[ G R. No. 6157, July 30, 1910 ]
W. CAMERON FORBES, J. E. HARDING, AND C. R. TROWBRIDGE, PLAINTIFFS, VS. CHUOCO TIACO (ALIAS CHOA TEA) AND A. S. CROSSFIELD, DEFENDANTS.
D E C I S I O N
JOHNSON, J.:
An original action commenced in this court to secure a writ of prohibition against the Hon. A. S. Crossfield, as one of the judges of the Court of First Instance of the city of Manila, to prohibit him from
taking or continuing jurisdiction in a certain case commenced and pending before him, in which Chuoco Tiaco (alias Choa Tea) (respondent herein) is plaintiff, and W. Cameron Forbes, J. E. Harding, and C. R.
Trowbridge (petitioners herein) are defendants.
Upon the filing of the petition in this court, Mr. Justice Trent granted a preliminary injunction restraining the said lower court from proceeding in said cause until the question could be heard and passed upon by the Supreme Court.
The questions presented by this action are so important and the result of the conclusions may be so far reaching that we deem it advisable to make a full statement of all of the facts presented here for consideration. These facts may be more accurately gathered from the pleadings. They are as follows:
By said "demurrer" and "motion to dissolve" the question is presented whether or not the facts stated in "the second amended complaint" are sufficient upon which to issue the writ of prohibition prayed for. If it should be determined that they are not, then, of course, the writ should be denied and the injunction should be dissolved. If, on the other hand, it should be determined that the facts stated are sufficient to justify the issuance of said writ, then it should be granted and the injunction should not be dissolved, but should be made perpetual.
From the allegations of the complaint (second amended complaint), including Exhibit A (which constituted the pleadings in the court below), we find the following facts are admitted to be true:
First. That the plaintiff W. Cameron Forbes is the Governor-General of the Philippine Islands;
Second. That the plaintiff J. E. Harding is the chief of police of the city of Manila;
Third. That the plaintiff C. R. Trowbridge is the chief of the secret service of the city of Manila;
Fourth. That the defendant, A. S. Crossfield, is one of the judges of the Court of First Instance of the city of Manila;
Fifth. That the defendant Chuoco Tiaco (alias Choa Tea) is a foreigner of Chinese nationality and a subject of the Chinese Empire;
Sixth. That the plaintiff W. Cameron Forbes, acting in his official capacity as Governor-General of the Philippine Islands, in the public interest of the Philippine Government and at the request of the proper representative of the Imperial Government of China, to wit: the consul-general of the said Imperial Government, did, on or about the 19th day of August, 1909, order the said defendant, together with eleven others of Chinese nationality, to be deported from the Philippine Islands;
Seventh. That whatever the said plaintiffs J. E. Harding and C. R. Trowbridge did in connection with said deportation was done by each of them, acting under the orders of the said Governor-General, as the chief of police of the city of Manila and as the chief of the secret service of the city of Manila;
Eighth. That later, and on the 29th day of March, 1910, the said defendant Chuoco Tiaco returned to the Philippine Islands;
Ninth. That the plaintiff W. Cameron Forbes, acting through the said chief of police and the said chief of the secret service, was threatening to again deport the said Chuoco Tiaco from the Philippine Islands;
Tenth. That upon the 1st day of April, 1910, the said Chuoco Tiaco' commenced an action against the plaintiff herein (the said W. Cameron Forbes, Governor-General) in the Court of First Instance of the city of Manila and in that branch of said court over which the said A. S. Crossfield was presiding as one of the judges of said court, for the purpose of -
(a) Recovering a judgment against said defendants (plaintiffs herein) for P20,000 damages for said alleged wrongful deportation; and
(b) To procure an injunction against said defendants (plaintiffs herein) to prevent them from again deporting said plaintiff (defendant herein) from the Philippine Islands;
Eleventh. That upon the presentation or filing of the petition in the said action in the Court of First Instance and on the "9th day of April, 1910, the said A. S. Crossfield issued a preliminary injunction against the defendants, W. Cameron Forbes, J. E. Harding, and C. K. Trowbridge, and all their attorneys, agents, subordinates, servants, employees, successors in office, and all persons in any way in privity with them, forbidding them from expelling or deporting or threatening to expel or deport or procuring in any way the expulsion or deportation of the plaintiff (Chuoco Tiaco) during the continuance of the action;
Twelfth. Later, and on the........day of............, 1910, the plaintiffs herein (defendants below) each presented -
(1) A demurrer to the causes of action described in the petition filed; and
(2) A motion to dissolve the said preliminary injunction upon the general grounds -
(a) That the facts alleged were not sufficient to constitute a cause of action or for the issuance of the injunction; and
(b) Because the court was without jurisdiction.
Thirteenth. On the 17th day of May, 1910, A. S. Crossfield, after hearing the arguments of the respective parties, found -
(1) That the facts alleged in the petition did constitute a cause of action; and
(2) That the Court of First Instance did have jurisdiction to try the questions presented.
Fourteenth. On the 24th day of May, 1910, the plaintiffs herein, through their attorney, W. A. Kincaid, presented a petition in the Supreme Court asking that -
(a) An injunction be issued against the said A. S. Crossfield, restraining him from proceeding in said action until further orders from this court; and
(b) That the writ of prohibition be granted against the said judge, forbidding him from taking jurisdiction of said action and to dismiss the same.
Fifteenth. On the 24th day of May, 1910, the Hon. Grant Trent, Associate Justice, acting in vacation, issued the preliminary injunction prayed for.
On the 2d day of June, 1910, the attorneys for the defendants (herein), Messrs. O'Brien & DeWitt, and Hartford Beaumont, filed:
(1) A demurrer to the petition; and
(2) A motion to dissolve said injunction, each based upon the general ground that the facts alleged in the petition were insufficient to constitute a cause of action.
The said "demurrer" and "motion to dissolve" were brought on for hearing before the Supreme Court on the 11th day of July, 1910, and the questions presented were argued at length by the attorneys for the respective parties.
One of the questions which is presented by the pleadings and by the arguments presented in the cause is whether or not the action pending in the lower court is an action against the Governor-General, as such, as well as against the other defendants in their official capacity. If it should be decided that the action is one against the defendants in their official capacity, then the question will be presented for decision whether or not the courts have jurisdiction over the Governor-General, for the purpose of reviewing his action in any case and with especial reference to the facts presented.
The pleadings presented in this court affirmatively allege that the action in the lower court was against the defendants (plaintiffs herein) in their official capacity. The pleadings here also allege positively that the acts complained of in the lower court were done by the defendants in their official capacity; that the expulsion of the defendant (plaintiff below) was in the public interest of the Government, at the request of the consul-general of the Imperial Government of China; that the said plaintiffs J. E. Harding and C. R. Trowbridge acted under the orders of the plaintiff W. Cameron Forbes; that W. Cameron Forbes acted in his official capacity as Governor-General, the act being an act of the Government itself, which action was immediately reported to the Secretary of War.
The pleadings in the lower court simply described the defendants (plaintiffs herein) as W. Cameron Forbes, Governor-General ; J. E. Harding, chief of police of the city of Manila, and C. R. Trowbridge, chief of the secret service of the city of Manila. The lower court held that:
In this court there was no pretension by the attorney for the defendant (plaintiff below) that the action was not against the Governor-General as Governor-General, and the others as well, in their official capacity. In fact, when an inquiry was made of the attorney for the defense concerning his theory, his reply was simply that the acts of the Governor-General, being illegal, were not performed in his official capacity.
The argument of the attorney for the defendant was directed to the proposition that the Governor-General, in deporting or expelling the said Chinamen, did not act in accordance with that provision of the Philippine Bill (sec. 5, Act of Congress, July 1,1902), which provides that:
First. That the act of the Governor-General was the act of the Philippine Government and that he had a right, inherent in him as the representative of the Government and acting for the Government, to deport or expel the defendant; and
Second. In the absence of express rules and regulations for carrying such power into operation, he (the Governor- General) had a right to use his own official judgment and discretion in the exercise of such power.
In order to arrive at a correct solution of the questions presented by the foregoing facts, we shall discuss the following propositions:
I.
The Spooner Amendment provided that -
In the case of United States vs. Bull, this court, speaking through Mr. Justice Elliott, said:
Not only have all noted authors upon this question of international law reached this conclusion, but all the courts before which this particular question has been involved have also held that every government has the inherent power to expel from its borders aliens whose presence has been found detrimental to the public interest.
This court, speaking through its Chief Justice, in the case of In re Patterson (1 Phil. Rep., 93), said:
In a very recent case - The Attorney-General of Canada vs. Cain (House of Lords Reports, Appeal Cases, 1906), Lord Atkinson, speaking for the court, said (p. 545):
See also In re Adams, 1 Moore's Privy Council, 460, 472- 476 (A. D. 1837); Donegani vs. Donegani, 3 Knapp, 63, 68 (A. D. 1835) ; Cameron vs. Kyte, 3 Knapp, 332, 343 (A. D. 1835) ; Musgrave vs. Pulido, Law Reports, 5 Appeal Cases, 102 (A. D. 1879) ; Musgrave vs. Chun Teeong Toy, Law Reports, Appeal Cases, 272 (A. D. 1891); Hill vs. Bigge, 3 Moore's Privy Council, 465; The Nabob of Carnatic vs. The East Indian Company, 1 Vese, Jr., 388; Fabrigas vs. Mostyn, 1 Cowper, 161.
Mr. Vattel, writing as early as 1797, in discussing the question of the right of a nation or government to prevent foreigners from entering its territory or to expel them, said:
Mr. Frelinghuysen, as Secretary of State of the United States (1882), said:
Expulsion is a police measure, having for its object the purging of the State of obnoxious foreigners. It is a preventive, not a penal process, and it can not be substituted for criminal prosecution and punishment by judicial procedure.
The right of deportation or expulsion is generally exercised by the executive head of the Government, sometimes with and sometimes without express legislation. Sometimes it is delegated in particular instances to the heads of some departments of the Government. (Act No. 265, U. S. Philippine Commission.)
In Canada the right was given by statute to the attorney- general of Canada. (Dominion Act, 60th and 61st Victoria, chap. 11, sec. 6, as amended by 1st Edward 7th, chap. 13.)
It having been established that every government has the implied or inherent right to deport or expel from its territory objectionable aliens, whenever it is deemed necessary for the public good, we deem it pertinent to inquire:
II.
Suppose, for example, that some of the inhabitants of the thickly populated countries situated near the Philippine Archipelago, should suddenly decide to enter the Philippine Islands and should, without warning appear in one of the remote harbors and at once land, for the purpose of stirring up the inhabitants and inciting dissensions against the present Government. And suppose, for example, that the Legislature was not in session; could it be denied that the Governor-General, under his general political powers to protect the very existence of the Government, has the power to take such steps as he may deem wise and necessary for the purpose of ridding the country of such obnoxious and dangerous foreigners? To admit such a doctrine would be to admit that every government was without the power to protect its own life, and at times might be subjected to the control of people who were out of sympathy with the spirit of the Government and who owe no allegiance whatever to it, and are under no obligations to assist in its perpetuity.
It has never been denied, in a government of separate and independent departments, executive, legislative, and judicial, that the legislature may prescribe the methods or conditions for the exercise of this power, but the mere absence of such rules neither proves that the power does not exist nor that the executive head of the government may not adopt for himself such methods as he may deem advisable for the public good and the public safety. He can only be controlled in the conditions and methods as to when and how the powers shall be exercised. The right itself can not be destroyed or bartered away. When the power is once created and no rules are adopted for its enforcement, the person or authority who has to exercise such power has the right to adopt such sane methods for carrying the power into operation as prudence, good judgment and the exigencies of the case may demand; and whatever rules and regulations may be adopted by the person or department possessing this power for carrying into operation this inherent power of the government, whether they are prescribed or not, will constitute due process of law. (See speech delivered by John Marshall in the House of Representatives of the United States, Annals of the Sixth Congress, 595; United States vs. Robins, Fed. Cas. No. 16,175, 27 Fed. Cas., 825; Moyer vs. Peabody, 212 U. S., 78; Murray vs. Hoboken Land & Improvement Co., 18 How., 272; U. S. vs. Ju Toy, 198 U. S., 253, 263.)
We have said that the power to deport or expel foreigners pertains to the political department of the government. Even in those jurisdictions where the conditions under which persons may be deported are left to the courts to decide, even then the actual deportations must be carried into operation by the executive department of the government. The courts have no machinery for carrying into operation their orders except through the executive department.
In the present case the fact is charged and admitted that the defendant was deported by W. Cameron Forbes as Governor-General of the Philippine Islands, acting for the Government. Mr, Forbes is "the chief executive authority in all civil affairs of the Government of the Philippine Islands" and as such it is his duty to enforce the laws. It is our opinion and we so hold that as such "executive authority" he had full power, being responsible to his superiors only, to deport the defendant by whatever methods his conscience and good judgment might dictate. But even though we are wrong in our conclusions that he is the possessor of the inherent right to deport aliens, and it is true that the power belongs to the legislative department to prescribe rules and regulations for such deportation, yet, in the present case, the legislative department expressly recognized his authority and approved his acts by a resolution adopted by it on the 19th of April, 1910. This power of the legislature to expressly ratify acts alleged to be illegal by the executive department, has been expressly recognized by the Supreme Court of the United States in the case of United States vs. Heinszen & Co. (206 U. S., 370); O'Reilly de Camara vs. Brooke, Major-General (142 Fed. Rep., 859). An act done by an agent of the Government, though in excess of his authority, being ratified and adopted by the Government, is held to be equivalent to previous authority. (142 Federal Reporter, supra; Phillips vs. Eyre, Law Reports, 6 Queen's Bench Cases, 1; Secretary of State vs. Kamachee Baye Sahaba, 13 Moore's Privy Council, 22; O'Reilly de Camara vs. Brooke, Major-General, 209 U. S., 54.)
