssuppliers abroad. If, at all, the wrongful making or falsity of the documents above-mentioned can only be attributed to Bagong Buhay's foreign suppliers or shippers.virtualawlibrary virtual law library

With regard to the second requirement on falsity, it bears mentioning that the evidence on record, specifically, the decisions of the Collector of Customs and the Commissioner of Customs, do not reveal that the importer or consignee, Bagong Buhay Trading had any knowledge of any falsity on the subject importation.virtualawlibrary virtual law library

Since private respondent's misdeclaration can be traced directly to its foreign suppliers, Section 2530, paragraph m, subparagraphs (3) and (4) cannot find application.virtualawlibrary virtual law library

Applying subparagraph (5), fraud must be committed by an importer/consignee to evade payment of the duties due. 21 We support the stance of the Court of Tax Appeals that the Commissioner of Customs failed to show that fraud had been committed by the private respondent. The fraud contemplated by law must be actual and not constructive. It must be intentional fraud, consisting of deception willfully and deliberately done or resorted to in order to induce another to give up some right. 22 As explained earlier, the import entry was prepared on the basis of the shipping documents provided by the foreign supplier or shipper. Hence, Bagong Buhay Trading can be considered to have acted in good faith when it relied on these documents.virtualawlibrary virtual law library

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Proceeding now to the question of the correct classification of the questioned shipments, petitioner contends that the same falls under Tariff Heading No. 51.04 being a "synthetic (polyethylene) woven fabric." On the other hand, private respondent contends that these fall under Tariff Heading No. 39.06 (should be 39.02), having been found to be made of polyethylene plastic.virtualawlibrary virtual law library

Heading No. 39.02 of the Tariff and Customs Code provides:

39.02 - Polymerisation and copolymerisation products (for example, polyethylene, polytetrahaloethylene, polyisobutylene, polystyrene, polyvinyl chloride, polyvinyl acetate, polyvinyl chloroacetate and other polyvinyl derivatives, polyacrylic and polymethacrylic derivatives, coumaroneindene resins).

The principal products included in this heading are:

(1) Polymerization products of ethylene or its substitution derivatives, particularly the halogen derivatives.virtualawlibrary virtual law library

Examples of these are polyethylene, polytetrafluro-ethylene and polychlorotrifluro-ethylene. Their characteristic is that they are translucent, flexible and light in weight. They are used largely for insulating electric wire. 23 virtual law library

On the other hand, Tariff Heading No. 51.04 provides:

51.04. - Woven fabrics of man-made fibers (continuous) including woven fabrics of monofil or strip of heading No. 51.01 or 51.02.virtualawlibrary virtual law library

This heading covers woven fabrics (as described in Part [I] [C] of the General Explanatory Note on Section XI) made of yarns of continuous man-made fibers, or of monofil or strip of heading 51.01 and 51.02; it includes a very large variety of dress fabrics, linings, curtain materials, furnishing fabrics, tyre fabrics, tent fabrics, parachute fabrics, etc. 24(Emphasis supplied)

To correctly classify the subject importation, we need to refer to chemical analysis submitted before the Court of Tax Appeals. Mr. Norberto Z. Manuel, an Analytical Chemist of the Bureau of Customs and an Assistant to the Chief of the Customs Laboratory, testified that a chemical test was conducted on the sample 25 and "the result is that the attached sample submitted under Entry No. 8651 was found to be made wholly of Polyethylene plastic." 26 virtual law library

A similar result conducted by the Adamson University Testing Laboratories provides as follows:

The submitted sample, being insoluble in 10% sodium carbonate; hydrochloric acid, glacial acetic acid, toluene, acetone, formic acid, and nitric acid, does not belong to the man-made fibers, i.e., cellulosic and alginate rayons, poly (vinyl chloride), polyacrylonitrile, copolymer or polyester silicones including Dolan, Dralon, Orlin, PAN, Redon, Courtelle, etc., Tarylene, Dacron; but it is a type of plastic not possessing, the properties of the man-made fibers. 27 (Emphasis supplied)

Consequently, the Court of Tax Appeals, relying on the laboratory findings of the Bureau of Customs and Adamson University correctly classified the questioned shipment as polyethylene plastic taxable under Tariff Heading No. 39.02 instead of synthetic (polyethylene) woven fabric under Tariff Heading 51.04, to wit:

While it is true that the finding and conclusion of the Collector of Customs with respect to classification of imported articles are presumptively correct, yet as matters that require laboratory tests or analysis to arrive at the proper classification, the opinion of the Collector must yield to the finding of an expert whose opinion is based on such laboratory test or analysis unless such laboratory analysis is shown to be

6

erroneous. And this is especially so in this case where the test and analysis were made in the laboratory of the Bureau of Customs itself. It has not been shown why such laboratory finding was disregarded. There is no claim or pretense that an error was committed by the laboratory technician. Significantly, the said finding of the Chief, Customs Laboratory finds support in the "REPORT OF ANALYSIS" submitted by the Adamson University Testing Laboratories, dated September 21, 1966. 28 virtual law library

