[ G.R. No. 26979. April 01, 1927 ] 50 Phil. 259
[ G.R. No. 26979. April 01, 1927 ]
THE GOVERNMENT OF THE PHILIPPINE ISLANDS, PLAINTIFF, VS. MILTON E. SPRINGER, DALMACIO COSTAS, AND ANSELMO HILARIO, DEFENDANTS. D E C I S I O N
MALCOLM, J.:
This is an original action of quo warranto brought in the name of the Government of the Philippine Islands, against three directors of the National Coal Company who were elected to their positions by the legislative members of the committee created by Acts Nos. 2705 and 2822. The purpose of the proceeding is to test the validity of the part of section 4 of Act No. 2705, as amended by section 2 of Act No. 2822, which provides that “The voting power of all such stock (in the National Coal Company) owned by the Government of the Philippine Islands shall be vested exclusively in a committee consisting of the Governor-General, the President of the Senate, and the Speaker of the House of Representatives.” The material facts are averred in the complaint of the plaintiff and admitted in the demurrer of the defendants. The National Coal Company is a corporation organized and existing by virtue of Act No. 2705 of the Philippine Legislature as amended by Act No. 2822, and of the Corporation Law. By the terms of the charter of the corporation, the Governor-General was directed to subscribe on behalf of the Government of the Philippine Islands for at least fifty-one per cent of the capital of the corporation. The Government eventually became the owner of more than ninety-nine per cent of the thirty thousand outstanding shares of stock of the National Coal,Company, Only nineteen shares stand in the names of private individuals. On November 9, 1926, the Governor-General promulgated Executive Order No. 37. Reference was made therein to opinions of the Judge Advocate General of the United States Army and of the Acting Attorney-General of the United States wherein it was held that the provisions of the statutes passed by the Philippine Legislature creating a voting committee or board of control, and enumerating the duties and powers thereof with respect to certain corporations in which the Philippine Government. is the owner of stock, are nullities. Announcement was made that on account of the invalidity of the portions of the Acts creating the voting committee or board of control, the Governor-General would, thereafter, exercise exclusively the duties and powers theretofore assumed by the voting committee or board of control. Notice of the contents of this executive order was given to the President of the Senate and the Speaker of the House of Representatives. (24 Off. Gaz., 2419.) A special meeting of the stockholders of the National Goal Company was called for December 6, 1926, at 3 o’clock in the afternoon, for the purpose of electing directors and the transaction of such other business as might properly come before the meeting. Prior thereto, on November 29, 1926, the President of the Senate and the Speaker of the House of Representatives as members of the voting committee, requested the Governor-General to convene the committee at 2.30 p. m., on December 6, 1926, to decide upon the manner in which the stock held by the Government in the National Coal Company should be voted. The Governor-General acknowledged receipt of this communication but declined to participate in the proposed meeting. The President of the Senate and the Speaker of the House of Representatives did in fact meet at the time and place specified in their letter to the Governor-General. It was then and there resolved by them that at the special meeting of the stockholders, the votes represented by the stock of the Government in the National Coal Company, should be cast in favor of five specified persons for directors of the company. On December 6, 1926, at 3 o’clock in the afternoon, the special meeting of the stockholders of the National Coal Company was held in accordance with the call. The Governor-General, through his representative, asserted the sole power to vote the stock of the Government. The President of the Senate and the Speaker of the House of Representatives attended the meeting and filed with the secretary of the company a certified copy of the minutes of the meeting of the committee held at the office of the company a half hour before. The Governor-General, through his representative, thereupon objected to the asserted powers of the President of the Senate and the Speaker of the House of Representatives, and the latter likewise objected to the assertion of the Governor-General. The chair recognized the President of the Senate and the Speaker of the House of Representatives in their capacity as majority members of the voting committee as the persons lawfully entitled to represent and vote the Government stock. To this the representative of the Governor-General made protest and demanded that jt be entered of record in the minutes. The vote cast by the President of the Senate and the Speaker of the House of Representatives was in favor of Alberto Barretto, Milton E. Springer, Dalmacio Costas, Anselmo Hilario, and Frank B. Ingersoll. The Governor-General, through his representative, alleging representation of the Government stock, cast his vote in favor of Alberto Barretto, Romarico Agcaoili, Frank B. Ingersoll, H. L. Heath, and Salvador Lagdameo. The chair declared the ballot cast by the President of the Senate and the Speaker of the House as electing the names therein indicated, directors of the National Coal Company. Immediately after the stockholders’ meeting, the persons declared by the chairman to have been elected, met and undertook to organize the board of directors of the National Coal Company by the election of officers. All the directors for whom the President of the Senate and the Speaker of the House of Representatives voted and who were declared elected at the meeting of the stockholders participated in this meeting. Included among them, were the three defendants, Milton E. Springer, Dalmacio Costas, and Anselmo Hilario. The applicable legal doctrines are found in the Organic Law, particularly in the Organic Act, the Act of Congress of August 29, 1916, and in statutes enacted under authority of that Act, and in decisions interpretative of it. The Government of the Philippine Islands is an agency of the Congress of the United States. The powers which the Congress, the principal, has seen fit to entrust to the Philippine Government, the agent, are distributed among three coordinate departments, the executive, the legislative, and the judicial. It is true that the Organic Act contains no general distributing clause. But the principle is clearly deducible from the grant of powers. It is expressly incorporated in our Administrative