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G.R. No. L-3894 March 12, 1909JUAN IBAEZ DE ALDECOA, petitioner-appellant,vs.THE INSULAR GOVERNMENT, respondent-appellee.Del-Pan, Ortigas and Fisher for appellant.Attorney-General Villamor for appellee.

TORRES, J .:

On the 8th of March, 1904, in accordance with the new Land Registration Act, JuanIbaez de Aldecoa applied for the registration of his title to a parcel of land, 3,375square meters in extent, situated in the town of Surigao; a plan and technicaldescription of said parcel was attached to his application.

After the formalities of the law were complied with, and an opinion of the examiner oftitles opposing the request of the applicant, had been rendered, the Attorney-Generalby a writing dated March 21, 1905, objected to the registration applied for, allegingthat the land in question was the property of the Government of the United States,and is now under the control of the Insular Government; that the title of ownershipissued by the politico-militargovernor of Surigao, Mindanao, issued on the 19th ofJune, 1889, to Telesforo Ibaez de Aldecoa, antecessor of the petitioner with respectto the land in question, was entirely null and void, for the reason that said grant had

not been made in accordance with the laws then in force on the subject, and becausethe said governor had no authority to make such a grant; he prayed the court below todismiss the application with costs.

As the case stood the applicant, Aldecoa, on the 8th of April, 1905, amended hisformer petition, and relying upon the provisions of paragraph 5 and 6 of section 54 ofAct No. 926, alleged that at the time he requested the registration of the land inquestion, comprised in the plan then submitted, the aforesaid Act No. 926 was not yetin force, and as the latter affords better facilities for securing titles to propertyunprovided with them, as in the case with the land in question, the applicant availinghimself of the benefits granted by the said Act, prayed that the same be applied to theinscription of his land, inasmuch as it was included within paragraphs 5 and 6 ofsection 54, Chapter VI, thereof, and prayed the court to take into consideration the

amendment of his petition.

Evidence was adduced by the petitioner at the trial of the case, and on February 2,1907, the judge of the Court of Land Registration entered his decision in the matterand, in view of the opposition offered by the Insular Government denied the petitionwithout costs, and ordered the cancellation of the entry made of the said property inthe record under No. 408, folio 206 of volume 2 of the municipality of Surigao.

The applicant excepted to this decision and moved for a new trial; his motion wasoverruled to which he also excepted and presented the corresponding bill ofexceptions which was approved and submitted to this court.

The question set up in these proceedings by virtue of the appeal interposed bycounsel for Juan Ibaez de Aldecoa, is whether or not a parcel of land that is

susceptible of being cultivated, and, ceasing to be agricultural land, was convertedinto a building lot, is subject to the legal provisions in force regarding Governmentpublic lands which may be alienated in favor of private individuals or corporations.While from the remote time of the conquest of this Archipelago the occupation ormaterial possession together with the improvement and cultivation for a certainnumber of years, as fixed by the laws of the Indies, of given portions of vacantGovernment lands, was the method established by the Government to facilitate theacquisition thereof by private persons, later, by the royal decrees of June 25, 1880,and December 26, 1884, the system of composition with the State and that of sales

by public auction were instituted as the means of acquiring such lands.

In view of the difficulties which prevented the rapid dispatch of the proceedingsinstituted for this purpose, the royal decree of February 13, 1894, was promulgated,establishing the possessory information as the method of legalizing possession ofvacant Crown land, under certain conditions which were set out in said decree.

After the change of sovereignty, the Commission enacted Act No. 926, relating topublic lands, in accordance with the provisions of sections 13, 14, and 15 of the Act ofthe Congress of the United States of July 1, 1902, section 54, paragraph 6 of which(Act No. 926) is as follows:

SEC. 54. The following-described persons or their legal successors in right,

occupying public lands in the Philippine Islands, or claiming to own any suchlands or an interest therein, but whose titles to such lands have not beenperfected, may apply to the Court of Land Registration of the PhilippineIslands for confirmation of their claims and the issuance of a certificate oftitle therefor to wit:

xxx xxx xxx

6. All persons who by themselves or their predecessors in interest havebeen in the open, continuous, exclusive, and notorious possession andoccupation of agricultural public lands, as defined by said Act of Congress ofJuly first, nineteen hundred and two, under a bona fide claim of ownershipexcept as against the Government, for a period of ten years next precedingthe taking effect of this Act, except when prevented by a war or forcemajeure, shall be conclusively presumed to have performed all theconditions essential to a government grant and to have received the same,and shall be entitled to a certificate of title to such land under the provisionsof this chapter.

All applicants for lands under paragraph one, two, three, four, and five of thissection must establish by proper official records or documents that suchproceedings as are therein required were taken and the necessaryconditions complied with: Provided, however, That such requirements shallnot apply to the fact of adverse possession.

Given the above legal provisions and the data contained in the record, it is seen thatthe land, the registration of which is claimed, was of the class of vacant crown or


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public land which the State could alienate to private persons, and being susceptible ofcultivation, since at any time the person in possession desired to convert it intoagricultural land he might do so in the same manner that he had made a building lotof it, it undoubtedly falls within the terms of the said Act of Congress, as well as theprovisions of the abovecited section 54 and paragraph 6 thereof of Act No. 926, forthe reason that the said land is neither mining nor timber land.

We refrain from mentioning herein what originally was the nature of the land whereonwas built the greatest cities of the world; and confining ourselves to that on which the

cities and towns in these Islands were erected, it can not be denied that, at thecommencement of the occupation of this Archipelago by the Spaniards, and at thetime of the distribution of lands, the latter were rural and agricultural in their nature.Rural also were the old towns, the cradle and foundation of the present cities andlarge towns of the Philippines, and as the inhabitants increased, and added to thenumber of their dwellings, the farms gradually became converted into town lots.

In provincial towns, and in the suburbs of Manila, many houses are to be seen thatare erected on lots that form part of land used for agricultural purposes. If for the timebeing, and to the advantage of the possessors thereof, they have ceased to be suchagricultural lands, they may later on again become transformed into farming land and,by the industry of the owner, again be made to yield fruit.

Hence, any parcel of land or building lot is susceptible of cultivation, and may beconverted into a field, and planted with all kind of vegetation; for this reason, whereland is not mining or forestall in its nature, it must necessarily be included within theclassification of agricultural land, not because it is actually used for the purposes ofagriculture, but because it was originally agricultural and may again become so underother circumstances; besides, the Act of Congress contains only three classifications,and makes no special provision with respect to building lots or urban lands that haveceased to be agricultural land.

In the decision rendered by this court in the case ofMapa vs. The InsularGovernment, No. 3793 (10 Phil. Rep., 175), the legislation in force was interpreted ina similar sense.

It is not to be believed that it was the sense of the two sovereign powers that havesuccessively promulgated the said laws, to place those in possession of building lotsunder title of ownership in an anomalous, uncertain and insecure position, rendering itimpossible for them to obtain legal titles to the lands appropriated by them, anddenying them the care and protection of the law to which they were certainly entitledon account of the efforts they have made, both in their behalf, and for the benefit ofthe cities and towns in which they reside, contributing to the wealth and increase ofthe country.

In the case at bar we have to deal with laws that were enacted after almost all thetowns of this Archipelago were established, and it must be assumed that thelawmakers have started from the supposition that titles to the building lots within theconfines of such towns had been duly acquired; therefore, in special cases like thepresent one, wherein is sought the registration of a lot situated within a town createdand acknowledged administratively, it is proper to apply thereto the laws in force and

classify it as agricultural land, inasmuch as it was agricultural prior to its conversioninto a building lot, and is subject at any time to further rotation and cultivation;moreover, it does not appear that it was ever mining or forest land.

It should be noted that article 1 of the royal decree and regulation of the 25th of June,1880, says: "In the Philippine Islands, all vacant lands, soils, and grounds without alawful private owner, or, which have never been under private control, shall bedeemed to be alienable crown lands for the effects of the regulation, and inaccordance with law 14, title 12, book 4, of the Novsima Recopilacin;" that article 1

of the royal decree of the 14th of February, 1894, states: "Vacant lands, soils,grounds, and mountains in the Philippine Islands shall be deemed to be alienableCrown lands, provided they are not included within the following exceptions: (1)Those of private ownership; (2) those belonging to the forest zone; (3) thosecomprised in the communal laws, or within zones reserved for the use in common byresidents of the community; and (4) those lands which are susceptible of privateappropriation by means of composition or possessory information;" and that althoughsection 13 of the Act of Congress of July 1, 1902, directs the Government of thePhilippine Islands to classify public lands that are neither forest nor mining landsaccording to their agricultural character and productiveness, section 14 authorizesand empowers the said Government "to enact rules and regulations and to prescribeterms and conditions to enable persons to perfect their title to public lands in saidIslands, who, prior to the transfer of sovereignty from Spain to the United States, hadfulfilled all or some of the conditions required by the Spanish laws and royal decreesof the Kingdom of Spain for the acquisition of legal title thereto, yet failed to secureconveyance of title, etc.;" and section 15 authorizes and empowers the saidGovernment of the Philippine Islands "on such terms as it may prescribed, by generallegislation, to provide for the granting, or sale and conveyance to actual occupantsand settlers and other citizens of said Islands such parts and portions of the publicdomain, other than timber and mineral lands of the United States on said Islands, as itmay deem wise, etc."