On the third issue, we opine that the Bureau of Customs cannot be held liable for actual damages that the private respondent sustained with regard to its goods. Otherwise, to permit private respondent's claim to prosper would violate the doctrine of sovereign immunity. Since it demands that the Commissioner of Customs be ordered to pay for actual damages it sustained, for which ultimately liability will fall on the government, it is obvious that this case has been converted technically into a suit against the state. 29 virtual law library

On this point, the political doctrine that "the state may not be sued without its consent," categorically applies. 30 As an unincorporated government agency without any separate juridical personality of its own, the Bureau of Customs enjoys immunity from suit. Along with the Bureau of Internal Revenue, it is invested with an inherent power of sovereignty, namely, taxation. As an agency, the Bureau of Customs performs the governmental function of collecting revenues which is definitely not a proprietary function. Thus, private respondent's claim for damages against the Commissioner of Customs must fail.virtualawlibrary virtual law library

WHEREFORE, the decision of the respondent Court of Tax Appeals is AFFIRMED. The Collector of Customs is directed to expeditiously re-compute the customs duties applying Tariff Heading 39.02 at the rate of 35% ad valorem on the 13,600 kilograms of polyethylene plastic imported by private respondent.virtualawlibrary virtual law library

SO ORDERED.

Gutierrez, Jr., Bidin, Davide, Jr. and Melo, JJ., concur.

TUESDAY, JUNE 30, 2009

Ynot vs IAC - A case Digest

Ynot vs IAC - A case Digest

RESTITUTO YNOT -petitioner; an owner of carabaos

Station Commander, Integrated National Police, Barotac Nuevo, Iloilo & the Regional Director, Bureau of Animal Industry, Region IV- respondents

Type of petition filed: PETITION FOR CERTIORARI

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ISSUE:

Whether Executive Order No. 626-A is constitutional or not.

FACTS:

Petitioner was charged of violation of EO 626 when he transported six carabaos in a pump boat from Masbate to Iloilo on January 13, 1984, when they were confiscated by the police station commander of Barotac Nuevo, Iloilo, for violation of the above measure. 1 The petitioner sued for recovery, and the Regional Trial Court of Iloilo City issued a writ of replevin upon his filing of a supersedeas bond of P12,000.00.

Petitioner raised the issue of EO’s constituitonality and filed case in the lower court. However, the court sustained the the confiscation of the carabaos and, since they could no longer be produced, ordered the confiscation of the bond. The court also declined to rule on the constitutionality of the executive order, as raised by the petitioner. Therefore, petitioner appealed the decsion to IAC with the following contentions:

1. EO is unconstitutional as confiscation is outright

2. Penalty is invalid as it is imposed without the owner's right to be heard before a competent and impartial court.

3. Measure should have not been presumed

4. Raises a challenge to the improper exercise of the legislative power by the former President.

HELD:

Petiton is GRANTED with the following justifications:

1. Right of the petitioner to question for constitutionality is valid as there’s no exigency showing to justify the exercise of this extraordinary power of the President2. Properties involved were not even inimical per se as to require their instant destrcution3. Case involved ‘roving commission’ and invalid delegation of powers and invalid exercise of police power4. Due process is violated because the owner is denied the right to be heard in his defense and was immedeiately condemned and punish

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Tuesday, July 28, 2009

Inchong vs. Hernandez 101 PHIL 155

Facts:

The congress of the phils. enacted the act which nationalizes the retail trade business, Republic Act # 1180, entitled " An act to regulate the retail business" prohibiting aliens in general to engage in retail trade in our country. Petitioners, for and in his own behalf and on behalf of other alien residents, corporations and partnerships adversely affected by the provisions of RA 1180, brought this action to obtain a judicial declaration that said act in unconstitutional.

Issue:

whether congress in enacting RA 1180 violated the UN charter, the UN declaration of human rights and the phil-chines treaty of amity.

Held:

The UN charter imposes no strict or legal obligations regarding the rights and freedom of their rights, and the declaration of human rights contains nothing more than a mere recommendation, or a common standard of achievement for all people and all nations.

The treaty of amity between phil-china guarantees equality of treatment to the chinese nationals upon the same terms as the nationals of any other country. But the nationals of china are not discriminated against because nationals of all other countries, except those of US personnel who are granted special rights by the constitution, are all prohibited from engaging in the retail trade. But even supposing the law infringes upon said treaty, the treaty is always subject to qualification or amendmentby a subsequent law and the same may never curtail or restrict the scope of the police power of the state.

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G.R. No. 47800. December 2, 1940

MAXIMO CALALANG, petitioner, vs. A. D. WILLIAMS, ET AL., respondents.Maximo Calalang in his own behalf.

The case of Calalang vs Williams is known for the elegant exposition of the definition of social justice. In this case, Justice Laurel defined social justice as “neither communism, nor despotism, nor atomism, nor anarchy” but humanization of laws and equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated.

