Borromeo vs. Mariano

A Judge of First Instance may be made a judge of another district only with his consent. The proviso in Section 155 of the Administrative Code, which states that "nothing herein shall be construed to prevent a judge of first instance of one district from being appointed to be judge of another district," does not authorize the Governor-General to compel a judge to accept a transfer to another district against his will, as such a power could be used to discipline judges or as an indirect means of removal, thereby nullifying the impeachment provisions of the law.

Andres Borromeo and Fermin Mariano were both Judges of First Instance in the Philippine Islands, appointed by the Governor-General with the consent of the Philippine Senate. Under the Administrative Code, judges of first instance are appointed to serve until they reach the age of 65 years, with one judge commissioned for each judicial district. The Judiciary Law recognizes separate and distinct judicial offices for each district, and judges may only be detailed to temporary duty in another district for land registration cases and vacation duty. The concluding portion of Section 155 of the Administrative Code contains a proviso stating that nothing therein shall be construed to prevent a judge of first instance of one district from being appointed to be judge of another district.

Andres Borromeo was appointed and commissioned as Judge of the Twenty-fourth Judicial District, effective July 1, 1914. He duly qualified and took possession of the office on that date. On February 25, 1920, he was appointed Judge of the Twenty-first Judicial District, and Fermin Mariano was appointed Judge of the Twenty-fourth Judicial District. Judge Borromeo has since the latter date consistently refused to accept appointment to the Twenty-first Judicial District.

Under the Administrative Code, Judges of First Instance are appointed by the Governor-General with the consent of the Philippine Senate to serve until they reach the age of 65 years. One Judge of First Instance is commissioned for each judicial district. The oath of office of the judge is filed with the clerk of the court to which the affiant pertains and shall be entered upon its records. Judges of First Instance may only be detailed by the Secretary of Justice to temporary duty in a district other than their own for the purpose of trying land registration cases and for vacation duty. The concluding portion of Section 155 of the Administrative Code states, "but nothing herein shall be construed to prevent a judge of first instance of one district from being appointed to be judge of another district." A Judge of First Instance can be removed from office by the Governor-General only if in the judgment of the Supreme Court sufficient cause shall exist involving serious misconduct or inefficiency in office.

The Attorney-General brought to the Court's attention Act No. 396, enacted by the Philippine Commission in 1902, which provided that any judge of a Court of First Instance may be transferred from one judicial district to another by order of the Civil Governor, with the advice and consent of the Commission. However, Act No. 396 was thrice repealed by the Philippine Legislature—first impliedly by the enactment of Act No. 2347, the Judiciary Reorganization Act, and subsequently expressly by the Administrative Code of 1916 and the Administrative Code of 1917. Instead of continuing the phraseology of Section 4 of Act No. 396, the Legislature merely included the proviso to which the Court alluded.

• Right to Office: Petitioner argued that he was lawfully entitled to the possession of the office of Judge of the Court of First Instance of the Twenty-fourth Judicial District, having been appointed and commissioned to that position and having duly qualified and taken possession of the office.

• Invalidity of Transfer: Petitioner maintained that the appointment of the respondent to his district was invalid because a Judge of First Instance may be made a judge of another district only with his consent, and he had consistently refused to accept the appointment to the Twenty-first Judicial District.

• Power of Transfer: The Attorney-General argued that the concluding portion of Section 155 of the Administrative Code empowers the Governor-General to appoint a judge of first instance of one district to be judge of another district, and that such transfer may be effected without the consent of the judge concerned.

• Public Welfare: The Attorney-General made a stirring plea for a decision which would work for the public welfare, arguing that under the peculiar conditions existing in the Philippines, it is sometimes well for a judge not to remain indefinitely in a particular district.

• Consent to Transfer: Whether a Judge of First Instance may be appointed to another judicial district without his consent under the proviso to Section 155 of the Administrative Code.

• Judicial Independence: Whether the power to transfer judges from one district to another without their consent would undermine the independence of the judiciary and nullify the impeachment provisions of the Administrative Code.

• Consent to Transfer: No. A Judge of First Instance may be made a judge of another district only with his consent. The proviso to Section 155 of the Administrative Code, interpreted with reference to the law of public officers, does not empower the Governor-General to force upon the judge of one district an appointment to another district against his will, thereby removing him from his district.

• Judicial Independence: Yes. The power to transfer judges without their consent could be used to discipline judges or as an indirect means of removal, thereby nullifying the impeachment section of the Administrative Code and encroaching upon the jurisdiction conferred upon the Supreme Court by the Organic Law.