It is also admitted that the act of the Governor-General in deporting the defendant was in compliance with a request made by the official representative of the Imperial Government of China. It would seem, therefore, that said request, in the absence of any other power, would be sufficient justification of his act. The mere fact that a citizen or subject is out of the territory of his country does not relieve him from that allegiance which he owes to his government, and his government may, under certain conditions, properly and legally request his return. This power is expressly recognized by the Congress of the United States. (See Act of Congress of January 30, 1799, 1 Statutes at Large, 613; sec. 5533, Revised Statutes of United States; sec. 5, United States Penal Code, adopted March 4, 1909.)
It was strenuously argued at the hearings of this cause that the defendant was deported without due process of law, in fact, that was the burden of the argument of attorney for the defendant.
It has been repeatedly decided when a government is dealing with the political rights of aliens that it is not governed by that "due process of law" which governs in dealing with the civil rights of aliens. For instance, the courts of the United States have decided that in the deportation of an alien he is not entitled to right of trial by jury, the right of trial by jury being one of the steps in the "due process of law" in dealing with civil rights. (Fong Yue Ting vs. U. S., 149 U. S., 698; U. S. vs. Wong Dep Ken, 57 Fed. Rep., 206; U. S. vs. Wong Sing, 51 Fed. Rep., 79; In re Ng Loy Hoe, 53 Fed. Rep., 914.)
In the case of Moyer vs. Peabody, Governor of Colorado (212 U. S., 78), Mr. Justice Holmes, speaking for the court upon the question of what is "due process of law," said:
Having established, as we believe:
(a) That a government has the inherent right to deport aliens whenever the government believes it necessary for the public good; and
(b) That the power belongs to the political department of the government and in the Philippine Islands to the Governor-General, who is "the chief executive authority in all civil affairs" in the Government of the Philippine Islands: We deem it pertinent to inquire:
III.
It is no answer to this conclusion to say that the chief executive authority may violate his duties and the constitutional guaranties of the people, or that injustice may be done, or that great and irreparable damage may be occasioned without a remedy. The judicial is not the only department of the government which can do justice or perpetually conserve the rights of the people. The executive department of the government is daily applying laws and deciding questions which have to do with the most vital interests of the people. (Marbury vs. Madison, 1 Cranch, U. S., 152; State of Miss. vs. Johnson, 4 Wall., 475, 497; Hawkins vs. The Governor, 1 Ark., 570 (33 Am. Dec, 346); Sutherland vs. The Governor, 29 Mich., 320; People vs. Bissell, 19 Ill., 229 (68 Am. Dec, 591); State vs. Warmoth, 22 La. An., 1.)
In the case of State vs. Warmoth (22 La. An., 1) Mr. Justice Taliaferro said (pp. 3, 4):
"He [the governor] must be presumed to have this discretion, and the right of deciding what acts his duties require him to perform; otherwise his functions would be trammeled, and the executive branch of the government made subservient, in an important feature, to the judiciary.
* * * * * * * * *
These inherent, inalienable, and uncontrollable powers which must necessarily exist in the absence of express law in the chief executive authority of a nation have been clearly demonstrated by the action of the President of the United States, notably in putting down what is known as the "Whisky Rebellion" in the State of Pennsylvania, in the case of the protection of a.judge of the United States (In re Neagle, 135 U. S., 1, 64), as well as in the case of the uprising of labor organizations in the city of Chicago under the direction and control of Mr. Debbs (In re Debbs, 158 U.S., 568).
These powers and the right to exercise them according to his own good judgment and conscience and his acts in pursuance of them are purely political and are not subject to control by any other department of the government. It is believed that even the Legislature can not deprive him of the right to exercise them.
Upon the question of the right of the courts to interfere with the executive, this court has already pronounced, in the case of In re Patterson (1 Phil. Rep., 93) that:
This doctrine has been further recognized by this court in the case of Merchant vs. Del Rosario (4 Phil. Rep., 316) as well as in the case of Debrunner vs. Jaramillo (12 Phil. Rep., 316).
Under the system of government established in the Philippine Islands the Governor-General is "the chief executive authority," one of the coordinate branches of the Government, each of which, within the sphere of its governmental powers, is independent of the others. Within these limits the legislative branch can not control the judicial nor the judicial the legislative branch, nor either the executive department. In the exercise of his political duties the Governor-General is, by the laws in force in the Philippine Islands, invested with certain important governmental and political powers and duties belonging to the executive branch of the Government, the due performance of which is entrusted to his official honesty, judgment, and discretion. So far as these governmental or political or discretionary powers and duties which adhere and belong to the Chief Executive, as such, are concerned, it is universally agreed that the courts possess no power to supervise or control him in the manner or mode of their discharge or exercise. (Hawkins vs. The Governor, supra; People vs. The Governor, supra; Marbury vs. Madison, supra; Meecham on Public Onlcers, sec. 954; In re Patterson, supra; Barcelon vs. Baker, supra.)
It may be argued, however, that the present action is one to recover damages against the Governor and the others mentioned in the cause, for the illegal acts performed by them, will not an action for the purpose of in any way controlling or restraining or interfering with their political or discretionary duties. No one can be held legally responsible in damages or otherwise for doing in a legal manner what he had authority, under the law, to do. Therefore, if the Governor-General had authority, under the law, to deport or expel the defendants, and the circumstances justifying the deportation and the method of carrying it out are left to him, then he can not be held liable in damages for the exercise of this power. Moreover, if the,courts are without authority to interfere in any manner, for the purpose of controlling or interfering with the exercise of the political powers vested in the chief executive authority of the Government, then it must follow that the courts can not intervene for the purpose of declaring that he is liable in damages for the exercise of this authority. Happily we are not without authority upon this question. This precise question has come before the English courts on several different occasions.
In the cases of The Lord-Lieutenant of Ireland (Governor of Ireland), Tandy vs. Earl of Westmoreland (27 State Trials, 1246), and Luby vs. Lord Wodehouse (17 Iredell, Common Law Reports, 618) the courts held that the acts complained of were political acts done by the lord-lieutenant in his official capacity and were assumed to be within the limits of the authority delegated to him by the Crown. The courts of England held that, under the circumstances, no action could lie against the lord-lieutenant, in Ireland or elsewhere.
In the case of Chun Teeong Toy vs. Musgrave (Law Reports, Appeal Cases 1891, p. 272) the plaintiff, a Chinese subject, brought an action for damages against the defendant as collector of customs of the State of Victoria in Australia, basing his action upon the refusal of the Victorian government to permit him to enter that State. Upon a full consideration the Privy Council said:
From all the foregoing facts and authorities, we reach the following conclusions:
First. That the Government of the United States in the Philippine Islands is a government possessed with "all the military, civil, and judicial powers necessary to govern the Philippine Islands" and as such has the power and duty, through its political department, to deport aliens whose presence in the territory is found to be injurious to the public good and domestic tranquillity of the people.
Second. That the Governor-General, acting in his political and executive capacity, is invested with plenary power to deport obnoxious aliens whose continued presence in the territory is found by him to be injurious to the public interest, and in the absence of express and prescribed rules as to the method of deporting or expelling them, he may use such methods as his official judgment and good conscience may dictate.
Third. That this power to deport or expel obnoxious aliens being invested in the political department of the Government, the judicial department will not, in the absence of express legislative authority, intervene for the purpose of controlling such power, nor for the purpose of inquiring whether or not he is liable in damages for the exercise thereof.
Therefore the lower court was without jurisdiction to consider the particular questions presented in the cause, and it is hereby ordered and decreed that the writ of prohibition shall be issued, directed to the defendant, the Hon. A. S. Crossfield, perpetually prohibiting him from proceeding in the cause in which Chuoco Tiaco (alias Choa Tea) is plaintiff and W. Cameron Forbes, Charles R. Trowbridge, and J. E. Harding are defendants, and to dismiss said action, as well as to enter an order dissolving the injunction granted by him in said cause against the said defendants.
It is further ordered that a decree be entered overruling the demurrer presented in this cause, and ordering that said action be dismissed, as well as a decree making perpetual the injunction heretofore granted by Mr. Justice Trent.
It is so ordered, without any finding as to costs.
Arellano, C. J., and Torres, J., concur.
CONCURRING
MORELAND, J., with whom concurs TRENT, J.,
The nature of this action has been fully set forth, by way of quoting the entire proceedings, in the opinion of Mr. Justice Johnson. It is unnecessary again to present the facts. I differ, however, from that portion of the relation of the facts in that opinion, and the conclusion drawn therefrom, which touches the form of action commenced by Chuoco Tiaco against the Governor-General, and in which it is asserted that "thus clearly it appears that the action was against the defendants in their official capacity." In my judgment, the contrary, namely, that the action was against the Governor-General personally for acts which he sought to perform in his official capacity, clearly appears. The words "successors in office," as used in the complaint, refer only to the remedy by injunction and not to the damages prayed for by reason of the expulsion. The action no less certainly is directed against the other defendants personally.
When the case was decided in this court upon the merits, Mr. Justice Trent and myself signed the following opinion:
In this opinion we discuss the subject, largely speaking, in two aspects.
First, the nature and quality of the functions exercised by the Governor-General in arriving at the conclusion that he had the right to expel Chuoco Tiaco. Our conclusion upon this branch of the subject is that the act was in the nature of a judicial act, the functions exercised were judicial in their quality, and that he should have the same protection against civil liability in exercising this function that would be accorded to a court under similar circumstances.
Second, the fundamental nature and attributes of the office of Governor-General, and whether or not public policy requires that there be applied to him and his acts the same principles which govern the liability of the members of the Legislature and of the judiciary. Our conclusion upon this branch of the case is that the Government here is one of three departments - executive, legislative, and judicial - that the office of Governor-General is one of the coordinate branches of the Government, and that the same public policy which relieves a member of the Legislature or a member of the judiciary from personal liability for their official acts also relieves the Governor-General in like cases.
It has been settled by previous decisions of this court that the Government established in the Philippine Islands is one of three departments - legislative, executive and judicial. In the case of the U. S. vs. Bull [1] (8 Off. Gaz,, 271, 276), it is said:
He has, then, as his initiatory resolution, to determine whether the Government of the Philippine Islands has the power of expulsion at all. As a condition precedent to the decision of that question he must adjudge (a) whether the Government here is in any sense a sovereign government; for the power to expel a domiciled foreigner is distinctively an attribute of sovereignty, to be exercised, under the uniform practice of the Government of the United States, only in exceptional cases and then under recognized methods of procedure. If he resolve that question in the negative, he must then decide (b) whether the Government of the United States has conferred upon the Government here those powers of sovereignty necessary to authorize such act.
It is needless to say that the very gravest questions are involved in these determinations. I do not stop to enumerate them or to present the serious difficulties which must be met in making them. It suffices to say that, when he has fully resolved those questions, he is then only on the threshold of his inquiry. Inasmuch as it might appear to one investigating the subject for the first time that the power of expulsion might be an inherent attribute of the Executive, as in some countries it is alleged to be, he must determine, first, the fundamental nature of his executive powers. He must decide whether, under the form of the government of which his office is the executive part, the power of expulsion belongs to the executive exclusively, or solely to the legislative, or whether it belongs to both, in combination with the judicial. This requires that he distinguish his executive functions from those which are legislative, upon the one hand, and those which are judicial, upon the other - a determination most difficult in many instances, not only by reason of the considerations above set forth, but also for the reason that, while the broad distinction is clear, nevertheless, frequently, the nature of one verges so closely upon that of the other as to render the difference between them subtle, uncertain, and elusive.
He must, second, judge whether that power, whatever it is and whatever its extent, came untrammeled to the Military Governor from the hands of the President, or whether he received it modified and restricted. This determination is necessary for the reason already pointed out that the Governor-General has only such executive power as had the Military Governor. This involves an interpretation of the order of the President above quoted - a very real judicial construction of its legal signification.
He must decide, third, whether the acts or orders by which executive power was given to the Military Governor and those by which that power was transferred to him do or do riot, by their very terms, define that power itself, its character and extent, or specify with more or less certainty the acts which he may perform under it. This again brings into play functions which approach the judicial so closely as to render them practically indistinguishable.
After all these investigations, interpretations, and constructions have been completed, there still remains to the Governor-General for solution one of the most difficult problems of all that of determining whether or not, irrespective of the foregoing considerations, there exists in force and vigor, under the American regime, a law of Spanish origin with which he may adequately meet the situation that faces him. As we have already seen, the instructions of the President of the United States to General Merritt, dated May 19, 1898, provide that -
Upon the filing of the petition in this court, Mr. Justice Trent granted a preliminary injunction restraining the said lower court from proceeding in said cause until the question could be heard and passed upon by the Supreme Court.