Code. It has time and again been approvingly enforced by this court. No department of the Government of the Philippine Islands may legally exercise any of the powers conferred by the Organic Law upon any of the others. Again it is true that the Organic Law contains no such explicit prohibition. But it is fairly implied by the division of the Government into three departments. The effect is the same whether the prohibition is expressed or not. It has repeatedly been announced by this court that each of the branches of the Government is in the main independent of the others. The doctrine is too firmly imbedded in Philippine institutions to be debatable. (Administrative Code, sec. 17; Barcelon vs. Baker and Thompson [1905], 5 Phil., 87; U. S. vs. Bull [1910], 15 Phil.,, 7; Severino vs. Governor-General and Provincial Board of Occidental Negros [1910], 16 Phil., 366; Forbes vs. Chuoco Tiaco and Crossfield [1910], 16 Phil, 534; Province of Tarlac vs. Gale [1913], 26 Phil., 338; Concepcion vs. Paredes [1921], 42 Phil., 599; U. S. vs. Ang Tang Ho [1922], 43 Phil., 1; Abueva vs. Wood [1924], 45 Phil., 612; Alejandrino vs. Quezon [1924], 46 Phil,, 83.) It is beyond the power of any branch of the Government of the Philippine Islands to exercise its functions in any other way than that prescribed by the Organic Law or by local laws which conform to the Organic Law. The Governor-General must find his powers and duties in the fundamental law. An Act of the Philippine Legislature must comply with the grant from Congress. The jurisdiction of this court and other courts is derived from the constitutional provisions. These canons of political science have more than ordinary significance in the Philippines. To the Government of the Philippine Islands has been delegated a large degree of autonomy, and the chief exponent of that autonomy, in domestic affairs is the Philippine Legislature. The Governor-General on the other hand is the head of the Government and symbolizes American sovereignty. That under such a political system, lines of demarcation between the legislative and the executive departments are difficult to fix, and that attempted encroachments of one on the other may occur, should not dissuade the Supreme Court, as the guardian of the constitution, from enforcing fundamental principles. The Organic Act vests “the supreme executive power” in the Governor-General of the Philippine Islands. In addition to specified functions, he is given “general supervision and control of all the departments and bureaus of the government of the Philippine Islands as far as is not inconsistent with the provisions of this Act.” He is also made “responsible for the faithful execution of the laws of the Philippine Islands and of the United States operative within the Philippine Islands.” The authority of the Governor-General is made secure by the important proviso “that all executive functions of Government must be directly under the Governor-General or within one of the executive departments under the supervision and control of the Governor-General.” (Organic Act, sees. 21, 22.) By the Administrative Code, “the Governor-General, as Chief Executive of the Islands, is charged with the executive control of the Philippine Government, to be exercised in person or through the Secretaries of Departments, or other proper agency, according to law.” (Sec. 58.) The Organic Act grants general legislative power except as otherwise provided therein to the Philippine Legislature. (Organic Act, sees. 8, 12.) Even before the approval of the existing Organic Act, it was held that the Philippine Legislature has practically the same powers in the Philippine Islands within the sphere in which it may operate as the Congress of the United States. (Chanco vs. Imperial [1916], 34 Phil, 329.) The rule judicially stated is now that an Act of the Philippine-Legislature which has not been expressly disapproved by Congress is valid, unless the subject matter has been covered by Congressional legislation, or its enactment forbidden by some provision of the Organic Law. The legislative power of the Philippine Government is granted in general terms subject to specific limitations. (Gaspar vs. Molina [1905], 5 Phil., 197; U. S. vs. Bull, supra; In re Guariña [1913], 24 Phil., 37; U. S. vs. Limsiongco [1920], 41 Phil., 94; Concepcion vs. Paredes, supra.) An independent judiciary completes the governmental system. The judicial power is conferred on the Supreme Court, Courts of First Instance, and inferior courts. (Organic Act, sec, 26.) It is axiomatic that the Philippine Legislature was provided to make the law, the office of the Governor-General to execute the law, and the judiciary to construe the law. What is a legislative, an executive, or a judicial act, as distinguished one from the other, is not always easy to ascertain. A precise classification is difficult. Negatively speaking, it has been well said that “The legislature has no authority to execute or construe the law, the executive has no authority to make or construe the law, and the judiciary has no power to make or execute the law.” (U.S. vs. Ang Tang Ho, supra.) It is legislative power which has been vested in the Philippine Legislature. What is legislative power? Judge Cooley says he understands it “to be the authority, under the constitution, to make laws, and to alter and repeal them.” Those matters which the constitution specifically confides to the executive “the legislature cannot directly or indirectly take from his control.” (Cooley’s Constitutional Limitations, 7th ed., pp. 126-131, 157-162.) President Wilson in his authoritative work, “The State,” page 487, emphasizes by italics that legislatures “are law making bodies acting within the gifts of charters, and are by these charters in most cases very strictly circumscribed in their action.” If this is true, the converse that legislative power is not executive or judicial or governmental power needs no demonstration. The Legislature cannot lawfully exercise powers which are in their nature essentially executive or judicial. The Legislature cannot make a law and then take part in its execution or construction. So the Philippine Legislature is not a partaker in either executive or judicial power, except as the Philippine Senate participates in the executive power1 through having the right to confirm or reject nominations made by the Governor-General, and except as the Legislature participates in the judicial power through being made the sole judge of the elections, returns, and qualifications of its elective members and through having the right to try its own members for disorderly behavior. The Philippine Legislature may nevertheless exercise such auxiliary powers as are necessary and