From the language of the foregoing provisions of the law, it is deduced that, with theexception of those comprised within the mineral and timber zone, all lands owned bythe State or by the sovereign nation are public in character, and per se alienable and,provided they are not destined to the use of the public in general or reserved by theGovernment in accordance with law, they may be acquired by any private or judicialperson; and considering their origin and primitive state and the general uses to whichthey were accorded, they are called agricultural lands, urban lands or building lotsbeing included in this classification for the purpose of distinguishing rural and urbanestates from mineral and timber lands; the transformation they may have undergoneis no obstacle to such classification as the possessors thereof may again convertthem into rural estates.

If the land sought to be registered is neither mineral nor timber land, and on the otherhand is susceptible of cultivation the Act of Congress contains no provision whateverthat would exclude it from being classified as agricultural land, and assuming that itfalls within that classification, the benefits of paragraph 6, section 54, of Act No. 926,must forthwith be applied for the reason that it has been fully proven that the applicantwas in possession thereof for more than 13 years prior to the 26th of July, 1904,when the said Act went into effect. Furthermore, there is no legal reason or cause toexclude urban lands from the benefits of the aforesaid Act; on the contrary, the


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interpretation that urban real estate, that is not mineral or forestall in character, beunderstood to fall within the classification of agricultural land, is deemed to be mostrational and beneficial to public interests.

Therefore, in view of the foregoing, it is our opinion that the judgment appealed fromshould be reversed, and that it should be, as it is, hereby ordered, that, after holdingin general default all such persons as may have any interest in the said parcel of land,the registration of the same shall be granted in accordance with the Land RegistrationAct. No special ruling is made as to costs. So ordered.

Willard, J., concurs.Carson, J., concurs in the result.

Separate Opinions

ARELLANO, C. J., concurring:

The land that is the subject of the petition in this case, is described in the judgment o fthe court below, whose conclusions of fact are of the following tenor:

The object of registration in this case is a lot situated on McKinley Avenue, in

the municipality of Surigao, province of the same name; it comprises an areaof 3,375 square meters, and is bounded on the north by the seashore; onthe east by the land of the heirs of the late Andres Ojeda; on the south bythe aforesaid street; and on the west by the premises of the governmentbuilding.

In order to acquire the said property, which is a building lot situated in theinhabited portion of the said municipality of Surigao, Telesforo Ibaez deAldecoa on June 11, 1889, filed a petition with the politico-militargovernor ofthe 3d District of Mindanao to whom then belonged the municipality andProvince of Surigao, claiming the said lot as being abandoned, andrequesting that he be granted a title of ownership thereto. In view of the saidpetition, D. Juan Cirlot y Butler, major of Infantry, who at the time was

governor, directed bandillos (proclamations) to be published for threesuccessive nights in the said municipality of Surigao, calling on all personswho considered that they were entitled to the said lot; after the bandillos hadso been published, and no one appearing to claim the lot, and it appearingfrom the report of the governadorcillo and principales of said municipalitythat the lot was unoccupied and that no one had ever been known to ownthe same, the governor, on the 19th of the said month of June, granted tothe said Telesforo Ibaez de Aldecoa title of ownership to the said lot inorder that he might forthwith build a house thereon. The document settingforth the said concession was a certificate issued on the same date, the19th, by the aforesaid governor; and by order of the Court of First Instanceof Surigao, the same was entered in the record of public instruments of thesaid court corresponding to said year on the 22d of October. A certified copy

of the document so recorded was obtained and attached to the record of the

case, and was recorded on the 23d of March, 1896, in the registry ofproperty of the said Province of Surigao, lot No. 408, first entry.

After the title of ownership to the lot in question had been granted in themanner above stated, the grantee, Telesforo Ibaez de Aldecoa,immediately took possession and within a short time had it fenced in andtook care to keep the fence in good repair; and thus keeping the landconstantly fenced in he continued to possess it publicly, in his own nameand as the owner thereof, without any interruption or opposition from anyone

until he died in the year 1902. "After the death of the said Telesforo Ibaezde Aldecoa, his widow succeeded him in the possession of one-half of thelot in question for the reason that it pertained to thebienesgananciales (property acquired during marriage), and his son, the petitionerherein, as sole heir of the deceased, inherited the other half. He also haskept the land fenced in, and lately replaced the fence with a wire one.Toward the month of March or April, 1903, the provincial board of Surigao, inspite of the opposition and protests on the part of the aforesaid possessors,ordered the removal of and did remove the fence around the lot abovereferred to, claiming that the said lot belonged to the Province of Surigao;that for this reason their possession was interrupted until March, 1904, whenthe said possessors, after having filed their application for registration inthese proceedings, erected monuments on the lot. And that lot has neverbeen devoted to cultivation, neither is it by its nature suitable for any kind ofcultivation.

Such are the facts that should be considered as proven in theseproceedings.

From the facts set forth it evidently appears:

First. That the land in question is a building lot situated within the inhabited portion ofthe town of Surigao.

Second. That since June, 1889, the said lot had been possessed with the knowledgeand consent of the said municipality, peacefully and without any opposition up toMarch or April, 1903, to-wit, approximately fourteen years; that prior to the saidadjudication, the gobernadorcilloand the principales of said municipality had beencited and heard on the subject.

Third. That the little of ownership issued by the provincial official of Surigao wasentered in the registry of property of said province on the 23d of March, 1896.

Fourth. That from March or April, 1903, until March, 1904, the material possessionsuffered interruption on account of an abusive and arbitrary act of intrusion of theprovincial board of Surigao which had absolutely no authority to commit such an actof spoliation; and,

Fifth. That in March, 1904, after the peaceful and quiet possession was resumed, thepetitioner instituted these proceedings for the purpose of obtaining a new title of


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ownership in accordance with the Acts of the Philippine Commission that created thenew registry of property.

The present opposition is based on the supposition that the said lot was a parcel ofland subject to composition, as if it were vacant Government land; that as suchvacant and Government land, it had not been duly granted by composition when inJune, 1889, Telesforo Ibaez de Aldecoa obtained his title of ownership fromthe politico-militargovernor of said province, who was not the person called upon togrant titles by composition after the promulgation of the royal decree of June 25,

1880, and that of December 26, 1884; and the Court of Land Registration, assumingon the contrary that the said land is not vacant crown land, it not being devoted toagriculture but to building purposes, and because "by reason of its nature it is notsuitable for agriculture but is destined exclusively to building purposes, and istherefore not agricultural, it believes that the same can not be the subject ofadjudication under the provisions of the Act of Congress and Act No. 926 of thePhilippine Commission, and that in the opinion of the court, paragraph 6 of section 54of Act No. 926 is not applicable to urban real estate."

An established rule which has been repeatedly laid down by this court, is that only thevacant Crown lands were subject to composition; that is, rural lands devoted tocultivation. In the present case the petitioner finds himself between the horns of adilemma: As to whether the land in question is urban or rural property; if it is rural, the

Attorney-General argues that it has not been subjected to composition, and that thepossession thereof is consequently illegal; and if it is urban, the lower court rejects itas not being susceptible of acquisition under the title of ownership that has beennewly created and organized. In conclusion it appears: First, that the owners of urbanreal estate can not obtain Torrens titles through possession for ten years, nor by apossessory information recorded for that or a longer period of time. Second, thaturban real estate, possessed for more than fourteen years with knowledge andconsent of the authorities of the town wherein it is located, may be recovered by theGovernment on the ground that it is public land that had not been alienated by it, forthe reason that it is not agricultural, nor is it mineral or timber land.

It would be necessary to demonstrate that this building lot, which was recorded in theregistry of property with possessory information, and continuously and materially

possessed as private property since June, 1889, until the 11th of April, 1899, withoutopposition from the Spanish Government, was public land transferred by the treaty ofParis to the public domain of the present sovereignty, and that under said character ofpublic land it is not agricultural land that may be conveyed to private dominionaccording to section 13 of the Act of Congress, and section 54 of Act No. 926.

It is true that at the time above referred to, June of 1889, the politico-militargovernorof Surigao had no authority to issue titles by composition. And as a matter of fact, atthat time, the said governor did not issue to Telesforo Ibaez de Aldecoa a title bycomposition. So that this is not the question.