The questions presented by this action are so important and the result of the conclusions may be so far reaching that we deem it advisable to make a full statement of all of the facts presented here for consideration. These facts may be more accurately gathered from the pleadings. They are as follows:
FACTS.
Upon the filing of the original complaint and after a due consideration of the facts stated therein, the Hon. Grant Trent, acting as vacation justice, on the 24th day of May, 1910, issued the following order or injunction:"SECOND AMENDED COMPLAINT.
"The plaintiffs set forth:
"I. That all the parties in this case reside in the city of Manila, Philippine Islands.
"II. That the plaintiff W. Cameron Forbes is the Governor-General of the Philippine Islands and that the plaintiffs J. E. Harding and C. R. Trowbridge are, respectively, chief of police and chief of the secret service of the city of Manila.
"III. That the defendant A. S. Crossfield is one of the judges of the Court of First Instance of the city of Manila.
"IV. That the defendant Chuoco Tiaco (alias Choa Tea) is a foreigner of Chinese nationality and a subject of the Chinese Empire.
"V. That on the 1st of April, 1910, the defendant Chuoco Tiaco (alias Choa Tea) filed a suit in the Court of First Instance of the city of Manila against the plaintiffs in which substantially the following allegations and petition were made, alleging that on the 19th of August, 1909, under the orders of the said W. Cameron Forbes, Governor-General of the Philippine Islands, he was deported therefrom and sent to Amoy, China, by the aforesaid J. E. Harding and C. R. Trowbridge, chiefs, as above stated, of the police and of the secret service, respectively, of the city of Manila, and that having been able to return to these Islands he feared, as it was threatened, that he should be again deported by the said defendants, concluding with a petition that a preliminary injunction should be issued against the plaintiffs in this case prohibiting them from deporting the defendant, Chuoco Tiaco (alias Choa Tea), and that they be sentenced to pay him P20,000 as an indemnity.
"VI. It is true that the said defendant Chuoco Tiaco (alias Choa Tea) was, with eleven others of his nationality, expelled from these Islands and returned to China by the plaintiffs J. E. Harding and C. R. Trowbridge, under the orders of the plaintiff W. Cameron Forbes, on the date mentioned in Paragraph V of this complaint, but the said expulsion was carried out in the public interest of the Government and at the request of the proper representative of the Chinese Government in these Islands, to wit, the consul-general of said country, the said W. Cameron Forbes acting in his official capacity as such Governor-General, the act performed by this plaintiff being one of the Government itself and which the said plaintiff immediately reported to the Secretary of War.
"VII. The said complaint having been filed with the defendant A. S. Crossfield, he, granting the petition, issued against the plaintiffs the injunction requested, prohibiting them from deporting the defendant Chuoco Tiaco (alias Choa Tea).
"VIII. The plaintiffs, having been summoned in the matter of the said complaint, filed a demurrer against the same and presented a motion asking that the injunction be dissolved, the grounds of the demurrer being that the facts set out in the complaint did not constitute a motive of action, and that the latter was one in which the court lacked jurisdiction to issue such an injunction against the plaintiffs for the reasons set out in the complaint; notwithstanding which, the defendant A. S. Crossfield overruled the demurrer and disallowed the motion, leaving the complaint and the injunction standing, in proof of which the plaintiffs attach a certified copy by the clerk of the Court of First Instance of the city of Manila of all the proceedings in said case, except the summons and notifications, marking said copy 'Exhibit A' of this complaint. (See below.)
"IX. The Court of First Instance, according to the facts related in the complaint, lacks jurisdiction in the matter, since the power to deport foreign subjects of the Chinese Empire is a privative one of the Governor-General of these Islands, and the defendant A, S. Crossfield exceeded his authority by trying the case and issuing the injunction and refusing to allow the demurrer and motion for the dismissal of the complaint and the dissolution of the injunction.
"Therefore, the plaintiffs pray the court:
"(a) That an injunction immediately issue against the defendant A. S. Crossfield ordering him to discontinue the trial of said cause until further orders from this court;
"(b) That the defendants being summoned in accordance with law, a prohibitive order issue against the said defendant A. S. Crossfield, restraining him from assuming jurisdiction in said case and ordering him to dismiss the same and cease from the trial thereof;
"(c) Finally, that the plaintiffs be granted such other and further relief to which they may be entitled according to the facts, and that they may be allowed the costs of the trial.
"Manila, July 9, 1910.
"IGNACIO VlLLAMOR,"Attorney-General
"W. A. KINCAID,"THOMAS L. HARTIGAN,"By W. A. KINCAID,"Attorneys for the plaintiffs.
"UNITED STATES OF AMERICA,
"Philippine Islands, city of Manila, ss:
"W. A. Kincaid, being first duly sworn, states that he is one of the attorneys for the plaintiffs in the preceding second amended complaint, and that all the facts alleged therein are true, to the best of his knowledge and belief.
(Signed) "W. A. KINCAID.
"Subscribed and sworn to before me this 9th day of July, 1910. Cedula No. F. 1904, issued in Manila on January 3, 1910.
(Signed) "IGNACIO DE ICAZA,
"Notary Public.
"(My appointment ends Dec. 31, 1910.)
"We" have received a copy of the above,
(Signed) "O'BRIEN & DEWITT,"HARTFORD BEAUMONT,"Attorneys for defendants."
"EXHIBIT A.
"[United States of America, Philippine Islands. In the Court of First Instance of the city of Manila. No. 7740. Chuoco Tiaco (alias Choa Tea), plaintiff, vs. W. Cameron Forbes, Charles R. Trowbridge, and J. E. Harding, defendants.]
"COMPLAINT.
"Comes now the plaintiff, by his undersigned attorneys, and for cause of action alleges:
"First That the plaintiff is and has been for the last thirty-five years a resident of the city of Manila, Philippine Islands.
"Second. That the defendant W. Cameron Forbes is the Governor-General of the Philippine Islands and resides in the municipality of Baguio, Province of Benguet, Philippine Islands; that the defendant Charles R. Trowbridge is chief of the secret service of the city of Manila, and that the defendant J. E. Harding is chief of police of the city of Manila, and that both of said defendants reside in the said city of Manila, Philippine Islands.
"Third. That the said plaintiff is a Chinese person and is lawfully a resident of the Philippine Islands, his right to be and remain therein having been duly established in accordance with law by the Insular customs and immigration authorities.
"Fourth. That on or about the 19th day of August, 1909, the defendants herein, Charles R. Trowbridge and J. E. Harding, unlawfully and fraudulently conspiring and conniving with the other defendant herein, the said W. Cameron Forbes, and acting under the direction of the said defendant, W. Cameron Forbes, did unlawfully seize and carry on board the steamer Yuensang the said plaintiff herein against his will, with the intent by said force to unlawfully deport and expel the said plaintiff herein from the Philippine Islands against the will of the said plaintiff herein.
"Fifth. That the said defendants herein and each of them, after forcibly placing the said plaintiff herein upon the said steamer Yuensang, as herein before alleged, did cause the said steamer Yuensang to take and carry away the plaintiff herein from the Philippine Islands to the port of Amoy, in the Empire of China.
"Sixth. That the said defendants herein, unlawfully conspiring and conniving together, the said Charles R. Trowbridge and the said J. E. Harding, acting under the direction of the said defendant, W. Cameron Forbes, did forcibly prevent the plaintiff herein from returning to these Philippine Islands until the 29th day of March, 1910.
"Seventh. That the defendants herein, by their unlawful acts herein before alleged, have damaged the plaintiff herein in the sum of twenty thousand pesos (P20,000) Philippine currency.
"SECOND CAUSE OF ACTION.
"As a second cause of action the plaintiff alleges:
"First. He repeats and reiterates each and every allegation contained in the first (1st) and second (2d) paragraphs of the first cause of action, and hereby makes the said paragraphs a part of this cause of action.
"Second. That the said plaintiff herein is a Chinese person who is and has been a resident of the Philippine Islands for the last twenty-nine years, he having duly established his right to be and remain in the Philippine Islands since the American occupation thereof in accordance with law.
"Third. That the said plaintiff herein, during his residence in these Islands, has acquired and is actually the owner, or part owner, of property and business interests and enterprises of great value within the Philippine Islands, and that the said property and business interests and enterprises require the personal presence of the plaintiff herein in the Philippine Islands for the proper management and supervision and preservation thereof.
"Fourth. That the said plaintiff has a family in the Philippine Islands and that said family is dependent upon the said plaintiff for support and that it is impossible for the said plaintiff to give the said family that support unless he, the said plaintiff, is actually present within the Philippine Islands.
"Fifth. That on or about the 19th day of August, 1909, the defendants herein, Charles R. Trowbridge and J. E. Harding, unlawfully and fraudulently conspiring and conniving with the other defendant herein, the said W. Cameron Forbes, and acting under the direction of the said defendant, W. Cameron Forbes, did unlawfully seize and carry on board the steamer Yuensang the said plaintiff herein with the intent by said force to unlawfully deport and expel the said plaintiff herein from the Philippine Islands against the will of the said plaintiff herein.
"Sixth. That, notwithstanding the efforts of the said defendants herein to forcibly and unlawfully prevent the said plaintiff herein from returning to the Philippine Islands, the said plaintiff herein returned to the said city of Manila, Philippine Islands, on the 29th day of March, 1910, and was duly landed by the customs and immigration authorities in accordance with law, after having duly established his right to be and to remain herein.
"Seventh. That since the arrival of the said plaintiff herein in the Philippine Islands on the 29th day of March, 1910, as hereinbefore alleged, the said defendants herein unlawfully and fraudulently conniving and conspiring together, the said J. B. Harding and Charles R. Trowbridge, acting under the orders and directions of the said defendant, W. Cameron Forbes, have threatened, unlawfully, forcibly, and against the will of the plaintiff herein, to expel and deport plaintiff herein from the Philippine Islands, and that the defendants herein, and each and every one of them are doing all that is in their power to procure the unlawful, forcible, and involuntary expulsion of the plaintiff herein from the Philippine Islands in violation of the right of the said plaintiff herein to be and to remain in the Philippine Islands as established by law.
"Eighth. That the plaintiff herein has no adequate remedy other than that herein prayed for.
"Wherefore, the plaintiff prays that a temporary writ of injunction issue out of this court enjoining the said defendants and each of them and their and each of their agents, servants, employees, attorneys, successors in office, subordinate officers, and every person in any way in privity with them, from expelling or deporting or threatening to expel or deport or procure in any way the expulsion or deportation in any way of the plaintiff herein during the continuance of this action.
"And upon the final hearing of the cause the said temporary writ of injunction be made perpetual, and that the defendants and each of them be condemned to pay to the plaintiff herein the sum of twenty thousand pesos (P20,000) damages and the costs of this action.
"Manila, P. I., April 1, 1910.
(Signed) "O'BRIEN & DEWITT,
"H. BEAUMONT,
"Attorneys for plaintiff.
"CITY OF MANILA, Philippine Islands, ss:
"C. W. O'Brien, holding cedula No. 1095, dated at Manila, P. I., January 4, 1910, being duly sworn, upon oath deposes and says that he is one of the attorneys for the plaintiff and has read the above-entitled complaint and knows that the facts therein stated are true and correct, except such as are stated upon information and belief, and as to those he believes them to be true.
(Signed) "C. W. O'BRIEN.
"Subscribed and sworn to before me this 1st day of April, 1910, at Manila, P. I.
(Signed) "J. MCMICKING."
The Hon. A. S. Crossfield issued the following order:
"ORDER.
"To the defendants, W. Cameron Forbes, Charles R. Trowbridge, J. E. Harding, and all their attorneys, agents, subordinates, servants, employees, successors in office, and all persons in any way in privity with them greeting:
"The plaintiff having presented a complaint before this Court of First Instance of the city of Manila, in the cause above entitled, against the defendants W. Cameron Forbes, Charles R. Trowbridge, and J. E. Harding, above named, and having prayed likewise that a temporary injunction issue against the said defendants restraining them from doing and continuing to do certain acts mentioned in the said complaint and which are more particularly set forth hereinafter in this order; in view of the said complaint and the verification thereof by this attorney, and it appearing satisfactorily to me because of the facts alleged in said complaint that the case is one in which a preliminary injunction ought to issue, and the required bond having been executed in the sum of P2,000:
"It is hereby ordered by the undersigned, judge of this Court of First Instance of the city of Manila, that the said defendants, W. Cameron Forbes, Charles R. Trowbridge, and J. E. Harding, and all of their attorneys, agents, subordinates, servants, employees, successors in office, and all persons in any way in privity with them, are, and each of them is, hereby restrained and enjoined from expelling or deporting or threatening to expel or deport, or procuring in any way the expulsion or deportation in any way of the plaintiff herein during the continuance of this action.
"Manila, P. I, April 9, 1910.
(Signed) "A. S. CROSSFIELD,"Judge, Court of First Instance, city of Manila, P. I."
"DEMURRER.
"Comes the defendant, W. Cameron Forbes, Governor- General of the Philippine Islands, and -
"I. Demurs to the first count or cause of action in the complaint because the same does not state facts sufficient to constitute a cause of action against the defendant.
"II. He demurs to the second count or cause of action in the complaint because the same does not state facts sufficient to constitute a cause of action against this defendant.
"Wherefore he prays the judgment of the court upon the sufficiency of each of the pretended causes of action set forth in the complaint.