• Consent to Transfer: The Court applied the cardinal rule of statutory construction requiring the court to give effect to the general legislative intent if that can be discovered within the four corners of the Act. The provisions of the Judiciary Law are plain and unambiguous: Judges of First Instance are appointed judges of the courts of first instance of the respective judicial districts of the Philippines Islands, not judges of first instance of the Philippine Islands. They hold these positions of judges of first instance of definite districts until they resign, retire, or are removed through impeachment proceedings. The intention of the law is to recognize separate and distinct judicial offices. The concluding portion of Section 155 of the Administrative Code, although not beginning with the usual introductory word "provided," is nevertheless in the nature of a proviso and should be construed as such. The office of a proviso is to limit the application of the law, and it is contrary to the nature of a proviso to enlarge the operation of the law. The keyword to the proviso is "appointed," which should be given its usual signification of "to allot, set apart, or designate; nominate or authoritatively assign, as for a use, or to a position or office." Appointment and qualification to office are separate and distinct things. Appointment is the sole act of those vested with the power to make it, while acceptance is the sole act of the appointee. If anyone could refuse appointment as a judge of first instance to a particular district, when once appointment to this district is accepted, he has exactly the same right to refuse an appointment to another district. The Court concluded that the language of the proviso to Section 155 of the Administrative Code, interpreted with reference to the law of public officers, does not empower the Governor-General to force upon the judge of one district an appointment to another district against his will.

• Judicial Independence: The Court reasoned that if a judge could be transferred from one district of the Philippine Islands to another without his consent, it would require no great amount of imagination to conceive how this power could be used to discipline the judge or as an indirect means of removal. A judge who had, by a decision, incurred the ill-will of an attorney or official could, by the insistence of the disgruntled party, be removed from one district, demoted, and transferred to another district, at possibly a loss of salary, all without the consent of the judicial officer. The only recourse of the judicial officer who should desire to maintain his self-respect would be to vacate the office and leave the service. Unless the Court wished to nullify the impeachment section of the Administrative Code, and thus possibly to encroach upon the jurisdiction conferred upon the Supreme Court by the Organic Law, Section 155 must be interpreted so as to make it consistent therewith. The Court also noted that the Philippine Legislature had before it Act No. 396, which expressly provided for the transfer of judges, but preferred not to perpetuate the old law and instead inserted language of their own. The purpose of the Philippine Legislature was clearly to safeguard the interests of the judiciary. The Court further emphasized that great and basic principles long inherent in popular government intended to create an independent judiciary, and that the judiciary has inherent power to preserve its integrity, maintain its dignity, and insure effectiveness in the administration of justice.

• Consent Requirement for Judicial Transfer — A Judge of First Instance may be made a judge of another district only with his consent. The proviso to Section 155 of the Administrative Code does not empower the Governor-General to force upon the judge of one district an appointment to another district against his will, thereby removing him from his district. This doctrine protects the independence of the judiciary and prevents the transfer power from being used as an indirect means of removal or discipline.

• Proviso Construction — The office of a proviso is to limit the application of the law, and it is contrary to the nature of a proviso to enlarge the operation of the law. A proviso which is directly repugnant to the purview or body of an Act is inoperative and void. The Court applied this principle to construe the concluding portion of Section 155 of the Administrative Code as a proviso that limits, rather than expands, the main provisions of the Judiciary Law.

• Appointment and Acceptance — Appointment and qualification to office are separate and distinct things. Appointment is the sole act of those vested with the power to make it, while acceptance is the sole act of the appointee. Persons may be chosen for office at pleasure, but there is no power which can compel a man to accept the office. An appointment may not be made to an office which is not vacant.

• Judicial Independence — The judiciary is one of the coordinate branches of the Government, and its preservation in its integrity and effectiveness is necessary to the present form of Government. Courts have inherent power to preserve their integrity, maintain their dignity, and insure effectiveness in the administration of justice. The power to interfere is the power to control, and the power to control is the power to abrogate. Courts cannot permit themselves to be subordinated to any person or official to which their creator did not itself subordinate them.

• "In our judgment, the language of the proviso to section 155 of the Administrative Code, interpreted with reference to the law of public officers, does not empower the Governor-General to force upon the judge of one district an appointment to another district against his will, thereby removing him from his district." — This passage states the core ratio decidendi of the case, establishing that a judge cannot be transferred without consent.

• "It is our holding that the plaintiff Andres Borromeo is lawfully entitled to the possession of the office of Judge of the Court of First Instance of the Twenty-Fourth Judicial District. It is our judgment that the defendant Fermin Mariano shall be ousted from the office of Judge of the Twenty-fourth Judicial District, and the plaintiff placed in possession of the same." — This is the dispositive portion of the decision, ordering the ouster of the respondent and the reinstatement of the petitioner.

• "The power to interfere is the power to control, and the power to control is the power to abrogate. The sovereign power has given life to the judiciary and nothing less than the sovereign power can take it away or render it useless." — This passage, quoted from Province of Tarlac vs. Gale, articulates the principle of judicial independence that underlies the Court's decision.

• Marbury vs. Madison, 1 Cranch 137 (1803) — Cited as controlling authority for the proposition that when an officer is not removable at the will of the executive, the appointment is not revocable and cannot be annulled, and that the officer has the absolute unconditional power of accepting or rejecting the appointment.

• State of Louisiana vs. Downes, 21 La. Ann. 490 (1869) — Cited as authority that a judge of a court could only be removed from office by impeachment, by address of the Legislature, or by proceeding under the intrusion act, and that appointment to an office which has legally been filled without the vacancy being first declared according to law is an absolute nullity.

• Severino vs. Governor-General and Provincial Board of Occidental Negros, 16 Phil. 366 (1910) — Cited for the proposition that the government in the Philippines possesses a complete governmental organization with executive, legislative, and judicial departments exercising functions as independent of each other as the Federal or State governments.

• Province of Tarlac vs. Gale, 26 Phil. 338 (1913) — Cited for the principle that the judiciary is one of the coordinate branches of the Government and has inherent power to preserve its integrity, maintain its dignity, and insure effectiveness in the administration of justice.

• In re Allen, 2 Phil. 630 (1903) — Cited for the principle of statutory construction that the court should give effect to the general intention of the legislator and adopt that construction which gives effect to all the provisions of the law.

• Section 155, Administrative Code — The provision at the center of the dispute, which states that judges of first instance may only be detailed to temporary duty in a district other than their own for land registration cases and vacation duty, with the concluding proviso that "nothing herein shall be construed to prevent a judge of first instance of one district from being appointed to be judge of another district." The Court construed this proviso as not authorizing the transfer of a judge without his consent.

• Sections 65, 66, 148, 154, 128, and 173, Administrative Code — These provisions establish that Judges of First Instance are appointed by the Governor-General with the consent of the Philippine Senate to serve until they reach the age of 65 years, that one judge is commissioned for each judicial district, that the oath of office is filed with the clerk of the court, and that a judge can only be removed by the Governor-General if in the judgment of the Supreme Court sufficient cause shall exist involving serious misconduct or inefficiency in office.

• Section 4, Act No. 396 — The obsolete law cited by the Attorney-General which expressly provided that any judge of a Court of First Instance may be transferred from one judicial district to another by order of the Civil Governor with the advice and consent of the Commission. The Court noted that this Act was thrice repealed by the Philippine Legislature, indicating the Legislature's preference not to perpetuate the old law.

• Section 26, Jones Act — The provision stating that the Judges of the Courts of First Instance shall be appointed by the Governor-General, by and with the advice and consent of the Philippine Senate, which the dissenting justice cited in support of the Governor-General's power to transfer judges.

Justices Araullo, Street, and Avanceña concurred with the decision. Justice Johnson signed the original decision but was not present when the motion for reconsideration was filed and when the decision was promulgated.

• Justice Villamor — Dissented, arguing that the interpretation given by the majority to the last clause of Section 155 of the Administrative Code, requiring the consent of a judge before transfer, is an amendment of the law which should be done only by the legislative branch. Justice Villamor contended that the provisions of the law being clear, the court should apply it as passed by the legislature without attaching conditions not required. He argued that a transferred judge continues being a judge with the same office, attributes, and privileges, with the sole difference as to the place where jurisdiction is exercised. He further argued that the executive power to effect transfers is subject to the approval of the Senate, and that the Governor-General has the discretion to make transfers for the good of the public service. He also raised the question of whether the court has jurisdiction to control the official acts of the Governor-General, citing Severino vs. Governor-General and Provincial Board of Occidental Negros for the proposition that the court does not have jurisdiction to control the official acts of the Governor-General.