As I browse through the entire case, I found out that there is more to this case than the definition of social justice. In fact, another important issue raised here is whether there was a valid delegation of power by the National Assembly to the Director of Public Works. Let us begin with the facts of the case.

Facts:

In pursuance of Commonwealth Act 548 which mandates the the Director of Public Works, with the approval of the Secretary of Public Works and Communications, shall promulgate the necessary rules and regulations to regulate and control the use of and traffic on such roads and streets to promote safe transit upon, and avoid obstructions on, roads and streets designated as national roads, the Director of Public Works adopted the resolution of the National Traffic Commission, prohibiting the passing of animal drawn vehicles in certain streets in Manila.

Petitioner questioned this as it constitutes an undue delegation of legislative power.

Issues:

Whether or not there is a undue delegation of legislative power?

Ruling:

There is no undue deleagation of legislative power. Commonwealth Act 548 does not confer legislative powers to the Director of Public Works. The authority conferred upon them and under which they promulgated the rules and regulations now complained of is not to determine what public policy demands but merely to carry out the legislative policy laid down by the National Assembly in said Act, to wit, “to promote safe transit upon and avoid obstructions on, roads and streets designated as national roads by acts of the National Assembly or by executive orders of the President of the Philippines” and to close them temporarily to any or all classes of traffic “whenever the condition of the road or the traffic makes such action necessary or advisable in the public convenience and interest.”

The delegated power, if at all, therefore, is not the determination of what the law shall be, but merely the ascertainment of the facts and circumstances upon which the application of said law is to be predicated.

To promulgate rules and regulations on the use of national roads and to determine when and how long a national road should be closed to traffic, in view of the condition of the road or the traffic thereon and

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the requirements of public convenience and interest, is an administrative function which cannot be directly discharged by the National Assembly.

It must depend on the discretion of some other government official to whom is confided the duty of determining whether the proper occasion exists for executing the law. But it cannot be said that the exercise of such discretion is the making of the law.

Miners Association of the Philippines vs. factoran

G.R. No. 98332 January 16, 1995

Facts :

Former President Corazon Aquino issued Executive Order Nos 211 and 279 in the exercise of her legislative powers. EO No. 211 prescribes the interim procedures in the processing and approval of applications for the exploration, development and utilization of minerals pursuant to Section 2, Article XII of the 1987 Constitution. EO No. 279 authorizes the DENR Secretary to negotiate and conclude joint-venture, co-production, or production- sharing agreements for the exploration, development, and utilization of mineral resources.

The issuance and the impeding implementation by the DENR of Administrative Order Nos. 57 which declares that all existing mining leases or agreements which were granted after the effectivity of the 1987 Constitution…shall be converted into production-sharing agreements within one (1) year from the effectivity of these guidelines.” and Administrative Order No. 82 which provides that a failure to submit Letter of Intent and Mineral Production-Sharing Agreement within 2 years from the effectivity of the Department Administrative Order No. 57 shall cause the abandonment of the mining, quarry, and sand and gravel claims, after their respective effectivity dates compelled the Miners Association of the Philippines, Inc., an organization composed of mining prospectors and claim owners and claim holders, to file the instant petition assailing their validity and constitutionality before this Court.

Issue : Are the two Department Administrative Orders valid?

Ruling :

Yes. Petitioner's insistence on the application of Presidential Decree No. 463, as amended, as the governing law on the acceptance and approval of declarations of location and all other kinds of applications for the exploration, development, and utilization of mineral resources pursuant to Executive Order No. 211, is erroneous. Presidential Decree No. 463, as amended, pertains to the old system of exploration, development and utilization of natural resources through "license, concession or lease" which, however, has been disallowed by Article XII, Section 2 of the 1987 Constitution. By virtue of the said constitutional mandate and its implementing law, Executive Order No. 279 which superseded Executive Order No. 211, the provisions dealing on "license, concession or lease" of mineral resources under Presidential Decree No. 463, as amended, and other existing mining laws are deemed repealed and, therefore, ceased to operate as the governing law. In other words, in all other areas of administration and management of mineral lands, the provisions of Presidential Decree No. 463, as amended, and other existing mining laws, still govern. Section 7 of Executive Order No. 279 provides, thus:Sec. 7. All provisions of Presidential Decree No. 463, as amended, other existing mining laws, and their

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implementing rules and regulations, or parts thereof, which are not inconsistent with the provisions of this Executive Order, shall continue in force and effect.

Well -settled is the rule, however, that regardless of the reservation clause, mining leases or agreements granted by the State, such as those granted pursuant to Executive Order No. 211 referred to this petition, are subject to alterations through a reasonable exercise of the police power of the State.Accordingly, the State, in the exercise of its police power in this regard, may not be precluded by the constitutional restriction on non-impairment of contract from altering, modifying and amending the mining leases or agreements granted under Presidential Decree No. 463, as amended, pursuant to Executive Order No. 211. Police Power, being co-extensive with the necessities of the case and the demands of public interest; extends to all the vital public needs. The passage of Executive Order No. 279 which superseded Executive Order No. 211 provided legal basis for the DENR Secretary to carry into effect the mandate of Article XII, Section 2 of the 1987 Constitution.