(Signed) "W. A. KINCAID,
"THOMAS L, HARTIGAN,
"By W. A. KINCAID,
"Attorneys for defendant W. Cameron Forbes.
"Comes the defendant, W. Cameron Forbes, and moves the court to dissolve the temporary injunction issued against him in this cause, without notice to this defendant, for the following reasons:
"I. The complaint is insufficient to justify the issuance of the injunction.
"II. The court is without jurisdiction to issue said injunction.
(Signed) "W. A. KINCAID AND
"THOMAS L. HARTIGAN,
"By W. A. KINCAID,
"Attorneys for defendant W. Cameron Forbes.
(Signed) "IGNACIO VILLAMOR,
"Attorney-General"
"DEMURRER.
"Come the defendants, C. R. Trowbridge and J. E. Harding, and -
"I. Demur to the first count or cause of action in the complaint because the same does not state facts sufficient to constitute a cause of action against these defendants.
"II. They demur to the second count or cause of action in the complaint because the same does not state facts sufficient to constitute a cause of action against these defendants.
"Wherefore, they pray the judgment of the court upon the sufficiency of each of the pretended causes of action set forth in the complaint.
(Signed) "W. A. KINCAID AND
"THOMAS L. HARTIGAN,
"By W. A. KINCAID,
"Attorneys for defendants C. R. Trowbridge
and J. E. Harding.
(Signed) "IGNACIO VILLAMOR,
"Attorney-General.
"Come the defendants, C. R. Trowbridge and J. E. Harding, and move the court to dissolve the temporary injunction issued against them in this cause, without notice to these defendants, for the following reasons:
"I. The complaint is insufficient to justify the issuance of the injunction.
"II. The court is without jurisdiction to issue said injunction.
(Signed) "W. A. KINCAID AND
"THOMAS L. HARTIGAN,
"By W. A. KINCAID,
"Attorneys for defendants C. R. Trowbridge
and J. E. Harding.
(Signed) "IGNACIO VILLAMOR,
"Attorney-General."
"ORDER.
"This case is now before the court for hearing the demurrer presented by the defendants to plaintiff's complaint and defendants' motion to dissolve the injunction issued against the defendants upon plaintiff's complaint.
"Messrs. O'Brien and DeWitt appeared for the plaintiff; W. A. Kincaid, esq., for the defendants.
"The demurrer is based upon the ground that the complaint does not state facts sufficient to constitute a cause of action. The motion to dissolve the injunction is grounded upon an insufficiency of the complaint and lack of jurisdiction in the court.
"Counsel for both parties made exhaustive arguments, both apparently considering the primal issue to be whether the defendant, W. Cameron Forbes, had authority at law, as Governor-General of the Philippine Islands, to deport plaintiff, as alleged in the complaint, and whether the court had jurisdiction to restrain him from making such deportation.
"No question was raised as to the sufficiency of the complaint if all question as to the Governor-General's authority was eliminated.
"A reading of the complaint discloses that the Governor-General of the Philippine Islands, as such, is not a party to the action,
"The allegations of the second paragraph of the complaint, to the effect that W. Cameron Forbes is the Governor-General of the Philippine Islands, that Charles R. Trowbridge is chief of the secret service of Manila, and J. E. Harding is chief of police of Manila, are descriptive only, and there is no allegation in the complaint that any of the defendants performed the acts complained of in his official capacity.
"The court can not determine the authority or liability of an executive officer of the Government until the pleadings disclose that his actions as such officer are brought in issue.
"The complaint upon its face states a cause of action.
"The complaint, stating a cause of action and alleging that the plaintiff is threatened with,an injury by the defendants, they may be properly restrained from committing the alleged injury until issues raised have been tried and determined and the court has jurisdiction to issue an injunction.
"The demurrer is, therefore, overruled. The motion to dissolve the preliminary injunction is denied.
"Manila, P. I., this 17th day of May, 1910.
(Signed) "A. S. CROSSFIELD, Judge"
On the 2d day of June, 1910, the defendants presented the following demurrer to the original complaint:"PRELIMINARY INJUNCTION.
"Whereas, from the facts alleged in the complaint filed in the above-entitled case, it is found that the plaintiffs are entitled to the preliminary injunction prayed for by them;
"Therefore, the bond of P500 mentioned in the order of the 24th of May, 1910, having been filed, the Hon. A. S. Crossfield, judge of the Court of First Instance of the city of Manila, is hereby notified that, until he shall have received further orders from this court, he is prohibited from proceeding with the trial of the case filed by the defendant Chuoco Tiaco, alias Choa Tea, in the Court of First Instance of this city, against the within plaintiffs for indemnity as damages for the alleged deportation of the said Chuoco Tiaco, alias Choa Tea.
"Given in Manila this 24th day of May, 1910.
(Signed) "GRANT TRENT,
"Associate Justice, Supreme Court, acting in vacation."
"And now come the defendants in the above-entitled cause, by their undersigned attorneys, and hereby file their demurrer to the complaint upon the grounds that the facts alleged in the complaint do not constitute a right of action.On the 2d day of June, 1910, the defendants made a motion to dissolve the said injunction, which motion was in the following language:
"Therefore the court is petitioned to dismiss the complaint, with the costs against the plaintiff.
"Manila, June 2,1910.
(Signed) "O'BRIEN & DEWITT, and
"HARTFORD BEAUMONT,
"Attorneys for defendants.
"To the plaintiffs or their attorneys:
"You are hereby notified that on Monday, the 13th inst, at nine o'clock in the morning, we shall ask the court to hear and decide the preceding demurrer.
"Manila, June 2, 1910.
(Signed) "O'BRIEN & DEWITT, AND
"HARTFORD BEAUMONT,
"Attorneys for defendants.
"We have this day, June 2, 1910, received a copy of the above.
(Stamp) "W. A. KINCAID AND
"THOMAS L. HARTIGAN,
"By J. BORJA,
"Attorneys for plaintiffs."
"And now come the defendants in the above-entitled case and pray the court to dissolve the preliminary injunction issued in the above-entitled case, on the 24th day of May, 1910, on the grounds:Later the plaintiffs obtained permission to file the second amended complaint above quoted. By a stipulation between the parties "the demurrer" and "motion to dissolve" were to be considered as relating to the said second amended complaint.
"(1) That the facts alleged in the complaint are not sufficient to justify the issuance of the said preliminary injunction;
"(2) That the facts alleged in the complaint do not constitute a right of action.
"Manila, P. I., June 2, 1910.
(Signed) "O'BRIEN & DEWITT, AND
"HARTFORD BEAUMONT,
"Attorneys for defendants.
"To the plaintiffs and to their attorneys:
"You are hereby notified that on Monday, the 13th inst., at nine o'clock a. m., we shall ask for a hearing on the preceding motion.
"Manila, June 2, 1910.
(Signed) "O'BRIEN & DEWITT, AND
"HARTFORD BEAUMONT,
"Attorneys for defendants.
"We have this day received a copy of the foregoing.
(Stamp) "W. A. KINCAID AND
"THOMAS L. HARTIGAN,
"By J. BOBJA,
"Attorneys for plaintiffs."
By said "demurrer" and "motion to dissolve" the question is presented whether or not the facts stated in "the second amended complaint" are sufficient upon which to issue the writ of prohibition prayed for. If it should be determined that they are not, then, of course, the writ should be denied and the injunction should be dissolved. If, on the other hand, it should be determined that the facts stated are sufficient to justify the issuance of said writ, then it should be granted and the injunction should not be dissolved, but should be made perpetual.
From the allegations of the complaint (second amended complaint), including Exhibit A (which constituted the pleadings in the court below), we find the following facts are admitted to be true:
First. That the plaintiff W. Cameron Forbes is the Governor-General of the Philippine Islands;
Second. That the plaintiff J. E. Harding is the chief of police of the city of Manila;
Third. That the plaintiff C. R. Trowbridge is the chief of the secret service of the city of Manila;
Fourth. That the defendant, A. S. Crossfield, is one of the judges of the Court of First Instance of the city of Manila;
Fifth. That the defendant Chuoco Tiaco (alias Choa Tea) is a foreigner of Chinese nationality and a subject of the Chinese Empire;
Sixth. That the plaintiff W. Cameron Forbes, acting in his official capacity as Governor-General of the Philippine Islands, in the public interest of the Philippine Government and at the request of the proper representative of the Imperial Government of China, to wit: the consul-general of the said Imperial Government, did, on or about the 19th day of August, 1909, order the said defendant, together with eleven others of Chinese nationality, to be deported from the Philippine Islands;
Seventh. That whatever the said plaintiffs J. E. Harding and C. R. Trowbridge did in connection with said deportation was done by each of them, acting under the orders of the said Governor-General, as the chief of police of the city of Manila and as the chief of the secret service of the city of Manila;
Eighth. That later, and on the 29th day of March, 1910, the said defendant Chuoco Tiaco returned to the Philippine Islands;
Ninth. That the plaintiff W. Cameron Forbes, acting through the said chief of police and the said chief of the secret service, was threatening to again deport the said Chuoco Tiaco from the Philippine Islands;
Tenth. That upon the 1st day of April, 1910, the said Chuoco Tiaco' commenced an action against the plaintiff herein (the said W. Cameron Forbes, Governor-General) in the Court of First Instance of the city of Manila and in that branch of said court over which the said A. S. Crossfield was presiding as one of the judges of said court, for the purpose of -
(a) Recovering a judgment against said defendants (plaintiffs herein) for P20,000 damages for said alleged wrongful deportation; and
(b) To procure an injunction against said defendants (plaintiffs herein) to prevent them from again deporting said plaintiff (defendant herein) from the Philippine Islands;
Eleventh. That upon the presentation or filing of the petition in the said action in the Court of First Instance and on the "9th day of April, 1910, the said A. S. Crossfield issued a preliminary injunction against the defendants, W. Cameron Forbes, J. E. Harding, and C. K. Trowbridge, and all their attorneys, agents, subordinates, servants, employees, successors in office, and all persons in any way in privity with them, forbidding them from expelling or deporting or threatening to expel or deport or procuring in any way the expulsion or deportation of the plaintiff (Chuoco Tiaco) during the continuance of the action;
Twelfth. Later, and on the........day of............, 1910, the plaintiffs herein (defendants below) each presented -
(1) A demurrer to the causes of action described in the petition filed; and
(2) A motion to dissolve the said preliminary injunction upon the general grounds -
(a) That the facts alleged were not sufficient to constitute a cause of action or for the issuance of the injunction; and
(b) Because the court was without jurisdiction.
Thirteenth. On the 17th day of May, 1910, A. S. Crossfield, after hearing the arguments of the respective parties, found -
(1) That the facts alleged in the petition did constitute a cause of action; and
(2) That the Court of First Instance did have jurisdiction to try the questions presented.
Fourteenth. On the 24th day of May, 1910, the plaintiffs herein, through their attorney, W. A. Kincaid, presented a petition in the Supreme Court asking that -
(a) An injunction be issued against the said A. S. Crossfield, restraining him from proceeding in said action until further orders from this court; and
(b) That the writ of prohibition be granted against the said judge, forbidding him from taking jurisdiction of said action and to dismiss the same.
Fifteenth. On the 24th day of May, 1910, the Hon. Grant Trent, Associate Justice, acting in vacation, issued the preliminary injunction prayed for.
On the 2d day of June, 1910, the attorneys for the defendants (herein), Messrs. O'Brien & DeWitt, and Hartford Beaumont, filed:
(1) A demurrer to the petition; and
(2) A motion to dissolve said injunction, each based upon the general ground that the facts alleged in the petition were insufficient to constitute a cause of action.
The said "demurrer" and "motion to dissolve" were brought on for hearing before the Supreme Court on the 11th day of July, 1910, and the questions presented were argued at length by the attorneys for the respective parties.
One of the questions which is presented by the pleadings and by the arguments presented in the cause is whether or not the action pending in the lower court is an action against the Governor-General, as such, as well as against the other defendants in their official capacity. If it should be decided that the action is one against the defendants in their official capacity, then the question will be presented for decision whether or not the courts have jurisdiction over the Governor-General, for the purpose of reviewing his action in any case and with especial reference to the facts presented.
The pleadings presented in this court affirmatively allege that the action in the lower court was against the defendants (plaintiffs herein) in their official capacity. The pleadings here also allege positively that the acts complained of in the lower court were done by the defendants in their official capacity; that the expulsion of the defendant (plaintiff below) was in the public interest of the Government, at the request of the consul-general of the Imperial Government of China; that the said plaintiffs J. E. Harding and C. R. Trowbridge acted under the orders of the plaintiff W. Cameron Forbes; that W. Cameron Forbes acted in his official capacity as Governor-General, the act being an act of the Government itself, which action was immediately reported to the Secretary of War.