What he did was to adjudicate to Telesforo Ibaez de Aldecoa a building lot in thetown of Surigao, and to that effect he issued to him a title of ownership to the said lot.

And this is a question anent which absolutely no argument has been made in thewhole proceedings.

It is argued that the said provincial governor had no authority to issue the title, andthat the said title is null on the unwarranted supposition, that it was a title ofcomposition such as was provided for by the royal decrees of 1880 and 1884, whichis entirely incorrect.

What should have been proven was, either that the said lot, though a building or townsite (not rural property or arable land) could not be acquired otherwise than bycomposition, in accordance with the aforesaid royal decrees of 1880 and 1884, or,that the politico-militargovernor of a province could not adjudicate the ownership of

land situated within the town to a resident thereof as such building lot or urban realestate, and still less as vacant Crown land, although within the inhabited portion of thetown, as it is desired to consider the same. And in this sense nothing has beenproven or sought to be proven in the whole case.

The question is merely one supposition. The Attorney-General has supposed that itwas vacant Crown land, and as such, agricultural land which was possessed withouttitle by composition. The court below has supposed it to be a building lot or urbanproperty, not agricultural land, entirely excluded from the benefits of Act No. 926 ofthe Commission. And in either form the said land or building lot possessed as privateproperty prior to the enactment of Act No. 926, can not be recorded in the newregistry of property.

Was it an illegal possession? Was the possession held from 1889 to the 11th of April,1899, usurped from the Spanish Government so that at the latter date, the land thuspossessed should be considered as part of the public property which Spaintransferred to the United States by the treaty of Paris?

According to Article VIII of said treaty, Spain cede all real property which under thelaw was of public domain, and as such belonged to Spain. It was held that thiscession could in no way affect the ownership or rights which, in accordance with law,corresponded to the peaceful possessorof property of every class, that is to say, theproperty of private individuals.

Ever since the year 1889, the land in question has been owned by a privateindividual, and was not public property belonging to the Spanish Government. It waspossessed as such, and in order to deprive it of this status it was necessary that theSpanish Government or its assignee should recover possession of the same by dueprocess of law. And in order to recover it, it would be necessary to prove that the saidlot, which formed a part of the inhabited portion of Surigao, belonged to the SpanishGovernment on the 11th of April, 1899. This has not been advanced by theopposition; recovery of possession has not been sought, but the title adjudicated in1889 is repudiated on the ground that the provincial governor of Surigao had noauthority to adjudicate it to the said private individual.

But, from the enforcement of the Laws of the Indies, provincial governors wereauthorized to organize towns and distribute land for building purposes. Law 1, title 12,book 4, of the Recopilacin of the Laws of the Indies, reads:


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It is our will that there shall be distributed to all those who shall go out topeople the new territories, houses,building lots,lands peonias and caballerias in the towns and places which may beassigned to them by the governor of the new settlement . . . . After selectingthe territory, province and locality where the new community is to befounded, and after ascertaining the conveniences and resources that mayexist thereon, the governor within whose district the same is located shallannounce whether it is to be a city, town or village. . . . (Law 2, title 8

1of the

same book.)

First let there be set aside whatever land may be necessaryforsolares (building lots) for the people, commons, and abundant pastureswhereon the cattle owned by the residents may graze, and as much againfor the use of the natives; the rest of the territory shall be divided into fourparts, one of them, which he may select, shall be for the person who obligedto form the town, and the other three parts shall be distributed amongsettlers in equal parts. (Law 7 of the same title and book.)

2

Law 8 provides as to how temples shall be constructed:

"Somewhat distant from the plaza, where it will be separated from any other buildingnot necessary for its use or adornment." . . . . "Building lots being assigned near it but

not in continuation, for the erection ofcasas reales(government buildings) and boothsin the plaza for public use . . ." it seems that the lot in question in the case at bar iscontiguous to the government building orcasa realof Surigao.

Law 14 of the same title 7, book 4, is a fundamental law which, as a complement tothe foregoing organic laws of towns, provides for the separation of the landconstituting the inhabited portion of the town from land properlycalled vacant(baldos), of which so much is spoken in these land registration cases. Itreads as follows:

Sufficient land having been set aside for the town common, and to allow forthe growth of the town as already provided, let all persons authorized todiscover and establish new townships indicate pasture lands adjoining thecommon in order that work cattle, horses, and cattle for slaughteringpurposes, together with other cattle which by ordinance the settlers arebound to have, may graze thereon, together with an additional amount, all ofwhich shall be the property of the council, and the balance shall be farmlands to be drawn by lot; there shall be as many of the latter as there arebuilding lots in the township; and if there should be irrigated lands, they shalllikewise be divided and distributed by lot in the same proportion among theoriginal settlers.All other lands are to remain vacantin order that we maygrant them to new settlers. From said lands the viceroys shall reserve suchas they may think advisable to assign to towns unprovided with any, to assistthem to pay the salaries of their mayors; they shall provide commons andsufficient pasture grounds, as provided by law, and they shall actaccordingly.

Building lots are not vacant lands, and the building lots used to be distributed andadjudicated by the governor of the province or district to which the town belonged,after hearing the gobernadorcilloand the notables of such town. As urban property,building lots forming part of the inhabited portion of a town, passed beyond thesphere of the administrative laws to enter that of the civil law. Thus, all questionsarising in connection with them, after they had been ceded or granted, could only bedecided by the civil law, even though raised by the Government, through actionbrought before the ordinary courts of justice, and not before the administration, northe contentious tribunals which the Government itself had established in its relationswith persons under its administration, as has already been held by this court in thecase ofRoura vs. The Insular Government(8 Phil. Rep., 214).

Vacant lands were those which remained at the disposition of the King or thesupreme government at the capital of the nation after due assignment and distributionof what was needed for the newly formed town; such vacant lands were adjudicatedby sale or by composition, or in the form of free grants to new settlers.

We can not affirm the reason given for denying the title of ownership applied for inthis case, that the subject of the petition was a building lot, which, not beingagricultural land was not entitled to the benefits of section 54 of the Act No. 926.

Paragraph 6 of section 54, which determines the persons who may obtain

confirmation of their rights, reads: "All persons who by themselves or theirpredecessors in interest have been in the open, continuous, exclusive, and notoriouspossession and the occupation of agricultural public lands, as defined by said Act ofCongress of July 1, 1902," and what are agricultural lands as defined by the said Actof Congress has already been declared by this court (Mapa vs. The InsularGovernment, 10 Phil. Rep., 175).

On this ground the confirmation and title applied for herein should be granted.

Mapa, J., concurs.


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G.R. No. L-630 November 15, 1947ALEXANDER A. KRIVENKO, petitioner-appellant,vs.THE REGISTER OF DEEDS, CITY OF MANILA, respondent and appellee.Gibbs, Gibbs, Chuidian and Quasha of petitioner-appellant.First Assistant Solicitor General Reyes and Solicitor Carreon for respondent-appellee.Marcelino Lontok appeared as amicus curies.MORAN, C.J.:

Alenxander A. Kriventor alien, bought a residential lot from the Magdalena Estate,Inc., in December of 1941, the registration of which was interrupted by the war. InMay, 1945, he sought to accomplish said registration but was denied by the registerof deeds of Manila on the ground that, being an alien, he cannot acquire land in thisjurisdiction. Krivenko then brought the case to the fourth branch of the Court of FirstInstance of Manila by means of a consulta, and that court rendered judgmentsustaining the refusal of the register of deeds, from which Krivenko appealed to thisCourt.

There is no dispute as to these facts. The real point in issue is whether or not an alienunder our Constitution may acquire residential land.

It is said that the decision of the case on the merits is unnecessary, there being a

motion to withdraw the appeal which should have been granted outright, andreference is made to the ruling laid down by this Court in another case to the effectthat a court should not pass upon a constitutional question if its judgment may bemade to rest upon other grounds. There is, we believe, a confusion of ideas in thisreasoning. It cannot be denied that the constitutional question is unavoidable if wechoose to decide this case upon the merits. Our judgment cannot to be made to restupon other grounds if we have to render any judgment at all. And we cannot avoid ourjudgment simply because we have to avoid a constitutional question. We cannot, forinstance, grant the motion withdrawing the appeal only because we wish to evade theconstitutional; issue. Whether the motion should be, or should not be, granted, is aquestion involving different considerations now to be stated.

According to Rule 52, section 4, of the Rules of Court, it is discretionary upon this

Court to grant a withdrawal of appeal after the briefs have been presented. At thetime the motion for withdrawal was filed in this case, not only had the briefs beenprensented, but the case had already been voted and the majority decision was beingprepared. The motion for withdrawal stated no reason whatsoever, and the SolicitorGeneral was agreeable to it. While the motion was pending in this Court, came thenew circular of the Department of Justice, instructing all register of deeds to acceptfor registration all transfers of residential lots to aliens. The herein respondent-appellee was naturally one of the registers of deeds to obey the new circular, asagainst his own stand in this case which had been maintained by the trial court andfirmly defended in this Court by the Solicitor General. If we grant the withdrawal, thethe result would be that petitioner-appellant Alexander A. Krivenko wins his case, notby a decision of this Court, but by the decision or circular of the Department ofJustice, issued while this case was pending before this Court. Whether or not this isthe reason why appellant seeks the withdrawal of his appeal and why the Solicitor

General readily agrees to that withdrawal, is now immaterial. What is material andindeed very important, is whether or not we should allow interference with the regular

and complete exercise by this Court of its constitutional functions, and whether or notafter having held long deliberations and after having reached a clear and positiveconviction as to what the constitutional mandate is, we may still allow our convictionto be silenced, and the constitutional mandate to be ignored or misconceived, with allthe harmful consequences that might be brought upon the national patromony. For itis but natural that the new circular be taken full advantage of by many, with thecircumstance that perhaps the constitutional question may never come up againbefore this court, because both vendors and vendees will have no interest but touphold the validity of their transactions, and very unlikely will the register of deedsventure to disobey the orders of their superior. Thus, the possibility for this court tovoice its conviction in a future case may be remote, with the result that ourindifference of today might signify a permanent offense to the Constitution.

All thse circumstances were thoroughly considered and weighted by this Court for anumber of days and the legal result of the last vote was a denial of the motionwithdrawing the appeal. We are thus confronted, at this stage of the proceedings, withour duty, the constitutional question becomes unavoidable. We shall then proceed todecide that question.

Article XIII, section 1, of the Constitutional is as follows:

Article XIII. Conservation and utilization of natural resources.

SECTION 1. All agricultural, timber, and mineral lands of the public domain,water, minerals, coal, petroleum, and other mineral oils, all forces ofpotential energy, and other natural resources of the Philippines belong to theState, and their disposition, exploitation, development, or utilization shall belimited to citizens of the Philippines, or to corporations or associations atleast sixtyper centum of the capital of which is owned by such citizens,subject to any existing right, grant, lease, or concession at the time of theinaguration of the Government established uunder this Constitution. Naturalresources, with the exception of public agricultural land, shall not bealienated, and no licence, concession, or lease for the exploitation,development, or utilization of any of the natural resources shall be grantedfor a period exceeding twenty-five years, renewable for another twenty-five

years, except as to water rights for irrigation, water supply, fisheries, orindustrial uses other than the development of water "power" in which casesbeneficial use may be the measure and the limit of the grant.

The scope of this constitutional provision, according to its heading and its language,embraces all lands of any kind of the public domain, its purpose being to establish apermanent and fundamental policy for the conservation and utilization ofallnaturalresources of the Nation. When, therefore, this provision, with reference to lands of thepublic domain, makes mention of only agricultural, timber and mineral lands, it meansthat all lands of the public domain are classified into said three groups, namely,agricultural, timber and mineral. And this classification finds corroboration in thecircumstance that at the time of the adoption of the Constitution, that was the basicclassification existing in the public laws and judicial decisions in the Philippines, and

the term "public agricultural lands" under said classification had then acquired a


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technical meaning that was well-known to the members of the ConstitutionalConvention who were mostly members of the legal profession.

As early as 1908, in the case ofMapa vs. Insular Government(10 Phil., 175, 182),this Court said that the phrase "agricultural public lands" as defined in the Act ofCongress of July 1, 1902, which phrase is also to be found in several sections of thePublic Land Act (No. 926), means "those public lands acquired from Spain which areneither mineral for timber lands." This definition has been followed in long line ofdecisions of this Court. (SeeMontano vs. Insular Government, 12 Phil., 593; Ibaez

de Aldecoa vs. Insular Government, 13 Phil., 159; Ramosvs. Director of Lands, 39Phil., 175; Jocson vs. Director of Forestry, 39 Phil., 560; Ankron vs. Government ofthe Philippines, 40 Phil., 10.) And with respect to residential lands, it has been heldthat since they are neither mineral nor timber lands, of necessity they must beclassified as agricultural. In Ibaez de Aldecoa vs. Insular Government (13 Phil., 159,163), this Court said:

Hence, any parcel of land or building lot is susceptible of cultivation, andmay be converted into a field, and planted with all kinds of vegetation; forthis reason, where land is not mining or forestal in its nature, it mustnecessarily be included within the classification of agricultural land, notbecause it is actually used for the purposes of agriculture, but because itwas originally agricultural and may again become so under other

circumstances; besides, the Act of Congress contains only threeclassification, and makes no special provision with respect to building lots orurban lands that have ceased to be agricultural land.

In other words, the Court ruled that in determining whether a parcel of land isagricultural, the test is not only whether it is actually agricultural, but also itssusceptibility to cultivation for agricultural purposes. But whatever the test might be,the fact remains that at the time the Constitution was adopted, lands of the publicdomain were classified in our laws and jurisprudence into agricultural, mineral, andtimber, and that the term "public agricultural lands" was construed as referring tothose lands that were not timber or mineral, and as including residential lands. It maysafely be presumed, therefore, that what the members of the ConstitutionalConvention had in mind when they drafted the Constitution was this well-known

classification and its technical meaning then prevailing.

Certain expressions which appear in Constitutions, . . . are obviouslytechnical; and where such words have been in use prior to the adoption of aConstitution, it is presumed that its framers and the people who ratified ithave used such expressions in accordance with their technical meaning. (11Am. Jur., sec. 66, p. 683.)Also Caldervs. Bull, 3 Dall. [U.S.], 386; 1 Law.ed., 648; Bronson vs. Syverson, 88 Wash., 264; 152 P., 1039.)

It is a fundamental rule that, in construing constitutions, terms employedtherein shall be given the meaning which had been put upon them, andwhich they possessed, at the time of the framing and adoption of theinstrument. If a word has acquired a fixed, technical meaning in legal and

constitutional history, it will be presumed to have been employed in that

sense in a written Constitution. (McKinney vs. Barker, 180 Ky., 526; 203S.W., 303; L.R.A., 1918 E, 581.)

Where words have been long used in a technical sense and have beenjudicially construed to have a certain meaning, and have been adopted bythe legislature as having a certain meaning prior to a particular statute inwhich they are used, the rule of construction requires that the words used insuch statute should be construed according to the sense in which they havebeen so previously used, although the sense may vary from strict literal

meaning of the words. (II Sutherland, Statutory Construction, p. 758.)

Therefore, the phrase "public agricultural lands" appearing in section 1 of Article XIIIof the Constitution must be construed as including residential lands, and this is inconformity with a legislative interpretation given after the adoption of the Constitution.Well known is the rule that "where the Legislature has revised a statute after aConstitution has been adopted, such a revision is to be regarded as a legislativeconstruction that the statute so revised conforms to the Constitution." (59 C.J., 1102.)Soon after the Constitution was adopted, the National Assembly revised the PublicLand Law and passed Commonwealth Act No. 141, and sections 58, 59 and 60thereof permit the sale of residential lots to Filipino citizens or to associations orcorporations controlled by such citizens, which is equivalent to a solemn declarationthat residential lots are considered as agricultural lands, for, under the Constitution,

only agricultural lands may be alienated.

It is true that in section 9 of said Commonwealth Act No. 141, "alienable or disposablepublic lands" which are the same "public agriculture lands" under the Constitution, areclassified into agricultural, residential, commercial, industrial and for other puposes.This simply means that the term "public agricultural lands" has both a broad and aparticular meaning. Under its broad or general meaning, as used in the Constitution, itembraces all lands that are neither timber nor mineral. This broad meaning isparticularized in section 9 of Commonwealth Act No. 141 which classifies "publicagricultural lands" for purposes of alienation or disposition, into lands that are striclyagricultural or actually devoted to cultivation for agricultural puposes; lands that areresidential; commercial; industrial; or lands for other purposes. The fact that theselands are made alienable or disposable under Commonwealth Act No. 141, in favor of

Filipino citizens, is a conclusive indication of their character as public agriculturallands under said statute and under the Constitution.

It must be observed, in this connection that prior to the Constitution, under section 24of Public Land Act No. 2874, aliens could acquire public agricultural lands used forindustrial or residential puposes, but after the Constitution and under section 23 ofCommonwealth Act No. 141, the right of aliens to acquire such kind of lands iscompletely stricken out, undoubtedly in pursuance of the constitutional limitation. And,again, prior to the Constitution, under section 57 of Public Land Act No. 2874, land ofthe public domain suitable for residence or industrial purposes could be soldorleased to aliens, but after the Constitution and under section 60 of CommonwealthAct No. 141, such land may only be leased, but not sold, to aliens, and the leasegranted shall only be valid while the land is used for the purposes referred to. The

exclusion of sale in the new Act is undoubtedly in pursuance of the constitutional


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limitation, and this again is another legislative construction that the term "publicagricultural land" includes land for residence purposes.

Such legislative interpretation is also in harmony with the interpretation given by theExecutive Department of the Government. Way back in 1939, Secretary of JusticeJose Abad Santos, in answer to a query as to "whether or not the phrase 'publicagricultural lands' in section 1 of Article XII (now XIII) of the Constitution may beinterpreted to include residential, commercial, and industrial lands for purposes oftheir disposition," rendered the following short, sharp and crystal-clear opinion:

Section 1, Article XII (now XIII) of the Constitution classifies lands of thepublic domain in the Philippines into agricultural, timber and mineral. This isthe basic classification adopted since the enactment of the Act of Congressof July 1, 1902, known as the Philippine Bill. At the time of the adoption ofthe Constitution of the Philippines, the term 'agricultural public lands' and,therefore, acquired a technical meaning in our public laws. The SupremeCourt of the Philippines in the leading case ofMapa vs. InsularGovernment, 10 Phil., 175, held that the phrase 'agricultural public lands'means those public lands acquired from Spain which are neither timber normineral lands. This definition has been followed by our Supreme Court inmany subsequent case. . . .

Residential commercial, or industrial lots forming part of the public domainmust have to be included in one or more of these classes. Clearly, they areneither timber nor mineral, of necessity, therefore, they must be classified asagricultural.

Viewed from another angle, it has been held that in determining whetherlands are agricultural or not, the character of the land is the test(Odell vs. Durant, 62 N.W., 524; Lorch vs. Missoula Brick and Tile Co., 123p.25). In other words, it is the susceptibility of the land to cultivation foragricultural purposes by ordinary farming methods which determineswhether it is agricultural or not (State vs. Stewart, 190 p. 129).

Furthermore, as said by the Director of Lands, no reason is seen why apiece of land, which may be sold to a person if he is to devote it toagricultural, cannot be sold to him if he intends to use it as a site for hishome.

This opinion is important not alone because it comes f rom a Secratary of Justice wholater became the Chief Justice of this Court, but also because it was rendered by amember of the cabinet of the late President Quezon who actively participated in thedrafting of the constitutional provision under consideration. (2 Aruego, Framing of thePhilippine Constitution, p. 598.) And the opinion of the Quezon administration wasreiterated by the Secretary of Justice under the Osmea administration, and it wasfirmly maintained in this Court by the Solicitor General of both administrations.

It is thus clear that the three great departments of the Government judicial,legislative and executive have always maintained that lands of the public domain

are classified into agricultural, mineral and timber, and that agricultural lands includeresidential lots.

Under section 1 of Article XIII of the Constitution, "natural resources, with theexception of public agricultural land, shall notbe aliented," and with respect to publicagricultural lands, their alienation is limited to Filipino citizens. But this constitutionalpurpose conserving agricultural resources in the hands of Filipino citizens may easilybe defeated by the Filipino citizens themselves who may alienate their agriculturallands in favor of aliens. It is partly to prevent this result that section 5 is included in

Article XIII, and it reads as follows:

Sec. 5. Save in cases of hereditary succession, no private agricultural landwill be transferred or assigned except to individuals, corporations, orassociations qualified to acquire or hold lands of the public domain in thePhilippines.

This constitutional provision closes the only remaining avenue through whichagricultural resources may leak into aliens' hands. It would certainly be futile toprohibit the alienation of public agricultural lands to aliens if, after all, they may befreely so alienated upon their becoming private agricultural lands in the hands ofFilipino citizens. Undoubtedly, as above indicated, section 5 is intended to insure thepolicy of nationalization contained in section 1. Both sections must, therefore, be read

together for they have the same purpose and the same subject matter. It must benoticed that the persons against whom the prohibition is directed in section 5 are thevery same persons who under section 1 are disqualified "to acquire or hold lands ofthe public domain in the Philippines." And the subject matter of both sections is thesame, namely, the non-transferability of "agricultural land" to aliens. Since"agricultural land" under section 1 includes residential lots, the same technicalmeaning should be attached to "agricultural land under section 5. It is a rule ofstatutory construction that "a word or phrase repeated in a statute will bear the samemeaning throughout the statute, unless a different intention appears." (II Sutherland,Statutory Construction, p. 758.) The only difference between "agricultural land" undersection 5, is that the former is public and the latter private. But such difference refersto ownership and not to the class of land. The lands are the same in both sections,and, for the conservation of the national patrimony, what is important is the nature or

class of the property regardless of whether it is owned by the State or by its citizens.

Reference is made to an opinion rendered on September 19, 1941, by the Hon.Teofilo Sison, then Secretary of Justice, to the effect that residential lands of thepublic domain may be considered as agricultural lands, whereas residential lands ofprivate ownership cannot be so considered. No reason whatsoever is given in theopinion for such a distinction, and no valid reason can be adduced for such adiscriminatory view, particularly having in mind that the purpose of the constitutionalprovision is the conservation of the national patrimony, and private residential landsare as much an integral part of the national patrimony as the residential lands of thepublic domain. Specially is this so where, as indicated above, the prohibition as to thealienable of public residential lots would become superflous if the same prohibition isnot equally applied to private residential lots. Indeed, the prohibition as to private

residential lands will eventually become more important, for time will come when, inview of the constant disposition of public lands in favor of private individuals, almost


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all, if not all, the residential lands of the public domain shall have become privateresidential lands.

It is maintained that in the first draft of section 5, the words "no land of privateownership" were used and later changed into "no agricultural land of privateownership," and lastly into "no private agricultural land" and from these changes it isargued that the word "agricultural" introduced in the second and final drafts wasintended to limit the meaning of the word "land" to land actually used for agriculturalpurposes. The implication is not accurate. The wording of the first draft was amended

for no other purpose than to clarify concepts and avoid uncertainties. The words "noland" of the first draft, unqualified by the word "agricultural," may be mistaken toinclude timber and mineral lands, and since under section 1, this kind of lands cannever be private, the prohibition to transfer the same would be superfluous. Upon theother hand, section 5 had to be drafted in harmony with section 1 to which it issupplementary, as above indicated. Inasmuch as under section 1, timber and minerallands can never be private, and the only lands that may become private areagricultural lands, the words "no land of private ownership" of the first draft can haveno other meaning than "private agricultural land." And thus the change in the finaldraft is merely one of words in order to make its subject matter more specific with aview to avoiding the possible confusion of ideas that could have arisen from the firstdraft.

If the term "private agricultural lands" is to be construed as not including residentiallots or lands not strictly agricultural, the result would be that "aliens may freely acquireand possess not only residential lots and houses for themselves but entiresubdivisions, and whole towns and cities," and that "they may validly buy and hold intheir names lands of any area for building homes, factories, industrial plants,fisheries, hatcheries, schools, health and vacation resorts, markets, golf courses,playgrounds, airfields, and a host of other uses and purposes that are not, inappellant's words, strictly agricultural." (Solicitor General's Brief, p. 6.) That this isobnoxious to the conservative spirit of the Constitution is beyond question.

One of the fundamental principles underlying the provision of Article XIII of theConstitution and which was embodied in the report of the Committee onNationalization and Preservation of Lands and other Natural Resources of the

Constitutional Convention, is "that lands, minerals, forests, and other naturalresources constitute the exclusive heritage of the Filipino nation. They should,therefore, be preserved for those under the sovereign authority of that nation and fortheir posterity." (2 Aruego, Framing of the Filipino Constitution, p. 595.) DelegateLedesma, Chairman of the Committee on Agricultural Development of theConstitutional Convention, in a speech delivered in connection with the national policyon agricultural lands, said: "The exclusion of aliens from the privilege ofacquiringpublic agricultural lands and of owning real estate is a necessary partof thePublic Land Laws of the Philippines to keep pace with the idea of preserving thePhilippines for the Filipinos." (Emphasis ours.) And, of the same tenor was the speechof Delegate Montilla who said: "With the complete nationalization of our lands andnatural resources it is to be understood that our God-given birthright should be onehundred per cent in Filipino hands . . .. Lands and natural resources are immovablesand as such can be compared to the vital organs of a person's body, the lack of

possession of which may cause instant death or the shortening of life. If we do notcompletely antionalize these two of our most important belongings, I am afraid that

the time will come when we shall be sorry for the time we were born. Ourindependence will be just a mockery, for what kind of independence are we going tohave if a part of our country is not in our hands but in those of foreigners?" (Emphasisours.) Professor Aruego says that since the opening days of the ConstitutionalConvention one of its fixed and dominating objectives was the conservation andnationalization of the natural resources of the country. (2 Aruego, Framing of thePhilippine Constitution, p 592.) This is ratified by the members of the ConstitutionalConvention who are now members of this Court, namely, Mr. Justice Perfecto, Mr.Justice Briones, and Mr. Justice Hontiveros. And, indeed, if under Article XIV, section8, of the Constitution, an alien may not even operate a small jitney for hire, it iscertainly not hard to understand that neither is he allowed to own a pieace of land.

This constitutional intent is made more patent and is strongly implemented by an actof the National Assembly passed soon after the Constitution was approved. We arereferring again to Commonwealth Act No. 141. Prior to the Constitution, there were inthe Public Land Act No. 2874 sections 120 and 121 which granted aliens the right toacquire private only by way of reciprocity. Said section reads as follows:

SEC. 120. No land originally acquired in any manner under the provisions ofthis Act, nor any permanent improvement on such land, shall beencumbered, alienated, or transferred, except to persons, corporations,associations, or partnerships who may acquire lands of the public domain

under this Act; to corporations organized in the Philippine Islands authorizedtherefor by their charters, and, upon express authorization by the PhilippineLegislature, to citizens of countries the laws of which grant to citizens of thePhilippine Islands the same right to acquire, hold, lease, encumber, disposeof, or alienate land, or permanent improvements thereon, or any interesttherein, as to their own citizens, only in the manner and to the extentspecified in such laws, and while the same are in force but not thereafter.

SEC. 121. No land originally acquired in any manner under the provisions ofthe former Public Land Act or of any other Act, ordinance, royal order, royaldecree, or any other provision of law formerly in force in the PhilippineIslands with regard to public lands, terrenos baldios y realengos, or lands ofany other denomination that were actually or presumptively of the public

domain or by royal grant or in any other form, nor any permanentimprovement on such land, shall be encumbered, alienated, or conveyed,except to persons, corporations, or associations who may acquire land of thepublic domain under this Act; to corporate bodies organized in the PhilippineIslands whose charters may authorize them to do so, and, upon expressauthorization by the Philippine Legislature, to citizens of the countries thelaws of which grant to citizens of the Philippine Islands the same right toacquire, hold, lease, encumber, dispose of, or alienate land or pemanentimprovements thereon or any interest therein, as to their own citizens, andonly in the manner and to the extent specified in such laws, and while thesame are in force, but not thereafter:Provided, however, That this prohibitionshall not be applicable to the conveyance or acquisition by reason ofhereditary succession duly acknowledged and legalized by competentcourts, nor to lands and improvements acquired or held for industrial or

residence purposes, while used for such purposes:Provided, further, That inthe event of the ownership of the lands and improvements mentioned in this


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section and in the last preceding section being transferred by judicial decreeto persons,corporations or associations not legally capacitated to acquire thesame under the provisions of this Act, such persons, corporations, orassociations shall be obliged to alienate said lands or improvements toothers so capacitated within the precise period of five years, under thepenalty of such property reverting to the Government in the contrary case."(Public Land Act, No. 2874.)

It is to be observed that the pharase "no land" used in these section refers to all

private lands, whether strictly agricultural, residential or otherwise, there beingpractically no private land which had not been acquired by any of the means providedin said two sections. Therefore, the prohibition contained in these two provisions was,in effect, that no private land could be transferred to aliens except "upon expressauthorization by the Philippine Legislature, to citizens of Philippine Islands the sameright to acquire, hold, lease, encumber, dispose of, or alienate land." In other words,aliens were granted the right to acquire private land merely by way of reciprocity.Then came the Constitution and Commonwealth Act No. 141 was passed, sections122 and 123 of which read as follows:

SEC. 122. No land originally acquired in any manner under the provisions ofthis Act, nor any permanent improvement on such land, shall beencumbered, alienated, or transferred, except to persons, corporations,

associations, or partnerships who may acquire lands of the public domainunder this Act or to corporations organized in the Philippines authorizedthereof by their charters.

SEC. 123. No land originally acquired in any manner under the provisions ofany previous Act, ordinance, royal order, royal decree, or any other provisionof law formerly in force in the Philippines with regard to public lands terrenosbaldios y realengos, or lands of any other denomination that were actually orpresumptively of the public domain, or by royal grant or in any other form,nor any permanent improvement on such land, shall be encumbered,alienated, or conveyed, except to persons, corporations or associations whomay acquire land of the public domain under this Act or to corporate bodiesorganized in the Philippines whose charters authorize them to do

so: Provided, however, That this prohibition shall not be applicable to theconveyance or acquisition by reason of hereditary succession dulyacknowledged and legalized by competent courts: Provided, further, That inthe event of the ownership of the lands and improvements mentioned in thissection and in the last preceding section being transferred by judicial decreeto persons, corporations or associations not legally capacitated to acquirethe same under the provisions of this Act, such persons, corporations, orassociations shall be obliged to alienate said lands or improvements toothers so capacitated within the precise period of five years; otherwise, suchproperty shall revert to the Government.

These two sections are almost literally the same as sections 120 and 121 of Act No.2874, the only difference being that in the new provisions, the right to reciprocity

granted to aliens is completely stricken out. This, undoubtedly, is to conform to theabsolute policy contained in section 5 of Article XIII of the Constitution which, in

prohibiting the alienation of private agricultural lands to aliens, grants them no right ofreciprocity. This legislative construction carries exceptional weight, for prominentmembers of the National Assembly who approved the new Act had been members ofthe Constitutional Convention.

It is said that the lot question does not come within the purview of sections 122 and123 of Commonwealth Act No. 141, there being no proof that the same had beenacquired by one of the means provided in said provisions. We are not, however,diciding the instant case under the provisions of the Public Land Act, which have to

refer to land that had been formerly of the public domain, otherwise theirconstitutionality may be doubtful. We are deciding the instant case under section 5 ofArticle XIII of the Constitution which is more comprehensive and more absolute in thesense that it prohibits the transfer to alien of any private agricultural land includingresidential land whatever its origin might have been.

And, finally, on June 14, 1947, the Congress approved Republic Act No. 133 whichallows mortgage of "private real property" of any kind in favor of aliens but with aqualification consisting of expressly prohibiting aliens to bid or take part in any sale ofsuch real property as a consequence of the mortgage. This prohibition makes nodistinction between private lands that are strictly agricultural and private lands that areresidental or commercial. The prohibition embraces the sale of private lands of anykind in favor of aliens, which is again a clear implementation and a legislative

interpretation of the constitutional prohibition. Had the Congress been of opinion thatprivate residential lands may be sold to aliens under the Constitution, no legislativemeasure would have been found necessary to authorize mortgage which would havebeen deemed also permissible under the Constitution. But clearly it was the opinion ofthe Congress that such sale is forbidden by the Constitution and it was such opinionthat prompted the legislative measure intended to clarify that mortgage is not withinthe constitutional prohibition.

It is well to note at this juncture that in the present case we have no choice. We areconstruing the Constitution as it is and not as we may desire it to be. Perhaps theeffect of our construction is to preclude aliens, admitted freely into the Philippinesfrom owning sites where they may build their homes. But if this is the solemnmandate of the Constitution, we will not attempt to compromise it even in the name of

amity or equity. We are satisfied, however, that aliens are not completely excluded bythe Constitution from the use of lands for residential purposes. Since their residencein the Philippines is temporary, they may be granted temporary rights such as a leasecontract which is not forbidden by the Constitution. Should they desire to remain hereforever and share our fortunes and misfortunes, Filipino citizenship is not impossibleto acquire.

For all the foregoing, we hold that under the Constitution aliens may not acquireprivate or public agricultural lands, including residential lands, and, accordingly,judgment is affirmed, without costs.

Feria, Pablo, Perfecto, Hilado, and Briones, JJ.,concur.

Separate Opinion


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PERFECTO, J ., concurring:

Today, which is the day set for the promulgation of this Court's decision might beremembered by future generations always with joy, with gratitude, with pride. Thefailure of the highest tribunal of the land to do its duty in this case would haveamounted to a national disaster. We would have refused to share the responsibility ofcausing it by, wittingly or unwittingly, allowing ourselves to act as tools in a conspiracyto sabotage the most important safeguard of the age-long patrimony of our people,the land which destiny of Providence has set aside to be the permanent abode of our

race for unending generations. We who have children and grandchildren, and whoexpect to leave long and ramifying dendriform lines of descendants, could not bearthe thought of the curse they may fling at us should the day arrive when our peoplewill be foreigners in their fatherland, because in the crucial moment of our history ,when the vision of judicial statemanship demanded on us the resolution and boldnessto affirm and withhold the letter and spirit of the Constitution, we faltered. We wouldhave prefered heroic defeat to inglorious desertion. Rather than abandon the sacredfolds of the banner of our convictions for truth, for justice, for racial survival. We arehappy to record that this Supreme Court turned an impending failure to a glorioussuccess, saving our people from a looming catastrophe.

On July 3, 1946, the case ofOh Cho vs. Director of Lands, (43 Off. Gaz., 866), wassubmitted for our decision. The case was initiated in the Court of First Instance of

Tayabas on January 17, 1940, when an alien, Oh Cho, a citizen of China, applied fortitle and registration of a parcel of land located in the residential district ofGuinayangan, Tayabas, with a house thereon. The Director of Lands opposed theapplication, one of the main grounds being that "the applicant, being a Chinese, is notqualified to acquire public or private agricultural lands under the provisions of theConstitution."

On August 15, 1940, Judge P. Magsalin rendered decision granting the application.The Director of Lands appealed. In the brief filed by Solicitor General Roman Ozaeta,afterwards Associate Justice of the Supreme Court and now Secretary of Justice, andAssistant Solicitor General Rafael Amparo, appellant made only two assignments oferror, although both raised but one question, the legal one stated in the firstassignment of error as follows:

The lower court erred in declaring the registration of the land in question infavor of the applicant who, according to his own voluntary admission is acitizen of the Chinese Republic.

The brief was accompanied, as Appendix A, by the opinion of Secretary of JusticeJose A. Santos who, while Chief Justice of the Supreme Court, suffered heroicmartyrdom at the hands of the Japanese addressed to the Secretary of Agricultureand Commerce on July 15, 1939, supporting the same theory as the one advancedby the Director of Lands. The same legal question raised by appellant is discussed,not only in the brief for the appellee, but also in the briefs of the several amicicuriae allowed by the Supreme Court to appear in the case.

As a matter of fact, the case has been submitted for final decision of the SupremeCourt since July of 1941, that is, six years ago. It remained undecided when the

Pacific War broke out in December, 1941. After the Supreme Court was recognized inthe middle of 1945, it was found that the case was among those which weredestroyed in February, 1945, during the battle for the liberation of Manila. The casehad to be reconstituted upon motion of the office of the Solicitor General, filed withthis Court on January 14, 1946, in which it was also prayed that, after beingreconstituted, the case be submitted for final adjudication. The case was for thesecond time submitted for decision on July 3, 1946.

After the last submission, it took the Supreme Court many days to deliberate on the

case, especially on the legal question as to whether an alien may, under theConstitution, acquire private urban lands. An overwhelming majority answered no. Butwhen the decision was promulgated on August 31, 1946, a majority resolved to ignorethe question, notwithstanding our efforts to have the question, which is vital, pressingand far-reaching, decided once and for all, to dispel definitely the uncertainty gnawingthe conscience of the people. It has been out lot to be alone in expressing inunmistakable terms our opinion and decision on the main legal question raised by theappellant. The constitutional question was by-passed by the majority because theywere of opinion that it was not necessary to be decided, notwithstanding the fact thatit was the main and only legal question upon which appellant Director of Lands reliedin his appeal, and the question has been almost exhaustively argued in four printedbriefs filed by the parties and the amici curiae. Assurance was, nevertheless, giventhat in the next case in which the same constitutional question is raised, the majorityshall make known their stand on the question.

The next case came when the present one submitted to us for decision on February3, 1947. Again, we deliberated on the constitutional question for several days.

On February 24, 1947, the case was submitted for final vote, and the result was thatthe constitutional question was decided against petitioner. The majority was alsooverwhelming. There were eight of us, more than two-thirds of the Supreme Court.Only three Justices dissented.

While the decision was being drafted, somehow, the way the majority had voted musthave leaked out. On July 10, 1947, appellant Krivenko filed a motion for withdrawal ofhis appeal, for the evident purpose of preventing the rendering of the majority

decision, which would settle once and for all the all-important constitutional questionas to whether aliens may acquire urban lots in the Philippines.

Appellant chose to keep silent as to his reason for filing the motion. The SolicitorGeneral's office gave its conformity to the withdrawal of the appeal. This surprisingassent was given without expressing any ground at all. Would the Supreme Courtpermit itself to be cheated of its decision voted since February 24, 1947?

Discussion immediately ensued as to whether the motion should be granted ordenied, that is, whether this Court should abstain from promulgating the decision inaccordance with the result of the vote taken on February 24, 1947, as if, after morethan six years during which the question has been submitted for the decision of thehighest tribunal of the land, the same has failed to form a definite opinion.


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After a two-day deliberation, the Chief Justice, Mr. Justice Paras, Mr. JusticeHontiveros, Mr. Justice Padilla and and Mr. Justice Tuason voted to grant the motionfor withdrawal. Those who voted to deny the motion were Mr. Justice Feria, Mr.Justice Pablo, ourselves, Mr. Justice Hilado and Mr. Justice Bengzon. The vote thusresulted in a tie, 5-5. The deadlock resulting from the tie should have the effect ofdenying the motion, as provided by section 2 of Rule 56 to the effect that "where theCourt in bancis equally divided in opinion . . . on all incidental matters, the petition ormotion shall be denied." And we proposed that the rule be complied with, and thedenial be promulgated.

Notwithstanding this, as Mr. Justice Briones was then absent, our brethren resolvedto give him the opportunity of casting his vote on the question, although we insistedthat it was unnecessary. Days later, when all the members of the Court were alreadypresent, a new vote was taken. Mr. Justice Briones voted for the denial of the motion,and his vote would have resulted, as must be expected, in 6 votes for the denialagainst 5 for granting. But the final result was different. Seven votes were cast forgranting the motion and only four were cast for its denial.

But then, by providential design or simply by a happy stroke of luck or fate, on theoccasion of the registration by the register of deeds of Manila of land purchases oftwo aliens, a heated public polemic flared up in one section of the press, followed bycontroversial speeches, broadcast by radio, and culminating in the issuance on

August 12, 1947, of Circular No. 128 of the Secretary of Justice which reads asfollows:

TO ALL REGISTER OF DEEDS:

Paragraph 5 of Circular No. 14, dated August 25, 1945, is hereby amended so as toread as follows:

5"(a). Instruments by which private real property is mortgaged in favor of anyindividual, corporation, or association for a period not exceeding five years,renewable for another five years, may be accepted for registration. (Section1, Republic Act No. 138.)

"(b). Deeds or documents by which private residential, commercial, industrialor other classes of urban lands, or any right, title or interest therein istransferred, assigned or encumbered to an alien, who is not an enemynational, may be registered. Such classes of land are not deemed includedwithin the purview of the prohibition contained in section 5, Article XIII of theConstitution against the acquisition or holding of "private agricultural land"bythose who are not qualified to hold or acquire lands of the public domain.This is in conformity with Opinion No. 284, series of 1941, of the Secretary ofJustice and with the practice consistently followed for nearly ten years sincethe Constitution took effect on November 15, 1935.

"(c). During the effectivity of the Executive Agreement entered into between

the Republic of the Philippines and the Government of the United States onJuly 4, 1946, in pursuance of the so-called Parity Amendment to the

Constitution, citizens of the United States and corporations or associationsowned or controlled by such citizens are deemed to have the same rights ascitizens of the Philippines and corporations or associations owned orcontrolled by such are deemed to have the same rights as citizens of thePhilippines and corporations or associations owned or controlled by citizensof the Philippines in the acquisition of all classes of lands in the Philippines,whether of private ownership or pertaining to the public domain."

ROMAN OZAETA

Secretary of Justice

Paragraph 5 of Circular No. 14 dated August 25, 1945, amended by the above is asfollows:

Deeds or other documents by which a real property, or a right, or titlethereto, or an interest therein, is transferred, assigned or encumbered to analien, who is not enemy national, may be entered in the primary entry book;but, the registration of said deeds or other documents shall be denied unless and/or until otherwise specifically directed by a final decision or orderof a competent court and the party in interest shall be advised of suchdenial, so that he could avail himself of the right to appeal therefrom, underthe provisions of section 200 of the Revised Administrative Code. The denial

of registration of shall be predicated upon the prohibition contained insection 5, Article XIII (formerly Article XII) of the Constitution of thePhilippines, and sections 122 and 123 of Commonwealth Act No. 141, theformer as amended by the Commonwealth Act No. 615.

The polemic found echo even in the Olympic serenity of a cloistered Supreme Courtand the final result of long and tense deliberation which ensued is concisely recordedin the following resolution adopted on August 29, 1947:

In Krivenko vs. Register of Deeds, City of Manila, L-630, a case alreadysubmitted for decision, the appellant filed a motion to withdraw his appealwith the conformity of the adverse party. After full discussion of the matterspecially in relation to the Court's discretion (Rule 52, section 4, and Rule

58), Mr. Justice Paras, Mr. Justice Hilado, Mr. Justice Bengzon, Mr. JusticePadilla and Mr. Justice Tuazon voted to grant, while the Chief Justice, Mr.Justice Feria, Mr,. Justice Pablo, Mr. Justice Perfecto and Mr. JusticeBriones voted to deny it. A redeliberation was consequently had, with thesame result. Thereupon Mr. Justice Paras proposed that Mr. JusticeHontiveros be asked to sit and break the tie; but in view of the latter'sabsence due to illness and petition for retirement, the Court by a vote ofseven to three did not approve the proposition. Therefore, under Rule 56,section 2, the motion to withdraw is considered denied.

Mr. Justice Padilla states that in his opinion the tie could not have the effectof overruling the previous vote of seven against four in favor of the motion towithdraw.


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Mr. Justice Paras states: Justice Hontiveros is aware of and conversant withthe controversy. He has voted once on the motion to withdraw the appeal.He is still a member of the Court and, on a moment's notice, can be presentat any session of the Court. Last month, when all the members werepresent, the votes on the motion stood 7 to 4. Now, in the absence of onemember, on reconsideration, another changed his vote resulting in a tie.Section 2 of Rule 56 requires that all efforts be exerted to break a deadlockin the votes. I deplore the inability of the majority to agree to my propositionthat Mr. Justice Hontiveros be asked to participate in the resolution of themotion for withdrawal. I hold it to be fundamental and necessary that thevotes of all the members be taken in cases like this.

Mr. Justice Perfecto stated, for purposes of completeness of the narration offacts, that when the petition to withdraw the appeal was submitted forresolution of this Court two days after this petition was filed, five justicesvoted to grant and five others voted to deny, and expressed the opinion thatsince then, according to the rules, the petition should have been considereddenied. Said first vote took place many days before the one alluded to by Mr.Justice Padilla.

Mr. Justice Tuason states: The motion to withdraw the appeal was first votedupon with the result that 5 were granting and 5 for denial. Mr. Justice

Briones was absent and it was decided to wait for him. Some time later, thesame subject was deliberated upon and a new voting was had, on whichoccasion all the 11 justices were present. The voting stood 7 for allowing thedismissal of the appeal and 4 against. Mr. Justice Perfecto and Mr. JusticeBriones expressed the intention to put in writing their dissents. Before thesedissents were filed, about one month afterwards, without any previous noticethe matter was brought up again and re-voted upon; the result was 5 to 5.Mr. Justice Hontiveros, who was ill but might have been able to attend ifadvised of the necessity of his presence, was absent. As the voting thusstood, Mr. Justice Hontiveros' vote would have changed its result unless hechanged his mind, a fact of which no one is aware. My opinion is that sincethere was no formal motion for reconsideration nor a previous notice that thismatter would be taken up once more, and since Mr. Justice Hontiveros hadevery reason to believe that the matter was over as far as he was

concerned, this Justice's vote in the penultimate voting should, if he was notto be given an opportunity to recast his vote, be counted in favor of the votefor the allowance of the motion to withdraw. Above all, that opportunityshould not have been denied on grounds of pure technicality neverinvokedbefore. I counted that the proceeding was arbitrary and illegal.

The resolution does not recite all the reasons why Mr. Justice Hontiveros did notparticipate in that last two votings and why it became unnecessary to wait for him anyfurther to attend the sessions of the Court and to cast his vote on the question.

Appellant Krivenko moved for the reconsideration of the denial of his withdrawal ofappeal, alleging that it became moot in view of the ruling made by the Secretary ofJustice in circular No. 128, thus giving us a hint that the latter, wittingly or unwittingly,had the effect of trying to take away from the Supreme Court the decision of an

important constitutional question, submitted to us in a pending litigation. We deniedthe motion for reconsideration. We did not want to entertain any obstruction to thepromulgation of our decision.

If the processes had in this case had been given the publicity suggested by us for allthe official actuations of this Supreme Court, it should have been known by the wholeworld that since July, 1946, that is, more than a year ago, the opinion of the membersof this Court had already been crystallized to the effect that under the Constitution,aliens are forbidded from acquiring urban lands in the Philippines, and it must have

known that in this case a great majority had voted in that sense on February 24,1947.

The constitutional question involved in this case cannot be left undecided withoutjeopardizing public interest. The uncertainty in the public mind should be dispelledwithout further delay. While the doubt among the people as to what is the correctanswer to the question remains to be dissipated, there will be uneasiness,undermining public morale and leading to evils of unpredictable extent. This SupremeTribunal, by overwhelming majority, already knows what the correct answer is, andshould not withhold and keep it for itself with the same zealousness with which theancient families of the Eumolpides and Keryces were keeping the Eleusinianmysteries. The oracle of Delphus must speak so that the people may know for theirguidance what destiny has in store for them.

The great question as to whether the land bequeathed to us by our forefathers shouldremain as one of the most cherished treasures of our people and transmitted byinheritance to unending generations of our race, is not a new one. The long chain ofland-grabbing invasions, conquests, depredations, and colonial imperialism recordedin the darkest and bloodiest pages of history from the bellicose enterprises of theHittites in the plains of old Assyria, irrigated by the waters of the Tigris and Euphrates,and the invasion of Egypt by the Hyksos, up to the conquests of Hernan Cortes andPizarro, the achievements of Cecil Rhodes, and the formation of the Spanish,Portuguese, Dutch, French and German colonial empires, had many of its iron linksforged in our soil since Magellan, the greatest navigator of all history, had set foot atLimasawa and paid, for his daring enterprises, with his life at the hands of Lapulapu'smen in the battle of Mactan.

Since then, almost four centuries ago, our people have continuously been engaged inan unrelentless struggle to defend the national patrimony against the aggressiveonslaughts of foreigners bent on grabbing our lands. First came theSpanish encomenderos and other gratuitous concessioners who were granted by theSpanish crown immense areas of land. Immediately came the friars and otherreligious corporations who, notwithstanding their sacred vow of poverty, felt theirgreed whetted by the bountiful opportunities for easy and unscrupulous enrichment.Taking advantage of the uncontrollable religious leadership, on one side, and of theChristian virtues of obedience, resignation, humility, and credulity of a people who,after conversion to Catholicism, embraced with tacit faith all its tenets and practicedthem with the loyalty and fidelity of persons still immune from the disappointmentsand bitterness caused by the vices of modern civilization, the foreign religious ordersset aside all compunction to acquire by foul means many large estates. Through thepractice of confession and other means of moral intimidation, mostly based on the


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eternal tortures of hell, they were able to obtain by donation or by will the lands ofmany simple and credulous Catholics who, in order to conquer the eternal bliss ofheaven, renounced all their property in favor of religious orders and priests, manyunder the guise of chaplaincies or other apparently religious purposes, leaving indestitute their decendants and relatives. Thus big religious landed estates wereformed, and under the system unbearable iniquities were committed. The case of thefamily of Rizal is just an index of the situation, which, under the moral leadership ofthe hero, finally drove our people into a national revolution not only against theSpanish sovereignty under which the social cancer had grown to unlimitedproportions.

Profiting from the lessons of history, the Delegates to our Constitutional Conventionfelt it their duty to insert in the fundamental law effective guarantees for conservingthe national patrimony, the wisdom of which cannot be disputed in a world dividedinto nations and nationalities. In the same way that scientists and technicians resortedto radar, sonars, thermistors and other long range detection devices to stave off far-away enemy attacks in war, said Delegates set the guarantees to ward off openinroads or devious incursions into the national patrimony as a means of insuring racialsafety and survival.

When the ideal of one world should have been translated into reality, thoseguarantees might not be needed and our people may eliminate them. But in the

meantime, it is our inescapable devoir, as the ultimate guardians of the Constitution,never to neglect the enforcement of its provisions whenever our action is called uponin a case, like the one now before us.

One of the fundamental purposes of the government established by our Constitutionis, in its very words, that it "shall conserve and develop the patrimony of the nation."That mandate is addressed to all departments and branches of our government,without excluding this Supreme Court. To make more specific the mandate, ArticleXIII has been inserted so as to avoid all doubt that all the natural resources of thecountry are reserved to Filipino citizens. Our land is the most important of our naturalresources. That land should be kept in the hands of our people until, by constitutionalamendment, they should decide to renounce that age-long patrimony. Save byhereditary succession the only exception allowed by the Constitution no

foreigner may by any means acquire any land, any kind of land, in the Philippines.That was the overwhelming sentiment prevailing in the Constitutional Convention, thatwas the overpowering desire of the great majority of the Delegates, that was thedominating thought that was intended to be expressed in the great document, thatwas what the Committee on Style the drafter of the final text has written in theConstitution, and that was what was solemnly ratified in the plebiscite by our people,who then were rankling by the sore spot of illegally Japanized Davao.

The urgency of settling once and forever the constitutional question raised inthis case cannot be overemphasized. If we should decide this question aftermany urban lots have been transferred to and registered in the name of ali

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