WHEREFORE, the petition is DISMISSED for lack of merit.

POSTED BY DEBORAH

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ERNESTO CALLADO vs. INTERNATIONAL RICE RESEARCH INSTITUTE (IRRI)

G.R. No. 106483 May 22, 1995/ ROMERO, J.:

Facts: Ernesto Callado, petitioner, was employed as a driver at the IRRI. One day while driving an IRRI vehicle on an official trip to the NAIA and back to the IRRI, petitioner figured in an accident.

Petitioner was informed of the findings of a preliminary investigation conducted by the IRRI's Human Resource Development Department Manager. In view of the findings, he was charged with:

(1) Driving an institute vehicle while on official duty under the influence of liquor;

(2) Serious misconduct consisting of failure to report to supervisors the failure of the vehicle to start because of a problem with the car battery, and

(3) Gross and habitual neglect of duties.

Petitioner submitted his answer and defenses to the charges against him. However, IRRI issued a Notice of Termination to petitioner.

Thereafter, petitioner filed a complaint before the Labor Arbiter for illegal dismissal, illegal suspension and indemnity pay with moral and exemplary damages and attorney's fees.

IRRI wrote the Labor Arbiter to inform him that the Institute enjoys immunity from legal process by virtue of Article 3 of Presidential Decree No. 1620, 5 and that it invokes such diplomatic immunity and privileges as an international organization in the instant case filed by petitioner, not having waived the same.

While admitting IRRI's defense of immunity, the Labor Arbiter, nonetheless, cited an Order issued by the Institute to the effect that "in all cases of termination, respondent IRRI waives its immunity," and, accordingly, considered the defense of immunity no longer a legal obstacle in resolving the case.

The NLRC found merit in private respondent's appeal and, finding that IRRI did not waive its immunity, ordered the aforesaid decision of the Labor Arbiter set aside and the complaint dismissed.

In this petition petitioner contends that the immunity of the IRRI as an international organization granted by Article 3 of Presidential Decree No. 1620 may not be invoked in the case at bench inasmuch

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as it waived the same by virtue of its Memorandum on "Guidelines on the handling of dismissed employees in relation to P.D. 1620."

Issue: Did the (IRRI) waive its immunity from suit in this dispute which arose from an employer-employee relationship?

Held: No.

P.D. No. 1620, Article 3 provides:

Art. 3. Immunity from Legal Process. The Institute shall enjoy immunity from any penal, civil and administrative proceedings, except insofar as that immunity has been expressly waived by the Director-General of the Institute or his authorized representatives.

The SC upholds the constitutionality of the aforequoted law. There is in this case "a categorical recognition by the Executive Branch of the Government that IRRI enjoys immunities accorded to international organizations, which determination has been held to be a political question conclusive upon the Courts in order not to embarass a political department of Government.

It is a recognized principle of international law and under our system of separation of powers that diplomatic immunity is essentially a political question and courts should refuse to look beyond a determination by the executive branch of the government, and where the plea of diplomatic immunity is recognized and affirmed by the executive branch of the government as in the case at bar, it is then the duty of the courts to accept the claim of immunity upon appropriate suggestion by the principal law officer of the government or other officer acting under his direction.

The raison d'etre for these immunities is the assurance of unimpeded performance of their functions by the agencies concerned.

The grant of immunity to IRRI is clear and unequivocal and an express waiver by its Director-General is the only way by which it may relinquish or abandon this immunity.

In cases involving dismissed employees, the Institute may waive its immunity, signifying that such waiver is discretionary on its part.

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Senate vs. Ermita , GR 169777, April 20, 2006

Senate vs. Ermita , GR 169777, April 20, 2006

FACTS: This is a petition for certiorari and prohibition proffer that the President has abused power by issuing E.O. 464 “Ensuring Observance of the Principles of Separation of Powers, Adherence to the Rule on Executive Privilege and Respect for the Rights of Public Officials Appearing in Legislative Inquiries in Aid of Legislation Under the Constitution, and for Other Purposes”. Petitioners pray for its declaration as null and void for being unconstitutional.In the exercise of its legislative power, the Senate of the Philippines, through its various Senate Committees, conducts inquiries or investigations in aid of legislation which call for, inter alia, the attendance of officials and employees of the executive department, bureaus, and offices including those employed in Government Owned and Controlled Corporations, the Armed Forces of the Philippines (AFP), and the Philippine National Police (PNP).The Committee of the Senate issued invitations to various officials of the Executive Department for them to appear as resource speakers in a public hearing on the railway project, others on the issues of massive election fraud in the Philippine elections, wire tapping, and the role of military in the so-called “Gloriagate Scandal”.Said officials were not able to attend due to lack of consent from the President as provided by E.O. 464, Section 3 which requires all the public officials enumerated in Section 2(b) to secure the consent of the President prior to appearing before either house of Congress.