The pleadings in the lower court simply described the defendants (plaintiffs herein) as W. Cameron Forbes, Governor-General ; J. E. Harding, chief of police of the city of Manila, and C. R. Trowbridge, chief of the secret service of the city of Manila. The lower court held that:
"The allegations of the second paragraph of the complaint, to the effect that W. Cameron Forbes is the Governor-General of the Philippine Islands, that Charles R. Trowbridge is the chief of the secret service of Manila, and that J. E. Harding is the chief of police of Manila, are descriptive only, and there is no allegation in the complaint that any of the defendants (plaintiffs herein) performed the acts complained of in his official capacity."The theory of the lower court evidently was that the defendants should have been described, for example, "W. Cameron Forbes, as Governor-General," etc. In this theory the lower court has much authority in its support However, this failure of correct and technical description of the parties is an objection which the parties themselves should present, but when all the parties treat the action as one based upon a particular theory, that theory should be accepted. Upon this question the lower court, in his order, said:
"Counsel for both parties made exhaustive arguments, both apparently considering the primal issue to be whether the defendant, W. Cameron Forbes, had authority at Jaw, as Governor-General of the Philippine Islands, to deport plaintiff, as alleged in the complaint and whether the court had jurisdiction to restrain him from making such deportation."It will be noted also that the prayer of the complaint in the lower court asked for relief against ''his successors in office." The injunction also ran against "his successors in office." Thus clearly it appears that the action was against the defendants in their official capacity.
In this court there was no pretension by the attorney for the defendant (plaintiff below) that the action was not against the Governor-General as Governor-General, and the others as well, in their official capacity. In fact, when an inquiry was made of the attorney for the defense concerning his theory, his reply was simply that the acts of the Governor-General, being illegal, were not performed in his official capacity.
The argument of the attorney for the defendant was directed to the proposition that the Governor-General, in deporting or expelling the said Chinamen, did not act in accordance with that provision of the Philippine Bill (sec. 5, Act of Congress, July 1,1902), which provides that:
"No law shall be enacted in said Islands which shall deprive any person of life, liberty, or property, without due process of law; or deny to any person therein equal protection of the laws."The attorney for the plaintiffs, in answering this argument, maintained:
First. That the act of the Governor-General was the act of the Philippine Government and that he had a right, inherent in him as the representative of the Government and acting for the Government, to deport or expel the defendant; and
Second. In the absence of express rules and regulations for carrying such power into operation, he (the Governor- General) had a right to use his own official judgment and discretion in the exercise of such power.
In order to arrive at a correct solution of the questions presented by the foregoing facts, we shall discuss the following propositions:
I.
WHAT ARE THE POWERS OF THE PHILIPPINE GOVERNMENT TO DEPORT OR EXPEL OBJECTIONABLE ALIENS?
The Spooner Amendment provided that -
"All military, civil, and judicial powers necessary to govern the Philippine Islands * * * shall, until otherwise provided by Congress, be vested in such person and persons, and shall be exercised in such manner, as the President of the United States shall direct, for the establishment of civil government and for maintaining and protecting the inhabitants of said Islands in the free enjoyment of their liberty, property, and religion."By this Act of Congress a system of government was established in the Philippine Islands which carried with it the right and duty on the part of such government to perform all acts that might be necessary or expedient for the security, safety, and welfare of the people of the Islands.
In the case of United States vs. Bull, this court, speaking through Mr. Justice Elliott, said:
"Within the limits of its authority the Government of the Philippine Islands is a complete governmental organism, with executive, legislative, and judicial departments exercising the functions commonly assigned to such departments. The separation of powers is as complete as in most governments."Having reached the conclusion that the Government of the United States in the Philippine Islands is a government with all the necessary powers of a government, subject to certain control in the exercise thereof, we are of the opinion, and so hold, that it has impliedly or inherently all such powers as are necessary to preserve itself in conformity with the will of the Congress of the United States and the President thereof, and to this end it may prevent the entrance into or eliminate from its borders all such aliens whose presence is found to be detrimental or injurious to its public interest, peace, and domestic tranquillity. Every government having the dignity of a government possesses this power. Every author who has written upon the subject of international law and who has discussed this question has reached the same conclusion. Among these authors may be mentioned such noted men and statesmen as Vattel, Ortolan, Blackstone, Chitty, Phillimore, Puffendorf, Fiore, Martens, Lorimer, Torres, Castro, Bello, Heffter, Marshall, Cooley, Wharton, Story, Moore, Taylor, Oppenheim, Westlake, Holland, Scott, Haycroft, Craies, Pollock, Campbell, and others.
Not only have all noted authors upon this question of international law reached this conclusion, but all the courts before which this particular question has been involved have also held that every government has the inherent power to expel from its borders aliens whose presence has been found detrimental to the public interest.
This court, speaking through its Chief Justice, in the case of In re Patterson (1 Phil. Rep., 93), said:
"Unquestionably every State has a fundamental right to its existence and development, and also to the integrity of its territory and the exclusive and peaceable possession of its dominions, which it may guard and defend by all possible means against any attack. * * * We believe it is a doctrine generally professed by virtue of that fundamental right to which we have referred that under no aspect of the case does this right of intercourse give rise to any obligation on the part of the State to admit foreigners under all circumstances into its territory. The international community, as Martens says, leaves States at liberty to fix the conditions under which foreigners should be allowed to enter their territory. These conditions may be more or less convenient to foreigners, but they are a legitimate manifestation of territorial power and not contrary to law. In the same way a State may possess the right to expel from its territory any foreigner who does not conform to the provisions of the local law. (Martens's Treatise on International Law, vol. 1, p. 381.) Superior to the law which protects personal liberty, and the agreements which exist for their own interests and for the benefit of their respective subjects, is the supreme and fundamental right of each State to self-preservation and the integrity of its dominion and its sovereignty. Therefore it is not strange that this right should be exercised in a sovereign manner by the executive power, to which is especially entrusted, in the very nature of things, the preservation of so essential a right, without interference on the part of the judicial power. If it can not be denied that under normal circumstances when foreigners are present in the country the sovereign power has the right to take all necessary precautions to prevent such foreigners from imperiling the public safety and to apply repressive measures in case they should abuse the hospitality extended to them, neither can we shut our eyes to the fact that there may be danger to personal liberty and international liberty if to the executive branch of the government there should be conceded absolutely the power to order the expulsion of foreigners by means of summary and discretional proceedings; nevertheless, the greater part of modern laws, notwithstanding these objections, have sanctioned the maxim that the expulsion of foreigners is a political measure and that the executive power may expel, without appeal, any person whose presence tends to disturb the public peace."The Supreme Court of the United States, speaking through Mr. Justice Field, in the case of Chao Chan Ping vs. United States (130 U. S., 581) (A. D. 1888), said:
"These laborers are not citizens of the United States; they are aliens. That the Government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence. If it could not exclude aliens it would be, to that extent, subject to the control of another power. The United States in their relation to foreign countries and their subjects or citizens are one nation invested with powers which belong to independent nations, the exercise of which can be invoked for the maintenance of its absolute independence and security throughout its entire territory. * * *In the case of Ekiu vs. United States (142 U. S., 651, 659) (A. D. 1891) the Supreme Court of the United States, speaking through Mr. Justice Gray, said:
"* * * The power of exclusion of foreigners being an incident of sovereignty, belonging to the Government of the United States as a part of those sovereign powers delegated by the Constitution, the right to its exercise at any time when, in the judgment of the Government, the interests of the country require it, can not be granted away or restrained on behalf of anyone. The powers of the Government are delegated in trust to the United States and are incapable of transfer to any other parties. They (the incidents of sovereignty) can not be abandoned or surrendered nor can their exercise be hampered when needed for the public, by any consideration of private interests."
"It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions or to admit them only in such cases and upon such conditions as it may see fit to prescribe. In the United States this power is vested in the National Government, to which the Constitution has committed the entire control of international relations, in peace as well as in war. It belongs to the political department of the Government and may be exercised either through treaties made by the President and Senate or through statutes enacted by Congress."Later, the Supreme Court of the United States, in the case of Fong Yue Ting vs. United States (149 U. S., 698) (A. D. 1892), speaking through Mr. Justice Gray, again said:
"The right of a nation to expel or deport foreigners who have not been naturalized or taken any steps toward becoming citizens of the country, rests upon the same grounds and is as absolute and unqualified as the right to prohibit and prevent their entrance into the country."The power to exclude or expel aliens being a power affecting international relations is vested in the political department of the Government. The power to exclude aliens and the power to expel them rest upon one foundation, are derived from one source, are supported by the same, reasons, and are, in truth, but the exercise of one and the same power.
In a very recent case - The Attorney-General of Canada vs. Cain (House of Lords Reports, Appeal Cases, 1906), Lord Atkinson, speaking for the court, said (p. 545):
"In 1763 Canada and all its dependencies, with the sovereignty, property, and possession, and all other rights which had at any time been held or acquired by the Crown of France, were ceded to Great Britain (St. Catherine's Milling and Lumber Company vs. Beg., 14 Appeal Cases, 46, 53). Upon that event the Crown of England became possessed of all legislative and executive powers within the country so ceded to it and, save so far as it has since parted with these powers by legislation, royal proclamation, or voluntary grant, it is still possessed of them.In the case of Hodge vs. Reg. (9 Appeal Cases, 117) it was decided that a colonial legislature, under the British Government, has, within the limits prescribed by the statute which created it, an authority as plenary and as ample as the imperial parliament in the plenitude of its power possessed and could bestow.
"One of the rights possessed by the supreme power in every State is the right to refuse to permit an alien to enter that State, to annex what conditions it pleases to the permission to enter it, and to expel or deport from the State, at pleasure, even a friendly alien, especially if it considers his presence in the State opposed to its peace, order, and good government, or to its social or material interests." (Citing Vattel's Law of Nations in support of his proposition.)
See also In re Adams, 1 Moore's Privy Council, 460, 472- 476 (A. D. 1837); Donegani vs. Donegani, 3 Knapp, 63, 68 (A. D. 1835) ; Cameron vs. Kyte, 3 Knapp, 332, 343 (A. D. 1835) ; Musgrave vs. Pulido, Law Reports, 5 Appeal Cases, 102 (A. D. 1879) ; Musgrave vs. Chun Teeong Toy, Law Reports, Appeal Cases, 272 (A. D. 1891); Hill vs. Bigge, 3 Moore's Privy Council, 465; The Nabob of Carnatic vs. The East Indian Company, 1 Vese, Jr., 388; Fabrigas vs. Mostyn, 1 Cowper, 161.
Mr. Vattel, writing as early as 1797, in discussing the question of the right of a nation or government to prevent foreigners from entering its territory or to expel them, said:
"Every nation has the right to refuse to admit a foreigner into the country when he can not enter without putting the nation in evident danger or doing it manifest injury. What it (the nation) owes to itself, the care of its own safety, gives to it this right; and in virtue of its national liberty, it belongs to the nation to judge whether its circumstances will or will not justify the admission of the foreigner. Thus, also, it has a right to send them elsewhere if it has just cause to fear that they will corrupt the manners of the citizens; that they will create religious disturbances or occasion any other disorder contrary to the public safety. In a word, it has a right, and is even obliged in this respect, to follow the rules which prudence dictates." (Vattel's Law of Nations, book 1, chapter 19, sees. 230, 231.)Mr. Ortolan said:
"The government of each State has always the right to compel foreigners who are found within its territory to go away, by having them taken to the frontier; this right is based upon the fact that the foreigner, not making a part of the nation, his individual reception into the territory is a matter of pure permission and simple tolerance and creates no obligation. The exercise of this right may be subject, doubtless, to certain forms prescribed by the domestic laws of each country; but the right exists, none the less, universally recognized and put in force. In France, no special form is now prescribed in this matter; the exercise of this right of expulsion is wholly left to the executive power." (Ortolan, Diplomatic de la Mer, book 2, chapter 14, 4th edition, p. 297.)Mr. Phillimore said:
"It is a received maxim of international law that the government of the State may prohibit the entrance of strangers into the country and may, therefore, regulate the conditions under which they shall be allowed to remain in it or may require or compel their deportation from it." (1 Phillimore's International Law, 3d edition, chapter 10, sec. 220.)Mr. Taylor said:
"Every independent State possesses the right to grant or refuse hospitality. Undoubtedly such a State possesses the power to close the door to all foreigners who, for social, political or economical reasons, it deems expedient to exclude; and for like reasons it may subject a resident foreigner or a. group of them to expulsion, subject, of course, to such retaliatory measures as an abuse of the excluding or expelling power may provoke." (Taylor, International Public Law, p. 231.)Mr. Oppenheim said:
"Just as a State is competent to refuse admission to foreigners, so it is in conformity with its territorial supremacy competent to expel at any moment a foreigner who has been admitted into its territory. And it matters not whether the respective individual is only on a temporary visit or has settled down for professional or business purposes on that territory, having taken his domicile thereon.Mr. Martens said:
"It has also been held that a State may expel a foreigner who has been residing within its territory for some length of time and has established a business there, and that his only remedy is to have his home State, by virtue of the right of protection of a State over its citizens abroad, to make diplomatic representations to the expelling State and ask for the reasons for such expulsion; but the right being inherent in the sovereignty or State, it can expel or deport even domiciled foreigners without so much as giving the reasons therefor. The expulsion of aliens from a State may be an unfriendly act to the State of the individual expelled, but that fact does not constitute the expulsion an illegal act, the law of nations permitting such expulsions." (Oppenheim, International Law, sec. 323.)