appropriate to its independence and to make its express powers effective. (McGrain vs. Daugherty [1927], 273 U. S., 135; 71 Law. ed.,580.) When one enters on a study of the abstract question, Where does the power to appoint to public office reside?, one is nearly buried in a mass of conflicting authority. Yet we have been at pains to review all of the cases cited by counsel and others which have not been cited. Shaking ourselves loose from the encumbering details of the decisions, we discern through them a few elemental truths which distinguish certain cases from others and which point the way for us in the Philippines. The first principle which is noticed is that the particular wording of the constitution involved, and its correct interpretation predetermines the result. Does the constitution deny the legislative body the right of exercising the appointing power.. The legislature may not do so. (State vs. Kennon [1857], 7 0. St., 547; Clark vs. Stanley [1872], 66 N. C, 28.) Does the constitution confer upon the governor the power to appoint certain officers and upon the legislature the power to prescribe the manner of appointment. The authorities are in conflict as to whether the legislature may itself make the appointment. Does the constitution merely contain the usual clause distributing the powers of government and no clause regulating appointments. The weight of judicial opinion seems to be that the power of appointing to office is not exclusively an executive function and that the legislature may not only create offices but may also fill them itself, but with a vigorous opposition in most respectable quarters. (Contrast Pratt vs. Breckinridge [1901], 112 Ky., 1, and State vs. Washburn [1901], 167 Mo., 680, with People vs. Freeman [1889], 80 Cal., 233, and Richardson vs. Young [1909], 122 Tenn., 471.) The second thought running through the decisions is that in the state governments, the selection of persons to perform the functions of government is primarily a prerogative of the people. The general power to appoint officers is not inherent in any branch of the government. The people may exercise their political rights directly or by delegation. Should the people grant the exclusive right of appointment to the governor, he possesses that right; but if they should otherwise dispose of it, it must be performed as the sovereign has indicated. Inasmuch, however, as the legislative body is the repository of plenary power, except as otherwise restricted, and the chief executive of the State is not, legislative bodies usually possess wide latitude in the premises. But this situation does not obtain in the Philippines where the people are not sovereign, and where constitutional rights do not flow from them but are granted by delegation from Congress. It may finally be inferred from the books that the appointment of public officials is generally looked upon as properly an executive function. The power of appointment can hardly be considered a legislative power. Appointments may be made by the Legislature or the courts, but when so made should be taken as an incident to the discharge of functions properly within their respective spheres. (State vs. Brill [1907], 100 Minn., 499; Stockman vs. Leddy |[1912], 55 Colo., 24; Spartanburg County vs. Miller [1924], 132 S. E., 673; Mechem on Public Officers, sees. 103-108; Mechem, The Power to Appoint to Office; Its Location and Limits, 1 Mich. Law Rev. [1903], 531.) From the viewpoint of one outside looking in, it would seem that the State legislatures have all too often been permitted to emasculate the powers properly belonging to the executive department, and that the governor of the State has been placed with the responsibility of administering the government without the means of doing so. The operations of the executive department have been fundamentally varied by the legislative department. The legislature has absorbed strength, the executive has lost it. This tendency has rather been tolerated than acquiesced in. The executive should be clothed with sufficient power to administer efficiently the affairs of state. He should have complete control of the instrumentalities through whom his responsibility is discharged. It is still true, as said by Hamilton, that “A feeble executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be in practice a bad government.” The mistakes of State governments need not be repeated here. The history of the power of appointment and the stand taken by the judiciary on the question in the State of Kentucky is of more’ than ordinary interest. Kentucky was permitted to become an independent State by Virginia. The clause in the Kentucky constitution separating and guarding the powers of government came from the pen of the author of the Declaration of Independence, Thomas Jefferson. He it was who, in a letter to Samuel Kercheval, dated July 16, 1816, said: “Nomination to office is an executive function. To give it to the legislature, as we do in Virginia, is a violation of the principle of the separation of powers. It swerves the members from correctness by temptation to intrigue for office for themselves, and to a corrupt barter for votes, and destroys responsibility by dividing it among a multitude.” Possibly inspired to such action by the authorship of the .portion of the State constitution which was under consideration, in the early days of the Supreme Court of Kentucky, Mr. Chief Justice Robertson in the case of Taylor vs. Commonwealth ([1830], 3 J. J. Marshall, 401) announced that “Appointments to office are intrinsically executive,” but that it might be performed by a judicial officer when the duties of the office pertains strictly to the court. This opinion was shaken in the case of Sinking Fund Commissioners vs. George ([1898], 104 Ky., 260) only to be afterwards reaffirmed in Pratt vs. Breckinridge ([1901], 112 Ky., l), and in Sibert vs. Garrett ([1922], 246 S. W., 455). In the decision in the latter case, one of the most recent on the subject, the Supreme Court of Kentucky after reviewing the authorities refused to be frightened by the bugaboo that numerically a greater number of courts take a contrary view. It said: “We are convinced that they by doing so are inviting destruction of the constitutional barriers separating the departments of government, and that our interpretation is much the sounder one and is essential to the future preservation of our constitutional form of government as originally intended by the forefathers who conceived it. * * * Such power (of appointment) on the part of the Legislature, if a full exercise of it should be persisted in, would enable it to gradually absorb to itself the patronage and control of the greater part of the functioning