ISSUE:Is Section 3 of E.O. 464, which requires all the public officials, enumerated in Section 2(b) to secure the consent of the President prior to appearing before either house of Congress, valid and constitutional?

RULING:No. The enumeration in Section 2 (b) of E.O. 464 is broad and is covered by the executive privilege. The doctrine of executive privilege is premised on the fact that certain information must, as a matter of necessity, be kept confidential in pursuit of the public interest. The privilege being, by definition, an exemption from the obligation to disclose information, in this case to Congress, the necessity must be of such high degree as to outweigh the public interest in enforcing that obligation in a particular case. Congress undoubtedly has a right to information from the executive branch whenever it is sought in aid of legislation. If the executive branch withholds such information on the ground that it is privileged, it must so assert it and state the reason therefor and why it must be respected.The infirm provisions of E.O. 464, however, allow the executive branch to evade congressional requests for information without need of clearly asserting a right to do so and/or proffering its reasons therefor. By the mere expedient of invoking said provisions, the power of Congress to conduct inquiries in aid of legislation is frustrated.

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he historic American debate on the nature and scope of executive authority, punctuated and dramatized by the renowned eighteenth-century exchange between James Madison and Alexander Hamilton, (2) and spiked in our time by sweeping assertions of unilateral presidential power in foreign affairs and warmaking, (3) and by claims of privilege, secrecy and immunity in domestic matters, (4) took center stage once more in the extraordinary case of Youngstown Sheet & Tube Co. v. Sawyer. (5) Justly celebrated in the pages of this volume, on the occasion of its 50th anniversary, for its landmark status and deserving rank in the pantheon of great cases--alongside Marbury, (6) McCulloch, (7) and Brown (8)--Youngstown has been assured of immortality in the annals of constitutional jurisprudence. The Steel Seizure Case, like the Pentagon Papers Case (9) and the Watergate Tapes Case, (10) was suffused with richly-textured historic dimensions. Moreover, it triggered high political drama and pitched conflict, generated great tides of public opinion, and plunged the Supreme Court into a white-hot cauldron of decision-making responsibility in which it faced issues of surpassing importance to the nation, including the fundamental question of the president's power, if any, to meet an emergency in the absence of statutory authorization. When measured against Youngstown, C. Herman Pritchett observed, "all other [separation of powers] cases pale into insignificance." (11) Youngstown featured the most thorough judicial exploration of presidential powers in the history of the Republic, (12) and it constituted the most significant judicial commentary in the 20th century on the limits of those powers. (13) Indeed, it represented "one of the rare occasions when the Court has rebuked a presidential act in wartime." (14) Perhaps it is best remembered, as Justice John Paul Stevens declared in Clinton v. Jones, as "the most dramatic example" of the Court's authority to review the legality of an executive action, (15) for in the end it "struck a blow for the separation of powers" and reaffirmed the principle of presidential subordination to the rule of law. (16)

It is doubtful that even the most prescient of soothsayers could have foreseen the emergence of a landmark case--a case that would eclipse all other separation of powers cases--in President Truman's announcement on April 8, 1952 that he had issued that day Executive Order No. 10340 directing Secretary of Commerce Charles Sawyer to seize the steel industry for the purpose of averting a nationwide strike, which he feared would jeopardize the United States' prosecution of its military efforts in the Korean War as well as other foreign policy and national security interests in Europe. (17) Chief Justice William H. Rehnquist, who at the time served as a clerk to Justice Robert H. Jackson, has observed that "the case had something of an O. Henry ending about it." (18) He wrote:

Using the traditional methods of predicting in advance how a court will

decide a case, the result reached by the Supreme Court of the United States

in the Steel Seizure Case was contrary to what one would have expected at

the time the lawsuit was instituted. There were good reasons, amply

supported by precedent, why the Court need never have reached the

constitutional question in the case. If the Court were to reach the

constitutional question, precedent did not dictate one answer in preference

to another. The Supreme Court consisted of nine Justices appointed by two

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Democratic Presidents, reviewing a challenge to the actions of President

Truman, himself a Democrat, who had appointed four of the nine justices.

The Supreme Court has a commendable record of eschewing partisan politics

in its decision making, but in a constitutionally uncharted area such as

this, one might have at least thought that a tie would count for the

runner, the runner being President Truman. (19)

In a national radio and television address, President Truman grounded his seizure order in the authority vested in him by "the Constitution and laws of the United States, and as President of the United States and Commander in Chief of the armed forces." (20) Despite his reference to the laws of the United States, Truman acted without statutory authority. In fact, on the very next day, Assistant Attorney General Holmes Baldridge asserted in federal court in response to the steel companies' motion for a temporary restraining order, that the seizure was based upon "the inherent executive powers of the President" (21) and not on any statute. Throughout the subsequent legal proceedings, the Administration continued to adduce what it variously referred to as the president's "emergency," "inherent," or "residual" powers. Indeed, on April 18, Truman held a press conference for members of the Society of Newspaper Editors. The New York Times ran a story on the conference in which it reported the president's response to a reporter's question:

If it is proper under your inherent powers to seize the steel mills, can

you, in your opinion, seize the newspapers and the radio stations?

Mr. Truman replied that under similar circumstances the President had to

do whatever he believed was best for the country.

The President refused to elaborate. But White House sources said the President's point was that he had power in an emergency, to take over "any portion of the business community acting to jeopardize all the people." (22)

The Administration's theory of an inherent power was rebuked by the judiciary. Federal District Court Judge David A. Pine declared the seizure invalid and stated that he found nothing in the Constitution to support the assertion of an undefined, inherent power in the presidency. (23) The Supreme Court, by a 6-3 vote, affirmed Judge Pine's ruling, and while there were five concurring opinions, Justice Hugo Black's opinion for the Court also rejected the claim of an inherent emergency power. (24)

The explanation behind Youngstown's stature is not to be found in Oliver Wendell Holmes' famous maxim that "[g]reat cases like hard cases make bad law." (25) On the contrary, the Court's repudiation of President Harry Truman's claim of an inherent power to seize the steelmills spoke volumes for its commitment to constitutionalism and the principle of the rule of law. Nor is it to be found in Professor Gerald Gunther's generally sound observation that the "lasting impact [of the Court] ultimately turns on the persuasiveness of the reasons it articulates, not on the particular result it reaches," (26) for it is nevertheless true that the celebration of Youngstown is as much a reflection of the Court's panoramic survey of presidential power as it is a function of what the Court did when it rejected President Truman's assertion of a broad emergency power. (27) Youngstown's remarkable stature, its point of distinction, lies in the Court's commitment to the principle of executive subordination to the law, for if the Court

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could and would rebuke a presidential action vigorously defended and executed in the name of national security in the context of the Korean War, which itself was part of a larger, indeed global, campaign against the Cold War menace of communism, then the Court could and should restrain unfounded claims of presidential power in somewhat more tranquil settings, as it did in New York Times v. United States and United States v. Nixon and again, later, in Clinton v. Jones. (28)

In fact, few issues in our long Anglo-American constitutional history can match the high drama, resounding importance and transcendent interest of the attempts by the judiciary to rein in executive power and subject it to the principle of the rule of law, an effort, of course, that lies at the core of constitutionalism. Indeed, the issue of the president's relationship to the law defined the Steel Seizure Case and confronted the Justices of the Supreme Court with an issue with which judges have grappled since Sir Edward Coke's bold declaration in 1608 to an outraged King James I that the King is indeed subject to the law. (29) Youngstown featured an effort by the Truman Administration to revive the Stuart conception of an emergency power of the King. In its defense of President Truman's actions, Bernard Schwartz observed, "the Government advanced arguments that had not been heard in an English-speaking court since the time of Charles I." (30) In fact, the sweeping assertions of presidential power that were adduced by Assistant Attorney General Baldridge in the courtroom of Federal District Judge Pine echoed those made on behalf of the Crown in 1642 in the famous case of the Ship Money, in which it was claimed that the King possessed an absolute prerogative to take any action he believed necessary for the welfare of the nation. (31) Consider the following exchange between Baldridge and Pine:

The Court: So you contend the Executive has unlimited power in time of

an emergency?

Mr. Baldridge: He has the power to take such action as is necessary to

meet the emergency.

The Court: If the emergency is great, it is unlimited, is it?

Mr. Baldridge: I suppose if you carry it to its logical conclusion, that

is true....

The Court: And that the Executive determines the emergencies and the

courts cannot even review whether it is an emergency.

Mr. Baldridge: That is correct.

The Administration reaffirmed its position at a later juncture in the argument:

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The Court: So, when the sovereign people adopted the Constitution, it

enumerated the powers set up in the Constitution, but limited the powers of

the Congress and limited the powers of the judiciary, but it did not limit

the powers of the Executive. Is that what you say?

Mr. Baldridge: That is the way we read Article II of the Constitution.

(32)

In the Case of Ship Money the King's judges, predictably, not only embraced the King's argument but repeated it verbatim in the body of their opinions. (33) But Judge Pine, perhaps surprisingly, (34) refused to bow before the claims of presidential prerogative power. Indeed, he held, in simple but powerful terms, that there was nothing in the Constitution to support the Administration's assertion of an undefined, inherent emergency power in the president:

Enough has been said to show the utter and complete lack of

authoritative support for defendant's position. That there may be no doubt

as to what it is, he states it unequivocally when he says in his brief that

he does "`not perceive how Article II [of the Constitution] can be read ...

so as to limit the Presidential power to meet all emergencies,' and he

claims that the finding of the emergency is `not subject to judicial

review.' To my mind this spells a form of government alien to our

Constitutional government of limited powers. I therefore find that the acts

of defendant are illegal and without authority of law." (35)

The central question raised in the proceedings--whether the president enjoyed an inherent or emergency power to seize the steel mills--triggered in the Supreme Court the most thorough and penetrating examination of presidential power to date. Indeed, it raised a question of profound importance to a nation committed to the rule of law. The delegates to the Constitutional Convention were entitled to believe that they had succeeded in subordinating the executive to the Constitution. (36) Still, there remained the problem of emergency and it confronted the principle of the rule of law with an awkward though undeniable challenge, one immortalized in the words of President Abraham Lincoln, who wrestled with the question in the clamor and conflict of the Civil War: "Are all the laws but one," he asked, "to go unexecuted, and the Government itself go to pieces lest that one be violated? Even in such a case, would not the official oath be broken if the Government should be overthrown when it was believed that disregarding the single law would tend to preserve it?" (37) If the president does in fact possess an emergency or prerogative power, which John Locke described in terms made famous, as the "[Plower to act according to discretion, for the public good, without the prescription of Law, and sometimes even against it," (38) What are its limits, if any? Does the existence of an emergency reallocate constitutional powers? As a corollary, may the president ignore or revise the Constitution? These thorny questions have long been the subject of debate among academics and practitioners. (39)

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President Truman's capacious view of the powers of presidency raised anew questions about constitutional purposes, powers, and limitations, and they invited reconsideration about judicial interpretation of presidential power. Before proceeding to a discussion of the Supreme Court's analysis of Truman's reliance on the claim of inherent executive power, let us return to the founding period. The debates in the Convention are illuminating, but so are the actions that the Framers took, as reflected in the text of the Constitution.

THE FOUNDERS AND EXECUTIVE POWER

Article II, section I of the Constitution provides: "The executive Power shall be vested in a President of the United States of America." Sections two and three enumerate presidential powers and responsibilities, including the duty that "he shall take care that the laws be faithfully executed." (40) An understanding of the Vesting Clause, long the subject of academic debate, may be gathered from debates in the Constitutional Convention and in the several state ratifying conventions. It is instructive as well to recall the understanding of the term, "executive power," on the eve of the Philadelphia Convention. The acclaimed legal historian, Julius Goebel, observed that "executive,"

as a noun ... was not then a word of art in English law--above all it was

not so in reference to the crown. It had become a word of art in American

law through its employment in various state constitutions adopted from 1776

onward ... It reflected ... the revolutionary response to the situation

precipitated by the repudiation of the royal prerogative. (41)

The use of the word "prerogative," as Robert Sciglano has demonstrated, was, among the founders, a term of derision, a political shaft intended to taint an opponent with the stench of monarchism. (42) The rejection of the use of the word "prerogative" in favor of the new and more republic-friendly noun of "executive" necessitated discussion and explanation of its scope and content.

The meager scope of authority granted to state executives is illustrated by the provisions of state constitutions. Despite intrinsic flaws and deficiencies in an omnipotent legislature under the Virginia Constitution of 1776, Thomas Jefferson noted in his 1783 "Draft of a Fundamental Constitution for Virginia": "By Executive powers, we mean no reference to the powers exercised under our former government by the Crown as of its prerogative ... We give them these powers only, which are necessary to execute the laws (and administer the government)." (43) This approach was reflected in the Virginia Plan, which Edmund Randolph introduced to the Constitutional Convention, and which provided for a "national executive ... with power to carry into execution the national laws ... [and] to appoint to offices in cases not otherwise provided for." (44) For the Framers, the phrase "executive power" was limited, as James Wilson said, "to executing the laws, and appointing officers." (45) Roger Sherman "considered the Executive magistracy as nothing more than an institution for carrying the will of the Legislature into effect." (46) Madison agreed with Wilson's definition of executive power. He thought it necessary "to fix the extent of Executive authority ... as certain powers were in their nature Executive, and must be given to that departmt [sic]," and added that "a definition of their extent would assist the judgment in determining how far they might be safely entrusted to a single officer." (47) The definition of the executive's power should be precise, thought Madison; the executive power "should be confined and defined." (48) And so it was. In a draft reported by Wilson, the phrase, "The Executive Power of the United States shall be vested in a single Person," first appeared. (49) His draft included an enumeration of the president's power to grant reprieves and pardons and to serve as commander-in-chief; it included as well the charge that "it shall be his duty to provide for the due and faithful execution of the Laws."

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(50) The report of the Committee of Detail altered the "faithful execution" phrase to "he shall take care that the laws of the United States be duly and faithfully executed." (51) This form was referred to the Committee on Style, which drafted the version that appears in the Constitution: "The executive power shall be vested in a president of the United States of America.... [H]e shall take care that the laws be faithfully executed." (52)

The debate on "executive power," to the extent that there was one, centered almost entirely on whether there should be a single or plural presidency. Edward Corwin fairly remarked: "The Records of the Constitutional Convention make it clear that the purposes of this clause were simply to settle the question whether the executive branch should be plural or single and to give the executive a title." (53) There was no challenge to the definition of executive power held by Wilson and Madison; nor was an alternative understanding advanced. And there was no argument about the scope of executive power; indeed, any latent fears were quickly allayed. For example, in response to the Randolph Plan, which provided for a "national executive" that would have "authority to execute the national laws ... and enjoy the executive rights vested in Congress by the confederation," (54) Charles Pinkney said he was "for a vigorous executive but was afraid the Executive powers of the existing Congress might extend to peace & war & which would render the Executive a Monarchy, of the worst kind, to wit an elective one." (55) John Rutledge shared his concern. He said "he was for vesting the Executive power in a single person, tho' he was not for giving him the power of war and peace." (56) Wilson sought to ease their fears; he "did not consider the Prerogatives of the British Monarch as a proper guide in defining the Executive powers. Some of these prerogatives were of a Legislative nature. Among others that of war & peace. The only powers he conceived strictly Executive were those of executing the laws, and appointing officers, not (appertaining to and) appointed by the Legislature." (57) The absence of a challenge to the Madison-Wilson-Sherman understanding of executive power, the reassurance, moreover, that executive power did not constitute a source of warmaking authority or, more generally, a foreign affairs power, and that the concept of prerogative was ill-suited to a Republic, left little to fear about the office. (58)

If it is true, as Corwin observed, that Wilson was the leader of the strong executive wing of the Convention, a remark made comprehensible perhaps by the unwillingness of any other member to espouse a conception of executive power more expansive than Wilson's stated parameters--to execute the laws and make appointments to office--what, we may ask, was the understanding of the phrase held by members of the various state ratifying conventions? In South Carolina, Charles Pinckney reported that "we have defined his powers, and bound him to such limits, as will effectually prevent his usurping authority." Similarly, Chief Justice Thomas McKean told the Pennsylvania Ratifying Convention that executive officers "have no ... authority ... beyond what is by positive grant ... delegated to them." In Virginia, Governor Randolph asked, "What are his powers? To see the laws executed. Every executive in America has that power." That view was echoed by James Iredell in North Carolina, and James Bowdoin in Massachusetts, who said the president's powers were "precisely those of the governors." (59)

And the powers of the governors were strictly limited. The Virginia Constitution of 1776, for example, stated that the governor shall "exercise the executive powers of government, according to the laws of this Commonwealth; and shall not, under any pretense, exercise any power or prerogative, by virtue of any law, statute or custom of England." (60) As we have seen, moreover, Jefferson sought in 1783 in his "Draft of a Fundamental Constitution for Virginia," to place beyond doubt that "By Executive powers, we mean no reference to the powers exercised under our former government by the Crown as of its prerogatives...." (61) In short, as Madison concluded, state executives across the land were "little more than cyphers." (62)

It is not at all surprising that the founding generation would so sharply limit the power of its executives. In colonial America, the belief was prevalent, wrote Corwin, that "the `executive magistracy' was the natural enemy, the legislative assembly the natural friend of liberty." (63) There was a deep fear of the potential for abuse of power in the hands of both hereditary and elected rulers. The colonial experience

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had laid bare the sources of despotism. "The executive power," said a Delaware Whig, "is ever restless, ambitious, and ever grasping at encrease of power." (64) Thus Madison wrote in Federalist No. 48: "The founders of our republics ... seem never for a moment to have turned their eyes from the danger to liberty from the overgrown and all-grasping prerogative of an hereditary magistrate." (65)

It was in this context, then, that the Framers designed the office of the presidency. Far from establishing an executive resembling a monarchy, the Framers, in fact, severed all roots to the royal prerogative. The Framers' rejection of the British model, grounded in their fear of executive power and their embrace of republican principles, was repeatedly stressed by defenders of the Constitution. William Davie, a delegate in Philadelphia, explained to the North Carolina Convention, that "that jealousy of executive power which has shown itself so strongly in all the American governments, would not admit" of vesting the treaty powers in the president alone, a principle reaffirmed by Hamilton in Federalist No. 75: "the history of human virtue does not warrant placing such awesome authority in one person." (66) Hamilton, in fact, was at the center of Federalist writings that attempted to allay any concerns about the creation of an embryonic monarchy. In Federalist No. 69, he conducted a detailed analysis of the enumerated powers granted to the president. In his capacity as commander in chief, for example, the president would be "first General and Admiral," (67) a post that carried with it no authority to initiate war. The president's authority to receive ambassadors, moreover, "is more a matter of dignity than of authority," an administrative function "without consequence." (68) Thus Hamilton concluded that nothing was "to be feared" from an executive "with the confined authorities of a President." (69)

The confined nature of the presidency, a conception reflected, for example, in Wilson's observation that the president is expected to execute the laws and make appointments to office, or in Sherman's remark that "he considered the Executive magistracy as nothing more than an institution for carrying the will of the Legislature into effect," represented a characterization that was never challenged throughout the Convention. (70) No delegate advanced a theory of inherent power. Madison justly remarked: "The natural province of the executive magistrate is to execute laws, as that of the legislature is to make laws. All his acts, therefore, properly executive, must presuppose the existence of the laws to be executed." (71) The proposition that the president was subject to the law constitutes the essence of the rule of law, and "[a]t the time of the Revolution and in the early days of the Republic, it was thought that republican government differed from …

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