"The government of each State has always a right to compel foreigners who live within its territory to go away, having them conveyed to the frontier. This right has its cause in the fact that as a stranger does not form a part of a nation, his individual admission into the country is merely discretional, a mere act of tolerance, in no way obligatory. The practice of this right might be subject to certain forms prescribed by the international laws of each country, but the right is always universally acknowledged and put into practice." (Martens's Droit des Gens, book 3, p. 91.)This implied or inherent right in the Government to prevent aliens from entering its territory or to deport or expel them after entrance, has not only been recognized by the courts and eminent writers of international law, but has also been recognized many times by the executive and legislative branches of the Government. Acts of the Congress of the United States, of the Parliament of Great Britain, as well as the British colonial parliaments, and royal decrees might be cited in support of this doctrine. One of the very early Acts of the Congress of the United States (A, D. 1798) authorized the President of the United States to order all such aliens as he should judge to be dangerous to the peace and safety of the country, or that he should have reasonable grounds to suspect of being concerned in any treasonable machinations against the Government, to deport out of the territory of the United States within such time as he should express in his order. And it was further provided that if any such aliens, so sent out, should return without the permission of the President, they should be imprisoned so long as, in the opinion of the President, the public safety might require.
Mr. Frelinghuysen, as Secretary of State of the United States (1882), said:
"This Government (United States) can not contest the right of foreign governments to exclude, on policy or other grounds, American citizens from their shores."Mr. Gresham, Secretary of State of the United States, in speaking of the right of Hayti to expel from its borders American citizens, said:
"This government does not propose to controvert the principle of international law which authorizes every independent State to expel objectionable foreigners or class of foreigners from its territory. The right of expulsion or exclusion of foreigners is one which the United States, as well as many other countries, has, upon occasions, exercised when deemed necessary in the interest of the Government or its citizens. * * *Many other cases might be cited showing the arbitrary manner in which aliens have, from time to time, been deported.
"Every State is authorized, for reasons of public order, to expel foreigners who are temporarily residing in its territory, but when a Government expels foreigners without cause and in an injurious manner, the State of which the foreigner is a citizen has a right to prefer a claim for this violation of international law and to demand satisfaction, if there is occasion for it."
Expulsion is a police measure, having for its object the purging of the State of obnoxious foreigners. It is a preventive, not a penal process, and it can not be substituted for criminal prosecution and punishment by judicial procedure.
The right of deportation or expulsion is generally exercised by the executive head of the Government, sometimes with and sometimes without express legislation. Sometimes it is delegated in particular instances to the heads of some departments of the Government. (Act No. 265, U. S. Philippine Commission.)
In Canada the right was given by statute to the attorney- general of Canada. (Dominion Act, 60th and 61st Victoria, chap. 11, sec. 6, as amended by 1st Edward 7th, chap. 13.)
It having been established that every government has the implied or inherent right to deport or expel from its territory objectionable aliens, whenever it is deemed necessary for the public good, we deem it pertinent to inquire:
II.
IN WHAT DEPARTMENT OR DEPARTMENTS OP THE INDEPENDENT DEPARTMENTS OF A GOVERNMENT DOES THIS INHERENT POWER EXIST?The rule of law permitting nations to deport or expel objectionable aliens, while international in its character, is yet, nevertheless, in its application, executed by the particular nation desiring to rid itself of such aliens and must, therefore, be carried into operation by that department of the government charged with the execution of the nation's laws. Its enforcement belongs peculiarly to the political department of the government. The right is inherent in the government and, as Mr. Justice Field said, "can not be granted away or restrained on behalf of anyone." It being inherent in the political department of the government, it need not be defined by express legislation, although in some States the legislative department of the government has prescribed the condition and the method under which and by which it shall be carried into operation. The mere absence of legislation regulating this inherent right to deport or expel aliens is not sufficient to prevent the chief executive head of the government, acting in his own sphere and in accordance with his official duty, to deport or expel objectionable aliens, when he deems such action necessary for the peace and domestic tranquillity of the nation. One of the principal duties of the chief executive of a nation is to preserve peace and order within the territory. To do this he is possessed of certain powers. It is believed and asserted to be sound doctrine of political law that if in a particular case he finds that there are aliens within his territory whose continued presence is injurious to the public interest, he may, even in the absence of express law, deport them. The legislative department of the government is not always in session. It may require days and even months for that department to assemble. Sudden and unexpected conditions may arise, growing out of the presence of obnoxious and untrustworthy foreigners, which demand immediate action. Their continued presence in the country may jeopardize even the very life of the government. To hold that, in view of the inherent power of the government, the chief executive authority was without power to expel such foreigners, would be to hold that at times, at least, the very existence and life of the government might be subjected to the will of designing and obnoxious foreigners, who were entirely out of sympathy with the existing government, and whose continued presence in the territory might be for the purpose of destroying such government.
Suppose, for example, that some of the inhabitants of the thickly populated countries situated near the Philippine Archipelago, should suddenly decide to enter the Philippine Islands and should, without warning appear in one of the remote harbors and at once land, for the purpose of stirring up the inhabitants and inciting dissensions against the present Government. And suppose, for example, that the Legislature was not in session; could it be denied that the Governor-General, under his general political powers to protect the very existence of the Government, has the power to take such steps as he may deem wise and necessary for the purpose of ridding the country of such obnoxious and dangerous foreigners? To admit such a doctrine would be to admit that every government was without the power to protect its own life, and at times might be subjected to the control of people who were out of sympathy with the spirit of the Government and who owe no allegiance whatever to it, and are under no obligations to assist in its perpetuity.
It has never been denied, in a government of separate and independent departments, executive, legislative, and judicial, that the legislature may prescribe the methods or conditions for the exercise of this power, but the mere absence of such rules neither proves that the power does not exist nor that the executive head of the government may not adopt for himself such methods as he may deem advisable for the public good and the public safety. He can only be controlled in the conditions and methods as to when and how the powers shall be exercised. The right itself can not be destroyed or bartered away. When the power is once created and no rules are adopted for its enforcement, the person or authority who has to exercise such power has the right to adopt such sane methods for carrying the power into operation as prudence, good judgment and the exigencies of the case may demand; and whatever rules and regulations may be adopted by the person or department possessing this power for carrying into operation this inherent power of the government, whether they are prescribed or not, will constitute due process of law. (See speech delivered by John Marshall in the House of Representatives of the United States, Annals of the Sixth Congress, 595; United States vs. Robins, Fed. Cas. No. 16,175, 27 Fed. Cas., 825; Moyer vs. Peabody, 212 U. S., 78; Murray vs. Hoboken Land & Improvement Co., 18 How., 272; U. S. vs. Ju Toy, 198 U. S., 253, 263.)
We have said that the power to deport or expel foreigners pertains to the political department of the government. Even in those jurisdictions where the conditions under which persons may be deported are left to the courts to decide, even then the actual deportations must be carried into operation by the executive department of the government. The courts have no machinery for carrying into operation their orders except through the executive department.
In the present case the fact is charged and admitted that the defendant was deported by W. Cameron Forbes as Governor-General of the Philippine Islands, acting for the Government. Mr, Forbes is "the chief executive authority in all civil affairs of the Government of the Philippine Islands" and as such it is his duty to enforce the laws. It is our opinion and we so hold that as such "executive authority" he had full power, being responsible to his superiors only, to deport the defendant by whatever methods his conscience and good judgment might dictate. But even though we are wrong in our conclusions that he is the possessor of the inherent right to deport aliens, and it is true that the power belongs to the legislative department to prescribe rules and regulations for such deportation, yet, in the present case, the legislative department expressly recognized his authority and approved his acts by a resolution adopted by it on the 19th of April, 1910. This power of the legislature to expressly ratify acts alleged to be illegal by the executive department, has been expressly recognized by the Supreme Court of the United States in the case of United States vs. Heinszen & Co. (206 U. S., 370); O'Reilly de Camara vs. Brooke, Major-General (142 Fed. Rep., 859). An act done by an agent of the Government, though in excess of his authority, being ratified and adopted by the Government, is held to be equivalent to previous authority. (142 Federal Reporter, supra; Phillips vs. Eyre, Law Reports, 6 Queen's Bench Cases, 1; Secretary of State vs. Kamachee Baye Sahaba, 13 Moore's Privy Council, 22; O'Reilly de Camara vs. Brooke, Major-General, 209 U. S., 54.)
It is also admitted that the act of the Governor-General in deporting the defendant was in compliance with a request made by the official representative of the Imperial Government of China. It would seem, therefore, that said request, in the absence of any other power, would be sufficient justification of his act. The mere fact that a citizen or subject is out of the territory of his country does not relieve him from that allegiance which he owes to his government, and his government may, under certain conditions, properly and legally request his return. This power is expressly recognized by the Congress of the United States. (See Act of Congress of January 30, 1799, 1 Statutes at Large, 613; sec. 5533, Revised Statutes of United States; sec. 5, United States Penal Code, adopted March 4, 1909.)
It was strenuously argued at the hearings of this cause that the defendant was deported without due process of law, in fact, that was the burden of the argument of attorney for the defendant.
"Due process of law, in any particular case, means such an exercise of the powers of the government as the settled maxims of law permit and sanction and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs." (U. S. vs. Ling Su Fan, 10 Phil. Rep., 104, 111; Mover vs. Peabody, 212 U. S., 78; Murray vs. Hoboken Land & Improvement Co., 18 How., 272; U. S. vs. Ju Toy, 198 U. S., 253, 263.)An examination of the methods by which the defendant was deported, as stated by the attorney for the defendant, as compared with the numerous cases of deportation by the various governments of the world, shows that the method adopted in the present case was in accordance with the methods adopted by governments generally and the method sanctioned by international law. (See Moore's International Law Digest, vol.4.)
It has been repeatedly decided when a government is dealing with the political rights of aliens that it is not governed by that "due process of law" which governs in dealing with the civil rights of aliens. For instance, the courts of the United States have decided that in the deportation of an alien he is not entitled to right of trial by jury, the right of trial by jury being one of the steps in the "due process of law" in dealing with civil rights. (Fong Yue Ting vs. U. S., 149 U. S., 698; U. S. vs. Wong Dep Ken, 57 Fed. Rep., 206; U. S. vs. Wong Sing, 51 Fed. Rep., 79; In re Ng Loy Hoe, 53 Fed. Rep., 914.)
In the case of Moyer vs. Peabody, Governor of Colorado (212 U. S., 78), Mr. Justice Holmes, speaking for the court upon the question of what is "due process of law," said:
"But it is familiar that what is due process of law depends on circumstances. It varies with the subject-matter and the necessities of the situation. Thus, summary proceedings suffice for taxes and executive decisions for exclusion from the country."Neither will the fact that an alien residing in the territory holds a certificate of admission justify his right to remain within such territory as against an act of the executive department of the Government which attempts to deport him. (Chae Chan Ping vs. U. S., 130 U. S., 581, 36 Fed. Rep., 431.) The certificate is a mere license and may be revoked at any time. An alien's right to remain in the territory of a foreign government is purely a political one and may be terminated at the will of such government. No cases have been found, and it is confidently asserted that there are none, which establish a contrary doctrine.
Having established, as we believe:
(a) That a government has the inherent right to deport aliens whenever the government believes it necessary for the public good; and
(b) That the power belongs to the political department of the government and in the Philippine Islands to the Governor-General, who is "the chief executive authority in all civil affairs" in the Government of the Philippine Islands: We deem it pertinent to inquire:
III.
WHETHER OR NOT THE COURTS CAN TAKE JURISDICTION IN ANY CASE RELATING TO THE EXERCISE OP THIS INHERENT POWER IN THE DEPORTATION OP ALIENS, FOR THE PURPOSE OF CONTROLLING THIS POWER VESTED IN THE POLITICAL DEPARTMENT OF THE GOVERNMENT.The question whether or not the courts will ever intervene or take jurisdiction in any case against the chief executive head of the government is one which has been discussed by many eminent courts and learned authors. They have been unable to agree. They have not been able to agree even as to what is the weight of authority, but they all agree, when the intervention of the courts is prayed for, for the purpose of controlling or attempting to control the chief executive head of the government in any matter pertaining to either his political or discretionary duties, that the courts will never take jurisdiction of such case. The jurisdiction is denied by the courts themselves on the broad ground that the executive department of the government is a separate and independent department, with its duties and obligations, the responsibility for the compliance with which is wholly upon that department. In the exercise of those duties the chief executive is.alone accountable to his country in his political character and to his own conscience. For the judiciary to interfere for the purpose of questioning the manner of exercising the legal, political, inherent duties of the chief executive head of the government would, in effect, destroy the independence of the departments of the government and would make all the departments subject to the judicial. Such a conclusion or condition was never contemplated by the organizers of the government. Each department should be sovereign and supreme in the performance of its duties within its own sphere, and should be left without interference in the full and free exercise of all such powers, rights, and duties which rightfully, under the genius of the government, belong to it. Each department should be left to interpret and apply, without interference, the rules and regulations governing it in the performance of what may be termed its political duties. Then for one department to assume to interpret or to apply or to attempt to indicate how such political duties shall be performed would be an unwarranted, gross, and palpable violation of the duties which were intended by the creation of the separate and distinct departments of the government.
It is no answer to this conclusion to say that the chief executive authority may violate his duties and the constitutional guaranties of the people, or that injustice may be done, or that great and irreparable damage may be occasioned without a remedy. The judicial is not the only department of the government which can do justice or perpetually conserve the rights of the people. The executive department of the government is daily applying laws and deciding questions which have to do with the most vital interests of the people. (Marbury vs. Madison, 1 Cranch, U. S., 152; State of Miss. vs. Johnson, 4 Wall., 475, 497; Hawkins vs. The Governor, 1 Ark., 570 (33 Am. Dec, 346); Sutherland vs. The Governor, 29 Mich., 320; People vs. Bissell, 19 Ill., 229 (68 Am. Dec, 591); State vs. Warmoth, 22 La. An., 1.)