agencies of the state and county governments, and, thus endowed, it would be little short of a legislative oligarchy.” It is of importance, therefore, not to be confused by State decisions, and invariably to return to the exact provisions of the Philippine Organic Law. It is the intention of the authors of that Law which should be searched out and effectuated. The right to appoint to office has been confided, with certain well defined exceptions, by the Government of the United States to the executive branch of the government which it has set up in the Philippines. Let the Organic Law speak upon this proposition. The original government inaugurated in the Philippines after American occupation was military in nature, and exercised all the powers of government, including, of course, the right to select officers. The original civil authority with administrative functions established here was the second Philippine Commission. President McKinley, in his Instructions to the Commission of April 7, 1900, ever since considered as the initial step taken to introduce a constitutional government, provided that until further action should be taken by Congress or otherwise, “The Commission will also have power * * * to appoint to office such officers under the judicial, educational, and civil-service systems, and in the municipal and departmental governments, as shall be provided for.” When the first Civil Governor was appointed on June 21, 1901, the President again took account of the power of appointment in the following language : “The power to appoint civil officers, heretofore vested in the Philippine Commission, or in the Military Governor, will be exercised by the Civil Governor with the advice and consent of the Commission.” The Congress when it came to make legislative provision for the administration of the affairs of civil government in the Philippine Islands, in the Act of Congress of July 1, 1902, the Philippine Bill, “approved, ratified, and confirmed,” the action of the President in creating the Philippine Commission in the manner and form set forth in the Instructions of the President, and in creating the office of Civil Governor and authorizing said Civil Governor to exercise the powers of government to the extent and in the manner set forth in the executive order dated June 21, 1901. (Philippine Bill, sec. 1.) Congress in the same law provided that the Islands “shall continue to be governed as thereby and herein provided.” (See Opinion of Attorney-General Araneta on the power of the Governor-General to appoint and remove civil officers, 3 Op. Atty.-Gen., 563.) Thus stood the right to appoint to office for fourteen years. The Organic Act of August 29, 1916, included what follows on the subject of appointments. The Governor-General “shall, unless otherwise herein provided, appoint, by and with the consent of the Philippine Senate, such officers as may now be appointed by the Governor-General, or such as he is authorized by this Act to appoint, or whom he may hereafter be authorized by law to appoint,” (Organic Act, sec. 21.) The exception to the general grant is that the Philippine Legislature “shall provide for the appointment and removal of the heads of the executive departments by the Governor-General.” (Organic Act, sec. 22.) Each House of the Philippine Legislature may also select a presiding officer, a clerk, a sergeant at arms, and such other officers and assistants as may be required. (Organic Act, sec. 18.) The Philippine Legislature is authorized to choose two Resident Commissioners to the United States. (Organic Act, see. 20.) The prohibition on the local Legislature, which has been thought of. as referring to the Resident Commissioners, is that “No Senator or Representative shall, during the time for which he may have been elected, be eligible to any office the election to which is vested in the Legislature, nor shall be appointed to any office of trust or profit which shall have been created or the emoluments of which shall have ,been increased during such term.” (Organic Act, sec. 18.) The Administrative Code provides the following: “In addition to his general supervisory authority, the Governor-General shall have such specific powers and duties as are expressly conferred or imposed on him by law and also, in particular, the powers and duties set forth,” including the special powers and duties “(a) To nominate and appoint officials, conformably to law, to positions in the service of the Government of the Philippine Islands. (b) To remove officials from office conformably to law and to declare vacant the offices held by such removed officials. For disloyalty to the Government of the United States, the Governor-General may at any time remove a person from any position of trust or authority under the Government of the Philippine Islands.” (Sec. 64 [a], [b],) The Administrative Code lists the officers appointable by the Governor-General. (Sec. 66.) It will be noticed that the Governor-General, in addition to being empowered to appoint the officers authorized by the Organic Act and officers whom thereafter he might be authorized to appoint, was to continue to possess the power to appoint such officers as could be appointed by him when the Organic Act was approved. The careful phraseology of the law and the connection provided by the word “now” with prior Organic laws is noteworthy. It would not be at all illogical to apply the same rule to the Governor-General in his relations with the Legislature which the judiciary uniformly applies to the courts in their relations with the Legislature, which is, that the Legislature may add to, but may not diminish, the jurisdiction of the courts—The Legislature may add to, but may not diminish, the power of the Governor-General. (Organic Act, sec. 26; Barrameda vs. Moir [1913], 25 Phil., 44; In re Guarina, supra; U. S. vs. Limsiongco, supra.) It will also not escape attention that the only reference made to appointments by the Legislature relates to the selection of Secretaries of Departments, of officers and employees for the Legislature, and of Resident Commissioners, from which it would naturally be inferred that no other officers and employees may be chosen by it. The exceptions made in favor of the Legislature strengthen rather than weaken the grant to the executive. The specific mention of the authority of the Legislature to name certain officers is indicative of a purpose to limit the legislative authority in the matter of selecting officers. The expression of one thing in a constitution is necessarily the exclusion of things not expressed. Had it been intended to give to the Philippine Legislature the power to name individuals to fill the offices which it has created, the grant would have been included among the legislative powers and not among the executive powers. The administrative control of the Government of the Philippine Islands by the Governor-General to whom is confided the responsibility of executing the laws excludes the idea of legislative control of administration. Possibly, the situation may better be visualized by approaching the question by a process of elimination. Is the power of appointment judicial? No one so contends. Is the power of appointment legislative? Not so if the intention of the Organic Law be carried out and if the Legislature be confined to its law-making function. Is the power of appointment executive? It is. The exact question of where the power of appointment to office is lodged has never heretofore arisen in this jurisdiction. But a decision of this court and a controlling decision of the United States Supreme Court are in point. In Concepcion vs. Paredes, supra, this court had before it a law which attempted to require a drawing of lots for judicial positions in derogation of executive power. The case was exhaustively argued and after prolonged consideration, the questioned portion of the law was held invalid as in violation of the’ provisions of the Organic Act. Following the lead of Kentucky, it was announced that “Appointment to office is intrinsically an executive act involving the exercise of discretion.” In the case of Myers vs. United States ([1926], 272 U. S., 52; 71 Law1, ed., 160), the United States Supreme Court had presented the question whether, under the Constitution, the President has the exclusive power of removing executive officers of the United States whom he has appointed by and with the advice and consent of the Senate. The answer was that he has. The decision is epochal. The Chief Justice quoted from Madison the following:
" ‘If there is a principle in our Constitution, indeed in any free Constitution more sacred than another, it is that which separates the legislative, executive and judicial powers. If there is any point in which the. separation of the legislative and executive powers ought to be maintained with great caution, it is that which relates to officers and offices. " ‘The powers relative to offices are partly legislative and partly executive. The legislature creates the office, defines the powers, limits its duration and annexes a compensation. This done, the legislative power ceases. They ought to have nothing to do with designating the man to fill the office. That I conceive to be of an executive nature. Although it be qualified in the Constitution, I would not extend or strain that qualification beyond the limits precisely fixed for it. We ought always to consider the Constitution with an eye to the principles upon which it was founded. In this point of view, we shall readily conclude that if the legislature determines the powers, the honors, and emoluments of an office, we should be insecure if they were to designate the officer also. The nature of things restrains and confines the legislative and executive authorities in this respect; and hence it is that the Constitution stipulates for the independence of each branch of the Government’" (1 Annals of Congress, 581, 582. Also see Madison in The Federalist, Nos. 47, 76.) The distinguished Chief Justice said: ‘* * * The constitution was so framed as to vest in the Congress all legislative powers therein granted, to vest in the President the executive power, and to vest in one Supreme Court and such inferior courts as Congress might establish, the judicial power. From this division on principle, the reasonable construction of the Constitution must be that the branches should be kept separate in all cases in which they were not expressly blended, and the Constitution should be expounded to blend them no more than it affirmatively requires. Madison, 1 Annals of Congress, 497.
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“The vesting of the executive power in the President was essentially a grant of the power to execute the laws. But the President alone and unaided could not execute the laws. He must execute them by the assistance of subordinates. This view has since been repeatedly affirmed by this court. * * * As he is charged specifically to take care that they be faithfully executed, the reasonable implication, even in the absence of express words, was that as part of his executive power he should select those who were to act for him under his direction in the execution of the laws. The further- implication must be, in the absence of any express limitation respecting removals, that as his selection of administrative officers is essential to the execution of the laws by him, so must be his power of removing those for whom he cannot continue to be responsible. (Fisher Ames, 1 Annals of Congress, 474.) It was urged that the natural meaning of the term ’executive power’ granted the President included the appointment and removal of executive subordinates. If such appointments and removals were not an exercise of the executive power, what were they? They certainly were not the exercise of legislative or judicial power in government as usually understood. “It is quite true that in state and colonial governments at the time of the Constitutional Convention, power to make appointments and removals had sometimes been lodged in the legislatures or in the courts, but such a disposition of it was really vesting part of the executive power in another branch of the government.
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“We come now to a period in the history of the Government when both Houses of Congress attempted to reverse this constitutional construction and to subject the power of removing executive officers appointed by the President and confirmed by the Senate to the control of the Senate, indeed finally to the assumed power in Congress to place the removal of such officers anywhere in the Government.
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“The extreme provisions of all this legislation were a full justification for the considerations so strongly advanced by Mr. Madison and his associates in the First Congress, for insisting that the power of removal of executive officers by the President alone was essential in the division of powers between the executive and the legislative bodies. It exhibited in a clear degree the paralysis to which a partisan Senate and Congress could subject the executive arm and destroy the principle of executive responsibility, and separation of the powers sought for by the framers of our Government, if the President had no power of removal save by consent of the Senate. It was an attempt to redistribute the powers and minimize those of the President.
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“For the reasons given, we must therefore hold that the provision of the law of 1876 by which the unrestricted power of removal of first class postmasters is denied to the President is in violation of the Constitution and invalid.” Membership in the Committee created by Acts Nos. 2705 and 2822 is an office. No attempt will be made to accomplish the impossible, which is to formulate an exact judicial definition of the term “office.” The point is that the positions in question constitute an “office,” whether within the meaning of that word as used in the Code of Civil Procedure under the topic “Usurpation of Office,” and in the jurisprudence of Ohio from which these portions of the Code were taken; whether within the local definitions of “office” found in the Administrative Code and the Penal Code; or whether within the constitutional definitions approved by the United States Supreme Court. (Code of Civil Procedure,’ sees. 197 et seq., 519; Act No. 136, sec. 17; State vs. Kennon, supra, cited approvingly in Sheboygan Co. vs. Parker [1865], 3 Wall., 93; Administrative Code, sec. 2; Penal Code, arts. 264, 401.) Paraphrasing the United States Supreme Court in a late decision, there is not lacking the essential elements of a public station, permanent in character, created by law, whose incidents and duties were prescribed by law. (Metcalf & Eddy vs. Mitchell [1926], 269 U. S., 514; U. S. vs. Maurice [1823], 2 Brock., 96; U. S. vs. Hartwel [1867], 6 Wall., 385.) The Legislature did more than add incidental or occasional duties to existing executive offices for two of the members of the voting committee are representatives of the legislative branch. The Supreme Court of North Carolina has held that the Act of the General Assembly giving to the President of the Senate and the Speaker of the House of Representatives the power to appoint proxies and directors in all corporations in which the State has an interest, creates a public office and fills the same by appointment of the Legislature. (Clark vs. Stanley [1872], 66 N. C, 28; Howerton vs. Tate [1873], 68 N. C, 498; Shoemaker vs. U. S. [1892], 147 U. S., 282; Advisory Opinion to Governor [1905], 49 Fla., 269; Mechem on Public Officers, Ch. I.)
To tell the truth, it is possible that the earnestness of counsel has just led us to decide too much. Not for a moment should there be dismissed from our minds the unusual and potently effective proviso of section 22 of the Organic Act, “That all executive functions of the government must be directly under the Governor-General or within one of the executive departments under the supervision and control of the Governor-General.” At the very least, the performance of duties appurtenant to membership in the voting committee is an executive function of the Government, which the Organic Act requires must be subject to the unhampered control of the Governor-General. The administrative domination of a governmentally organized and controlled corporation is clearly not a duty germane to the law-making power. The incorporation of the National Coal Company has not served to disconnect the Company or the stock which the Government owns in it from the Government and executive control. The Philippine Legislature is empowered to create and control private corporations. (Martinez vs. La Asociacion de Senoras Damas del Santo Asilo de Ponce [1909], 213 U. S., 20.) The National Coal Company is a private corporation. (National Coal Company vs. Collector of Internal Revenue [1924], 46 Phil., 583.) By becoming a stockholder in the National Coal Company, the Government divested. itself of its sovereign character so far as respects the transactions of the corporation. (Bank of the U. S. vs. Planters’ Bank of Georgia [1824], 9 Wheat., 904.) Unlike the Government, the corporation may be sued without its consent, and is subject to taxation. Yet the National Coal Company remains an agency or instrumentality of government. Mr. Chief Justice Marshall in speaking of the Bank of the United States said, “It was not created for its own sake, or for private purposes. It has never been supposed that Congress could create such a corporation.” (Osborn vs. Bank of the U. S. [1824], 9 Wheat., 738; National Bank vs. Commonwealth [1869], 9 Wall., 353; Railroad Co. vs. Peniston [1873], 18 Wall., 5; Chesapeake & Delaware Canal Co. vs. U. S. [1918], 250 U. S., 123.) Of the National Coal Company, it has been said by Mr. Justice Johnson as the organ of the court in National Coal Company vs. Collector of Internal Revenue, supra, that “The Government of the Philippine Islands is made the majority stockholder, evidently in order to insure proper governmental supervision and control, and thus to place the Government in a position to render all possible encouragement, assistance and help in the prosecution and furtherance of the company’s business.” The analogy is closer in the companion National Bank case, No. 27225. It further is incontrovertible that the Government, like any other stockholder, is justified in intervening in the transactions in the corporation, and in protecting its property rights in the corporation. Public funds were appropriated to create the National Coal Company. Those funds were used to purchase stock. The voting of the government stock is the prerogative of the stockholder, not the prerogative of the corporation. It is a transaction in, but not of, the corporation. The stock is property. The Government, the owner of the majority stock in the company, naturally dominates the management of its property. The Government may enforce its policies and secure relief in and through the corporation and as a stockholder. The situation will be better understood if it be recalled that, in addition to the National Coal Company (Acts Nos. 2705 and 2822), the Philippine Legislature has created the Philippine National Bank (Acts Nos. 2612, 2747, 2938, and 3174), the National Petroleum Company (Act No. 2814), the National Development Company (Act No. 2849), the National Cement Company (Act No. 2855), and the National Iron Company (Act No. 2862). The aggregate authorized capital stock of these companies is P54,500,000. The Legislature has in each of these instances directed that a majority of the shares of stock shall be purchased for the Government, and has appropriated money for this purpose. There have likewise been authorized corporations for the promotion of the merchant marine (Act No. 2754). The stock of the Manila Railroad Company has been purchased for the Government. (Acts Nos. 2574, 2752, and 2923.) All these are conspicuous instances of a paternally inclined government investing large sums in business enterprises which after acquisition or organization have vitally concerned the Government. In all of the companies mentioned, the stock is to be voted by a committee or board of control, consisting of the Governor-General, the President of the Senate, and the Speaker of the House of Representatives. The power of the majority stockholders to vote the government stock in the corporation carries with it the right, under our Corporation Law, to elect all the directors, to remove any or all of them, and to dissolve the corporation by voluntary proceedings. (Corporation Law, sees. 31, 34, 62.) In the case of the Philippine National Bank, the law explicitly enumerates various functions of the bank which may not be performed without the express approval of the Board of Control. (Act No. 2938.) Very important property rights are involved in the transactions in the governmentally directed corporations. Just as surely as the duty of caring for government property is neither judicial nor legislative in character is it as surely executive. Yet a majority of the voting committee or board of control is made up of the presiding officers of the two houses of the Legislature and they are in a position to dictate action to the directors and subordinate personnel of these corporations. Based on all the foregoing considerations, we deduce that the power of appointment in the Philippines appertains, with minor exceptions, to the executive department; that membership in the voting committee in question is an office or executive function; that the National Coal Company and similar corporations are instrumentalities of the government; that the duty to look after government agencies and government property belongs to the executive department; and that the placing of members of the Philippine Legislature on the voting committee constitutes an invasion by the Legislative Department of the privileges of the Executive Department. Under a system of government of delegated powers, under which delegation legislative power vests in the Philippine Legislature and executive power vests in the Governor-General, and under which delegation a general power of appointment resides in the Governor-General and a specified power of appointment resides in the Philippine Legislature, the latter cannot directly or indirectly, perform functions of an executive nature through the designation of its presiding officers as majority members of a body which has executive functions. That is the meaning we gather from the tri-partite theory of the division of powers. That is the purport of the provisions of the Organic Law. That has been the decided trend of persuasive judicial opinion. The intimation contained in the conclusions just reached does not necessarily mean that the plaintiff will be privileged to substitute the directors designated by the Governor-General for those designated by the two presiding officers in the Legislature. The burden has heretofore been on the defendants. From this point, it will be on the plaintiff. It is well established in quo warranto proceedings that the failure of the defendant to prove his title does not establish that of the plaintiff. (People vs. Thacher [1874], 10 N. Y., 525.) The answer to the problem comes from two directions. The Acting Attorney-General of the United States finds the solution in the supreme executive power entrusted to ¦the Governor-General, while counsel for the plaintiff advance the rule of statutory construction pertaining to partial invalidity. We are frank to say that we experience difficulty in following the lead of the law officer of the Government of the United States. The Governor-General since the approval of the last Organic Act has had no prerogative powers. His powers are so clearly and distinctly stated that there ought to be no doubt as to what they are. Like the Legislature and the judiciary, like the most inconspicuous employee, the Governor-General must find warrant for his every act in the law. At this stage of political development in the Philippines, no vague residuum of power should be left to lurk in any of the provisions of the Organic Law. Counsel for the plaintiff rely on a decision of this court (U. S. vs. Rodriguez [1918], 38 Phil., 759) as best expressing the local rule regarding statutes void in part. Counsel for the defendants cite an earlier case (Barrameda vs. Moir [1913], 25 Phil., 44). As the principle announced in the last cited case is the more comprehensive and is much fairer to the defendants, we give it preference. It was there announced:
“Where part of a statute is void, as repugnant to the Organic Law, while another part is valid, the valid portion, if separable from the invalid, may stand and be enforced. But in order to do this, the valid portion must be so far independent of the invalid portion that it is fair to presume that the Legislature would have enacted it by itself if they had supposed that they could not constitutionally enact the other. Enough must remain to make a complete, intelligible, and valid statute, which carries out the legislative intent. The void provisions must be eliminated without causing results affecting the main purpose of the Act in a manner contrary to the intention of the Legislature. The language used in the invalid part of a statute can have no legal force or efficacy for any purpose whatever, and what remains must express the legislative will independently of the void part, since the court has no power to legislate.”
Omitting reference to the President of the Senate and the Speaker of the House of Representatives in section 4 of Act No. 2705, as amended by section 2 of Act No. 2822, it would then read: “The voting power of all such stock owned by the Government of the Philippine Islands shall be vested exclusively in a committee consisting of the Governor-General.” Would the court be justified in so enforcing the law without itself intruding on the legislative field? The Philippine Legislature, as we have seen, is authorized to create corporations and offices. The Legislature has lawfully provided for a National Coal Company and a committee to vote the government stock in that company, but has unlawfully provided for two of its members to sit in the committee. Would this court be doing violence to the legislative will if the voting power be continued solely in the hands of the Governor-General until different action is taken by the Legislature? We conclude that we would not, for the reason that the primordial purpose of the Legislature was “to promote the business of developing coal deposits * * * and of mining * * * and selling the coal contained in said deposits.” (Act No. 2705, sec. 2; Act No. 2822, sec. 1.) The incidental purpose of the Legislature was to provide a method to vote the stock owned by the Government in the National Coal Company. In the words of the United States Supreme Court, “The striking out is not necessarily by erasing words, but it may be by disregarding the unconstitutional provision and read- ing the statute as if that provision was not there.” (Eailroad Companies vs. Schutte [1880], 103 U. S., 118; State vs. Westerfield [1897], 23 Nev., 468; State vs. Wash- burn, supra; State vs. Wright [1913], 251 Mo., 325; State vs. Clausen [1919], 107 Wash., 667; 1 Lewis Sutherland, Statutory Construction, Second ed. Ch. IX.) The decision of the United States Supreme Court in Clayton vs. People ([1890], 132 U. S., 632) is particularly applicable on account of relating to the validity of an Act passed by a territorial legislature, the question of partial invalidity, and the contention likewise here made, that since the law in question had been on the statute books for a number of years, it must be considered as having been impliedly ratified by the Congress. An Act of the Legislature of Utah of 1878 had declared that the auditor and the treasurer shall be elected by the voters of the territory. In a decision handed down in 1886, the Supreme Court of the Territory of Utah held the Act void because in conflict with the organic act creating the territory, which provided that the governor, with the consent of the legislative council, shall appoint such officers. It further held that a territorial statute invalid when enacted is not validated by the failure of the Congress expressly to disapprove it. (People vs. Clayton [1886], 4 Utah, 421.) The United States Supreme Court on appeal affirmed the judgment. It said: “It can hardly be admitted as a general proposition that under the power of Congress reserved in the Organic Acts of the Territories to annul the Acts of their Legislatures the absence of any action by Congress is to be construed to be a recognition of the power of the Legislature to pass laws in conflict with the Act of Congress under which they were created. * * * We do not think that the acquiescence of the people, or of the Legislature of Utah, or of any of its officers, in the mode for appointing the auditor of public accounts, is sufficient to do away with the clear requirements of the Organic Act on that subject. It is also, we think, very clear that only that part of the Statute of Utah which is contrary to the Organic Act, namely, that relating to the mode of appointment of the officer, is invalid; that so much of it as creates the office of auditor of public accounts and treasurer of the Territory is valid; and that it can successfully and appropriately be carried into effect by an appointment made by the governor and the Council of the Territory, as required in the Act of Congress.” On the assumption, however, that the entire provision authorizing the voting committee be considered as wiped out, yet we think it would still devolve on the Governor-General to protect the public interests and public property. He is made responsible far the execution of the laws, and he would be unfaithful to that trust if, through inaction, instrumentalities of government should fail to function and government property should be permitted to be dissipated. Counsel for the defendants have injected the argument into the discussion. that, as the President of the Senate and the Speaker of the House of Representatives are at least de facto officers, their right to act as members of the voting committee cannot be collaterally attacked, and that the defendants in this suit are the de jure members of the board of directors of the National Coal Company. Contentions such as these are out of harmony with the avowed purpose to avoid technical obstruction, and to secure a definite expression of opinion on the main issue. However, it remains to be said that this is a direct proceeding to test the right of the defendants to the offices to which they consider themselves entitled. The inquiry then may go, as- is proper in quo warranto proceedings, to the extent of determining the validity of the act authorizing the offices. The fallacy of the argument relating to the de facto doctrine is that, although there may be a de facto officer in a de jure office, there cannot be a de facto officer in a de facto office. There is no such thing as a de facto office under an unconstitutional law. (Norton vs. Shelby County [1886], 118 U. S., 425.) Before terminating, a few general observations may be appropriate. The case has been carefully prepared and elaborately argued. All parties appear to desire to have the matter at issue definitely determined. We have endeavored to accommodate them. But in such a bitterly fought contest, the ingenuity of counsel presses collateral points upon us which the court need not resolve. We thus find it unnecessary to express any opinion on the propriety or legality of Executive Order No. 37,, on that portion of section 18 of the Organic Act which disqualifies Senators or Representatives for election or appointment to office, and on other subsidiary matters. Need it be added that the court is solely concerned with arriving at a correct decision on a purely legal question. Every other consideration to one side, this remains certain—The Congress of the United States clearly intended that the Governor-General’s power should be commensurate with his responsibility. The Congress never intended that the Governor-General should be saddled with the responsibility of administering the government and of executing the laws but shorn of the power to do so. The interests of the Philippines will be best served by strict adherence to the basic principles of constitutional government. We have no hesitancy in concluding that so much of section 4 of Act No. 2705, as amended by section 2 of Act No. 2822, as purports to vest the voting power of the government-owned stock in the National Coal Company in the President of the Senate and the Speaker of the House of Representatives, is unconstitutional and void. It results, therefore, in the demurrer being overruled, and as it would be impracticable for the defendants to answer, judgment shall be rendered ousting and excluding them from the offices of directors of the National Coal Company. So ordered, without costs. Street, Ostrand, Johns, and Romualdez, JJ., concur.