In the case of State vs. Warmoth (22 La. An., 1) Mr. Justice Taliaferro said (pp. 3, 4):
"He [the governor] must be presumed to have this discretion, and the right of deciding what acts his duties require him to perform; otherwise his functions would be trammeled, and the executive branch of the government made subservient, in an important feature, to the judiciary.
* * * * * * * * *
"When the official acts to be performed by the executive branch of the government are divided into ministerial and political, and courts assume the right to enforce the performance of the former, it opens a wide margin for the exercise of judicial power. The judge may say what acts are ministerial and what political. Circumstances may arise and conditions may exist which would require the Governor of a State, in the proper exercise of his duty, and with regard to the interests of the State, not to perform a ministerial act. Is the judge to determine his duty in such case, and compel him to perform it? The reasons of the executive for the nonperformance of an act, the judge may never know, or, if brought to his knowledge, he may review and overrule them, and, in so doing, assume political functions. He would determine, in such a case, the policy of doing the act. The legislator himself, who prescribed the act, might hold the executive harmless, while the judge condemned him."We believe that there are certain inherent powers vested in the chief executive authority of the State which are universally denominated political, which are not defined either by the constitution or by the laws. We believe that those inherent powers would continue to exist for the preservation of the life and integrity of the State and the peace and quietude of its people, even though the constitution were destroyed and every letter of the statutes were repealed. This must necessarily be true, or, otherwise, the hands of the chief executive authority of the government might, at times, be paralyzed in his efforts to maintain the existence of the government. The United States Government never intended to create in the Philippine Islands a government without giving it adequate power to preserve itself and to protect the highest interests of the people of the Archipelago.
These inherent, inalienable, and uncontrollable powers which must necessarily exist in the absence of express law in the chief executive authority of a nation have been clearly demonstrated by the action of the President of the United States, notably in putting down what is known as the "Whisky Rebellion" in the State of Pennsylvania, in the case of the protection of a.judge of the United States (In re Neagle, 135 U. S., 1, 64), as well as in the case of the uprising of labor organizations in the city of Chicago under the direction and control of Mr. Debbs (In re Debbs, 158 U.S., 568).
These powers and the right to exercise them according to his own good judgment and conscience and his acts in pursuance of them are purely political and are not subject to control by any other department of the government. It is believed that even the Legislature can not deprive him of the right to exercise them.
Upon the question of the right of the courts to interfere with the executive, this court has already pronounced, in the case of In re Patterson (1 Phil. Rep., 93) that:
"Superior to the law which protects personal liberty and the agreements which exist between nations for their own interests and the benefit of their respective subjects is the supreme and fundamental right of each state to self-preservation and the integrity of its dominion and its sovereignty. Therefore it is not strange that this right should be exercised in a sovereign manner by the executive power to which is entrusted, in the very nature of things, the preservation of so essential a right, without interference on the part of the judicial power"This court has also announced the doctrine, in the case of Barcelon vs. Baker et al. (5 Phil. Rep., 87) that:
"Under the form of government established in the Philippine Islands one department of the Government has no power or authority to interfere in the acts of another, which acts are performed within the discretion of the other department."In the case of Martin vs. Mott it was decided by the Supreme Court of the United States, whenever the performance of a political duty devolved upon the chief executive authority of a nation and when he had decided as to the method of performing that duty, that no court could question his decision. We are of opinion and so hold, whenever the authority to decide a political question devolves upon any separate and distinct department of the Government, which authority imposed upon that department the right to decide whether the exigencies for its exercise have arisen, and when that department had decided, that that decision is conclusive upon all other persons or departments.
This doctrine has been further recognized by this court in the case of Merchant vs. Del Rosario (4 Phil. Rep., 316) as well as in the case of Debrunner vs. Jaramillo (12 Phil. Rep., 316).
Under the system of government established in the Philippine Islands the Governor-General is "the chief executive authority," one of the coordinate branches of the Government, each of which, within the sphere of its governmental powers, is independent of the others. Within these limits the legislative branch can not control the judicial nor the judicial the legislative branch, nor either the executive department. In the exercise of his political duties the Governor-General is, by the laws in force in the Philippine Islands, invested with certain important governmental and political powers and duties belonging to the executive branch of the Government, the due performance of which is entrusted to his official honesty, judgment, and discretion. So far as these governmental or political or discretionary powers and duties which adhere and belong to the Chief Executive, as such, are concerned, it is universally agreed that the courts possess no power to supervise or control him in the manner or mode of their discharge or exercise. (Hawkins vs. The Governor, supra; People vs. The Governor, supra; Marbury vs. Madison, supra; Meecham on Public Onlcers, sec. 954; In re Patterson, supra; Barcelon vs. Baker, supra.)
It may be argued, however, that the present action is one to recover damages against the Governor and the others mentioned in the cause, for the illegal acts performed by them, will not an action for the purpose of in any way controlling or restraining or interfering with their political or discretionary duties. No one can be held legally responsible in damages or otherwise for doing in a legal manner what he had authority, under the law, to do. Therefore, if the Governor-General had authority, under the law, to deport or expel the defendants, and the circumstances justifying the deportation and the method of carrying it out are left to him, then he can not be held liable in damages for the exercise of this power. Moreover, if the,courts are without authority to interfere in any manner, for the purpose of controlling or interfering with the exercise of the political powers vested in the chief executive authority of the Government, then it must follow that the courts can not intervene for the purpose of declaring that he is liable in damages for the exercise of this authority. Happily we are not without authority upon this question. This precise question has come before the English courts on several different occasions.
In the cases of The Lord-Lieutenant of Ireland (Governor of Ireland), Tandy vs. Earl of Westmoreland (27 State Trials, 1246), and Luby vs. Lord Wodehouse (17 Iredell, Common Law Reports, 618) the courts held that the acts complained of were political acts done by the lord-lieutenant in his official capacity and were assumed to be within the limits of the authority delegated to him by the Crown. The courts of England held that, under the circumstances, no action could lie against the lord-lieutenant, in Ireland or elsewhere.
In the case of Chun Teeong Toy vs. Musgrave (Law Reports, Appeal Cases 1891, p. 272) the plaintiff, a Chinese subject, brought an action for damages against the defendant as collector of customs of the State of Victoria in Australia, basing his action upon the refusal of the Victorian government to permit him to enter that State. Upon a full consideration the Privy Council said:
"Their Lordships can not assent to the proposition that an alien refused permission to enter British territory can, in an action against the British Crown, compel the decision of such matters as these, involving delicate and difficult constitutional questions affecting the respective rights of the Crown and Parliament and the relation of this country to her self-governing colonies. When once it is admitted that there is no absolute and unqualified right of action on the behalf of an alien refused permission to enter British territory, their Lordships are of opinion that it would be impossible, upon the facts which the demurrer admits, for an alien to maintain an action."If it be true that the Government of the Philippine Islands is a government invested with "all the military, civil, and judicial powers necessary to govern the Philippine Islands until otherwise provided by Congress" and that the Governor-General is invested with certain important political duties and powers, in the exercise of which he may use his own discretion, and is accountable only to his superiors in his political character and to his own conscience, and the judicial department of the Government is without authority to interfere in the control of such powers, for any purpose, then it must follow that the courts can not take jurisdiction in any case against him which has for its purpose the declaration that such acts are illegal and that he is, in consequence, liable for damages. To allow such an action would, in the most effective way possible, subject the executive and political departments of the Government to the absolute control of the judiciary. Of course, it will be observed that we are here treating only with the political and purely executive duties in dealing with the political rights of aliens. The conclusions herein reached should not be extended to cases where vested rights are involved. That question must be left for future consideration.
From all the foregoing facts and authorities, we reach the following conclusions:
First. That the Government of the United States in the Philippine Islands is a government possessed with "all the military, civil, and judicial powers necessary to govern the Philippine Islands" and as such has the power and duty, through its political department, to deport aliens whose presence in the territory is found to be injurious to the public good and domestic tranquillity of the people.
Second. That the Governor-General, acting in his political and executive capacity, is invested with plenary power to deport obnoxious aliens whose continued presence in the territory is found by him to be injurious to the public interest, and in the absence of express and prescribed rules as to the method of deporting or expelling them, he may use such methods as his official judgment and good conscience may dictate.
Third. That this power to deport or expel obnoxious aliens being invested in the political department of the Government, the judicial department will not, in the absence of express legislative authority, intervene for the purpose of controlling such power, nor for the purpose of inquiring whether or not he is liable in damages for the exercise thereof.
Therefore the lower court was without jurisdiction to consider the particular questions presented in the cause, and it is hereby ordered and decreed that the writ of prohibition shall be issued, directed to the defendant, the Hon. A. S. Crossfield, perpetually prohibiting him from proceeding in the cause in which Chuoco Tiaco (alias Choa Tea) is plaintiff and W. Cameron Forbes, Charles R. Trowbridge, and J. E. Harding are defendants, and to dismiss said action, as well as to enter an order dissolving the injunction granted by him in said cause against the said defendants.
It is further ordered that a decree be entered overruling the demurrer presented in this cause, and ordering that said action be dismissed, as well as a decree making perpetual the injunction heretofore granted by Mr. Justice Trent.
It is so ordered, without any finding as to costs.
Arellano, C. J., and Torres, J., concur.
CONCURRING
MORELAND, J., with whom concurs TRENT, J.,
The nature of this action has been fully set forth, by way of quoting the entire proceedings, in the opinion of Mr. Justice Johnson. It is unnecessary again to present the facts. I differ, however, from that portion of the relation of the facts in that opinion, and the conclusion drawn therefrom, which touches the form of action commenced by Chuoco Tiaco against the Governor-General, and in which it is asserted that "thus clearly it appears that the action was against the defendants in their official capacity." In my judgment, the contrary, namely, that the action was against the Governor-General personally for acts which he sought to perform in his official capacity, clearly appears. The words "successors in office," as used in the complaint, refer only to the remedy by injunction and not to the damages prayed for by reason of the expulsion. The action no less certainly is directed against the other defendants personally.
When the case was decided in this court upon the merits, Mr. Justice Trent and myself signed the following opinion:
"I concur in so much of the opinion of Mr. Justice Johnson as holds that the action in the Court of First Instance from which this controversy arises can not be maintained against the Governor-General. With the reasons given and the arguments advanced in that opinion for the support of that conclusion I disagree. I can not assent to the theory upon which the opinion is framed nor to the reasons and arguments advanced in support thereof. I understand that the action in the court below, as appears from the records of that court and the concession of all parties interested, is one against1 the Governor-General personally for acts which he assumed to perform in his official capacity. That the Governor-General acted in the honest belief that he had the power to perform the acts complained of is nowhere questioned. This being so, whether or not he actually had such powers is, as I view this case, immaterial. I base my concurrence in the result solely upon the theory that the Governor-General, in his official capacity, being one of the coordinate branches of the Government (U. S. vs. Bull, 8 Off. Gaz., 271) [1], is entitled to the same protection against personal actions for damages by those who feel themselves aggrieved by acts which he performs in carrying out what he honestly deems to be the duties of his office as are the other coordinate branches of the Government. It is undoubted that neither the Legislature, nor a member thereof is liable in damages for any act which it performs, believing that it had the power so to act, even though it ultimately appears that such act is entirely outside of its powers and jurisdiction and is wholly and utterly void. It is equally undoubted, in my judgment, that neither the courts, constituting another coordinate branch of the Government, nor members thereof, are, under similar circumstances, liable in damages. (Bradley vs. Fisher, 80 U. S., 335; Spalding vs. Vilas, 161 U. S., 481, 493, 494.) If the want of jurisdiction was known to the court &t the time it acted, another question might be presented.To that opinion we still adhere. A thorough reexamination of the questions involved and of the principles of law which, we believe, must be applied in their solution adds to our conviction that the conclusions therein reached are sound and should guide the court in the disposition of the case before it. The principles enunciated in that opinion were not, however, presented or discussed by the attorneys, or either of them, in the extended and elaborate arguments which they made, both orally and in writing, to this court. A motion for a rehearing having been made and the objections and arguments of counsel having been particularly directed against the conclusions presented in our former opinion, we deem it advisable to present here, with some elaboration and detail, the reasons which impelled us to the conclusions reached therein.
"There comes to my mind no good reason why the same principles of nonliability should not be applied to the Chief Executive of the Government. Indeed the reasons and arguments of the courts and text writers advanced to support the principle of nonliability of legislatures and courts apply with even greater force to the Executive.
"The Governor-General, in determining whether or not he has the power or jurisdiction to perform a. certain act, should be protected against personal actions against him for damages as completely and effectively as he unquestionably is when, jurisdiction being conceded, he honestly acts in excess thereof. There is no dissimilarity in the quality of the mental process employed or the judgment brought to bear and exercised in arriving at a conclusion in the two cases.
"This theory does not in any way weaken the power of this court, in a proper action, to determine the legality of all official acts once performed and the legal consequences flowing therefrom. The necessity for such determination does not, however, arise in this case."
In this opinion we discuss the subject, largely speaking, in two aspects.
First, the nature and quality of the functions exercised by the Governor-General in arriving at the conclusion that he had the right to expel Chuoco Tiaco. Our conclusion upon this branch of the subject is that the act was in the nature of a judicial act, the functions exercised were judicial in their quality, and that he should have the same protection against civil liability in exercising this function that would be accorded to a court under similar circumstances.
Second, the fundamental nature and attributes of the office of Governor-General, and whether or not public policy requires that there be applied to him and his acts the same principles which govern the liability of the members of the Legislature and of the judiciary. Our conclusion upon this branch of the case is that the Government here is one of three departments - executive, legislative, and judicial - that the office of Governor-General is one of the coordinate branches of the Government, and that the same public policy which relieves a member of the Legislature or a member of the judiciary from personal liability for their official acts also relieves the Governor-General in like cases.
It has been settled by previous decisions of this court that the Government established in the Philippine Islands is one of three departments - legislative, executive and judicial. In the case of the U. S. vs. Bull [1] (8 Off. Gaz,, 271, 276), it is said:
"Within the limits of its authority the Government of the Philippines is a complete governmental organism with executive, legislative, and judicial departments exercising the functions commonly assigned to such departments. The separation of powers is as complete as in most governments. In neither Federal nor State governments is this separation such as is implied in the abstract statement of the doctrine. For instance, in the Federal Government the Senate exercises executive powers, and the President to some extent controls legislation through the veto power. In a State the governor is not a member of the legislative body, but the veto power enables him to exercise much control over legislation. The Governor-General, the head of the executive department in the Philippine Government, is a member of the Philippine Commission, but as executive he has no veto power. The President and Congress framed the Government on the model with which Americans are familiar, and which has proved best adapted for the advancement of the public interests and the protection of individual rights and privileges." (Lope Severino vs. The Governor-General and Provincial Board of Occidental Negros, 8 Off. Gaz., 1171.)[1]The instructions of the President of the United States to the Philippine Commission, dated April 7, 1900, contain this statement:
"Until the complete transfer of control (from the military to the civil authorities) the Military Governor will remain the chief executive head of the Government of the Islands, and will exercise the executive authority now possessed by him and not herein expressly assigned to the Commission, subject, however, to the rules and orders enacted by the Commission in the exercise of the legislative powers conferred upon them."Said instructions also include the following:
"Beginning with the 1st day of September, 1900, the authority to exercise, subject to my approval, through the Secretary of War, that part of the power of government in the Philippine Islands which is of a legislative nature is to be transferred from the Military Governor of the Islands to this Commission, to be thereafter exercised by them in the place and stead of the Military Governor, under such rules and regulations as you shall prescribe, until the establishment of the civil central government for the Islands contemplated in the last foregoing paragraph, or until Congress shall otherwise provide. Exercise of this legislative authority will include the making of rules and orders, having the effect of law, for the raising of revenue by taxes, customs duties, and imposts; the appropriation and expenditure of public funds of the Islands; the establishment of an educational system throughout the Islands; the establishment of a system to secure an efficient civil service; the organization and establishment of courts; the organization and establishment of municipal and departmental governments, and all other matters of a civil nature for which the Military Governor is now competent to provide by rules or orders of a legislative character."The powers conferred upon the Military Governor are contained in the following order of the President to General Merritt, dated May 19, 1898:
"Though the powers of the military occupant are absolute and supreme, and immediately operate upon the political condition of the inhabitants, the municipal laws of the conquered territory, such as affect private rights of person and property, and provide for the punishment of crime, are considered as continuing in force, so far as they are compatible with the new order of things, until they are suspended or superseded by the occupying belligerent; and in practice they are not usually abrogated, but are,allowed to remain in force, and to be administered by the ordinary tribunals, substantially as they were before the occupation. This enlightened practice is, so far as possible, to be adhered to on the present occasion."The Spooner amendment to the Army appropriation bill, passed March 2, 1901, provided that -
"All military, civil, and judicial powers necessary to govern the Philippine Islands * * * shall until otherwise provided by Congress be vested in such person and persons, and shall be exercised in such manner, as the President of the United States shall direct, for the establishment of civil government, and for maintaining and protecting the inhabitants of said Islands in the free enjoyment of their liberty, property, and religion."On the 21st day of June, 1901, the President, in an order appointing a Civil Governor, said:
"On and after the 4th day of July, 1901, until it shall be otherwise ordered, the President of the Philippine Commission will exercise the executive authority in all civil affairs in the government of the Philippine Islands heretofore exercised in such affairs by the Military Governor of the Philippines, and to that end the Hon. William H. Taft, President of the said Commission, is hereby appointed Civil Governor of the Philippine Islands. Such executive authority will be exercised under, and in conformity to, the instructions to the Philippine Commissioners, dated April 7, 1900, and subject to the approval and control of the Secretary of War of the United States. The municipal and provincial civil governments, which have been, or shall hereafter be, established in said Islands, and all persons performing duties appertaining to the offices of civil government in said Islands, will, in respect of such duties, report to the said Civil Governor.On the 1st day of July, 1902, Congress passed an Act containing the following:
"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 Military Governor of the Philippines is hereby relieved from the performance, on and after the said 4th day of July, of the civil duties herein before described, but his authority will continue to be exercised as heretofore in those districts in which insurrection against the authority of the United States continues to exist, or in which public order is not sufficiently restored to enable provincial civil governments to be established under the instructions to the Commission dated April 7, 1900."
"That the action of the President of the United States in creating the Philippine Commission and authorizing said Commission to exercise the powers of government to the extent and in the manner and form and subject to the regulations and control set forth in the instructions of the President to the Philippine Commission, dated April seventh, nineteen hundred, and in creating the offices of Governor-General and Vice-Governor-General of the Philippine Islands, and authorizing said Governor-General and Vice-Governor-General to exercise the powers of government to the extent and in the manner and form set forth in the Executive Order dated June twenty-first, nineteen hundred and one, * * * is hereby approved, ratified, and confirmed, and until otherwise provided by law the said Islands shall continue to be governed as thereby and herein provided."From these citations it will be seen that the Governor-General is the executive head of the Government; that he has full, plenary, and perfect powers to execute the laws. Obviously, therefore, the primal necessity laid upon him, when, in a given case, he believes himself called upon to act, is to determine whether there is a law under which he may act - whether, in other words, he is authorized to act in that particular case. One occupying that high position owes a heavy obligation to the State. A careful and conscientious man, intensely anxious to meet the full requirements of this obligation, will inevitably dedicate his first consideration to the determination of what that obligation is. From the viewpoint of the governors of the American States, this is not, generally speaking, a difficult question. There conditions are settled. Society is old. Questions wholly new rarely arise. The constitutions confer the powers generally. The statutes specify them. The source of power is the constitution. The guide is the statutes. Both are written. They constitute the governor's textbook of power and procedure - specific, definite, certain. In the Philippine Islands the situation is different. Here, while the sources of the Governor-General's power are known, the extent and character of the power drawn from those sources are not so clear. Many times they are extremely difficult of ascertainment. The Government here is a new one. Its establishment is a step in ways heretofore untrodden by the American Republic. Its history furnished no example, its law no precedent. Her statesmanship had, up to the moment, framed no model from which a colony government might be fashioned ; the philosophy of her institutions presents no theories along which action may unhesitatingly proceed. There is no experience to guide the feet; no settled principles of colonial government and administration to which men may turn to justify their action or dissipate their doubts. Therefore, when, seeing, as he believed, certain Chinese aliens outraging the public conscience and seriously threatening public security, the Governor-General, believing that the only procedure adequate to protect the public interests was the expulsion of the offenders, began an investigation to determine whether or not he had the power of expulsion, he was confronted with a question of very serious intricacy and doubt. It was of the very greatest importance also. It is undoubted that he was thoroughly convinced that he was required, by the obligation of his office, to act if the law authorized it. He knew the strength and the justice of the proposition that a public official may not sit supinely by and see outraged the very things that he is bound by his oath to protect without exhausting every atom of his power and every resource of his office in an attempt to meet the situation as it ought to be met. His primal duty, under such circumstances, would be to determine what were his powers. The situation would imperatively demand that he ascertain what he could do. This involves, as already said, a determination upon which even a court, learned in the law and experienced in its construction, would enter with hesitation and misgivings. The question to be resolved is so manysided, its relations so intricate and numerous, the result of its determination so far-reaching, politically as well as legally, as to require the most careful consideration, the must exhaustive forethought. It involves not only the discussion and resolution of judicial as well as administrative questions of the most highly important kind, but also whether this Government has any power of expulsion whatever.
He has, then, as his initiatory resolution, to determine whether the Government of the Philippine Islands has the power of expulsion at all. As a condition precedent to the decision of that question he must adjudge (a) whether the Government here is in any sense a sovereign government; for the power to expel a domiciled foreigner is distinctively an attribute of sovereignty, to be exercised, under the uniform practice of the Government of the United States, only in exceptional cases and then under recognized methods of procedure. If he resolve that question in the negative, he must then decide (b) whether the Government of the United States has conferred upon the Government here those powers of sovereignty necessary to authorize such act.
It is needless to say that the very gravest questions are involved in these determinations. I do not stop to enumerate them or to present the serious difficulties which must be met in making them. It suffices to say that, when he has fully resolved those questions, he is then only on the threshold of his inquiry. Inasmuch as it might appear to one investigating the subject for the first time that the power of expulsion might be an inherent attribute of the Executive, as in some countries it is alleged to be, he must determine, first, the fundamental nature of his executive powers. He must decide whether, under the form of the government of which his office is the executive part, the power of expulsion belongs to the executive exclusively, or solely to the legislative, or whether it belongs to both, in combination with the judicial. This requires that he distinguish his executive functions from those which are legislative, upon the one hand, and those which are judicial, upon the other - a determination most difficult in many instances, not only by reason of the considerations above set forth, but also for the reason that, while the broad distinction is clear, nevertheless, frequently, the nature of one verges so closely upon that of the other as to render the difference between them subtle, uncertain, and elusive.
He must, second, judge whether that power, whatever it is and whatever its extent, came untrammeled to the Military Governor from the hands of the President, or whether he received it modified and restricted. This determination is necessary for the reason already pointed out that the Governor-General has only such executive power as had the Military Governor. This involves an interpretation of the order of the President above quoted - a very real judicial construction of its legal signification.
He must decide, third, whether the acts or orders by which executive power was given to the Military Governor and those by which that power was transferred to him do or do riot, by their very terms, define that power itself, its character and extent, or specify with more or less certainty the acts which he may perform under it. This again brings into play functions which approach the judicial so closely as to render them practically indistinguishable.
After all these investigations, interpretations, and constructions have been completed, there still remains to the Governor-General for solution one of the most difficult problems of all that of determining whether or not, irrespective of the foregoing considerations, there exists in force and vigor, under the American regime, a law of Spanish origin with which he may adequately meet the situation that faces him. As we have already seen, the instructions of the President of the United States to General Merritt, dated May 19, 1898, provide that -
"The municipal laws of the conquered territory, such as affect private rights of person and property, and provide for the punishment of crime, are considered as continuing in force, so far as they are compatible with the new order of things, until they are suspended or superseded by the occupying belligerent; and in practice they are not usually abrogated, but are allowed to remain in force, * * *"We have also seen that the proclamation of General Merritt on the capitulation of the Spanish forces in Manila also provides that -
"The municipal laws such as affect private rights of persons and property, regulate local institutions, and provide for the punishment of crime shall be considered as continuing in force, so far as compatible with the purposes of military government, and that they be administered through the ordinary tribunals substantially as before occupation, but by officials appointed by the government of occupation."It is evident that the character and contents of these two instruments necessitate that the Governor-General consider and decide when the laws and institutions of the United States are so incompatible with those of Spain in the Philippine Islands as to render the latter inoperative. This involves the consideration of the broad question of when the laws, customs, and institutions of a conquering nation are so incompatible with those of the conquered as to render them inoperative and ineffective by the mere change of sovereignty. This is a theme upon which writers have differed and concerning which the courts have not been free from uncertainties and even contradictions. The field opened by this necessity is so wide, the subject-matter so uncertain and elusive, and the principles involved so dependent for their application upon the personal equation of the one dealing with the subject that it is extremely easy for two men, equally honest and able, to differ widely on a result. Much depends upon the atmosphere in which one is placed and the point of view from which the subject is seen. The Supreme Court of the United States has just held unconstitutional and void the law relating to the falsification of an official document by a public official, a law of Spanish origin, which had generally been supposed, and had repeatedly been held by the Supreme Court of the Islands, to have survived the change of sovereignty. The great body of our laws is of Spanish origin and comes to us and is enforced by us upon the theory that it has survived. As a result, this court is continually called upon to adjudicate the question whether a given Spanish law is still in existence. Parties are unceasingly asserting rights of property and of person based upon such laws. These assertions are as frequently denied. It is a subject over which the best judgments differ and a question over which uncertainty continually holds sway. It was a question, however, which had to be met and solved by the Governor-General. It could not be avoided. It confronted him squarely and insistently, because a condition and not a theory was thrust in his face. It appears that, prior to the conquest and occupation of the Islands by the Americans, there was in force here a royal decree giving the Spanish Governor-General power, when certain conditions conjoined, to expel domiciled foreigners. That decree reads: