G.R. No. 88831 November 8, 1990

MATEO CAASI, petitioner, vs.THE HON. COURT OF APPEALS and MERITO C. MIGUEL, respondents.

G.R. No. 84508 November 13, 1990

ANECITO CASCANTE petitioner, vs.THE COMMISSION ON ELECTIONS and MERITO C. MIGUEL, respondents.

Ireneo B. Orlino for petitioner in G.R. Nos. 88831 & 84508.

Montemayor & Montemayor Law Office for private respondent.

 

GRIÑO-AQUINO, J.:

These two cases were consolidated because they have the same objective; the disqualification under Section 68 of the Omnibus Election Code of the private respondent, Merito Miguel for the position of municipal mayor of Bolinao, Pangasinan, to which he was elected in the local elections of January 18, 1988, on the ground that he is a green card holder, hence, a permanent resident of the United States of America, not of Bolinao.

G.R. No. 84508 is a petition for review on certiorari of the decision dated January 13, 1988 of the COMELEC First Division, dismissing the three (3) petitions of Anecito Cascante (SPC No. 87-551), Cederico Catabay (SPC No. 87-595) and Josefino C. Celeste (SPC No. 87-604), for the disqualification of Merito C. Miguel filed prior to the local elections on January 18, 1988.

G.R. No. 88831, Mateo Caasi vs. Court of Appeals, et al., is a petition for review of the decision dated June 21, 1989, of the Court of Appeals in CA-G.R. SP No. 14531 dismissing the petition for quo warranto filed by Mateo Caasi, a rival candidate for the position of municipal mayor of Bolinao, Pangasinan, also to disqualify Merito Miguel on account of his being a green card holder.

In his answer to both petitions, Miguel admitted that he holds a green card issued to him by the US Immigration Service, but he denied that he is a permanent resident of the United States. He allegedly obtained the green card for convenience in order that he may freely enter the United States for his periodic medical examination and to visit his children there. He alleged that he is a permanent resident of Bolinao, Pangasinan, that he voted in all previous elections, including the plebiscite on February 2,1987 for the ratification of the 1987 Constitution, and the congressional elections on May 18,1987.

After hearing the consolidated petitions before it, the COMELEC with the exception of Commissioner Anacleto Badoy, Jr., dismissed the petitions on the ground that:

The possession of a green card by the respondent (Miguel) does not sufficiently establish that he has abandoned his residence in the Philippines. On the contrary, inspite (sic) of his green card, Respondent has sufficiently indicated his intention to continuously reside in Bolinao as shown by his having voted in successive elections in said municipality. As the respondent meets the basic requirements of citizenship and residence for candidates to elective local officials (sic) as provided for in Section 42 of the Local Government Code, there is no legal obstacle to his candidacy for mayor of Bolinao, Pangasinan. (p. 12, Rollo, G.R. No. 84508).

In his dissenting opinion, Commissioner Badoy, Jr. opined that:

A green card holder being a permanent resident of or an immigrant of a foreign country and respondent having admitted that he is a green card holder, it is incumbent upon him, under Section 68 of the Omnibus Election Code, to prove that he "has waived his status as a permanent resident or immigrant" to be qualified to run for elected office. This respondent has not done. (p. 13, Rollo, G.R. No. 84508.)

In G.R. No. 88831, "Mateo Caasi, petitioner vs. Court of Appeals and Merito Miguel, respondents," the petitioner prays for a review of the decision dated June 21, 1989 of the Court of Appeals in CA-G.R. SP No. 14531 "Merito C. Miguel, petitioner vs. Hon. Artemio R. Corpus, etc., respondents," reversing the decision of the Regional Trial Court which denied Miguel's motion to dismiss the petition for quo warranto filed by Caasi. The Court of Appeals ordered the regional trial court to dismiss and desist from further proceeding in the quo warranto case. The Court of Appeals held:

... it is pointless for the Regional Trial Court to hear the case questioning the qualification of the petitioner as resident of the Philippines, after the COMELEC has ruled that the petitioner meets the very basic requirements of citizenship and residence for candidates to elective local officials (sic) and that there is no legal obstacles (sic) for the candidacy of the petitioner, considering that decisions of the Regional Trial Courts on quo warranto cases under the Election Code are appealable to the COMELEC. (p. 22, Rollo, G.R. No. 88831.)

These two cases pose the twin issues of: (1) whether or not a green card is proof that the holder is a permanent resident of the United States, and (2) whether respondent Miguel had waived his status as a permanent resident of or immigrant to the U.S.A. prior to the local elections on January 18, 1988.

Section 18, Article XI of the 1987 Constitution provides:

Sec. 18. Public officers and employees owe the State and this Constitution allegiance at all times, and any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law.

In the same vein, but not quite, Section 68 of the Omnibus Election Code of the Philippines (B.P. Blg. 881) provides:

SEC. 68. Disqualifications ... Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws. (Sec. 25, 1971, EC).

In view of current rumor that a good number of elective and appointive public officials in the present administration of President Corazon C. Aquino are holders of green cards in foreign countries, their effect on the holders' right to hold elective public office in the Philippines is a question that excites much interest in the outcome of this case.

In the case of Merito Miguel, the Court deems it significant that in the "Application for Immigrant Visa and Alien Registration" (Optional Form No. 230, Department of State) which Miguel filled up in his own handwriting and submitted to the US Embassy in Manila before his departure for the United States in 1984, Miguel's answer to Question No. 21 therein regarding his "Length of intended stay (if permanently, so state)," Miguel's answer was,"Permanently."

On its face, the green card that was subsequently issued by the United States Department of Justice and Immigration and Registration Service to the respondent Merito C. Miguel identifies him in clear bold letters as a RESIDENT ALIEN. On the back of the card, the upper portion, the following information is printed:

Alien Registration Receipt Card.

Person identified by this card is entitled to reside permanently and work in the United States." (Annex A pp. 189-190, Rollo of G.R. No. 84508.)

Despite his vigorous disclaimer, Miguel's immigration to the United States in 1984 constituted an abandonment of his domicile and residence in the Philippines. For he did not go to the United States merely to visit his children or his doctor there; he entered the limited States with the intention to have there permanently as evidenced by his application for an immigrant's (not a visitor's or tourist's) visa. Based on that application of his, he was issued by the U.S. Government the requisite green card or authority to reside there permanently.

Immigration is the removing into one place from another; the act of immigrating the entering into a country with the intention of residing in it.

An immigrant is a person who removes into a country for the purpose of permanent residence. As shown infra 84, however, statutes sometimes give a broader meaning to the term "immigrant." (3 CJS 674.)

As a resident alien in the U.S., Miguel owes temporary and local allegiance to the U.S., the country in which he resides (3 CJS 527). This is in return for the protection given to him during the period of his residence therein.

Aliens reading in the limited States, while they are permitted to remain, are in general entitled to the protection of the laws with regard to their rights of person and property and to their civil and criminal responsibility.

In general, aliens residing in the United States, while they are permitted to remain are entitled to the safeguards of the constitution with regard to their rights of person and property and to their civil and criminal responsibility. Thus resident alien friends are entitled to the benefit of the provision of the Fourteenth Amendment to the federal constitution that no state shall deprive "any person" of life liberty, or property without due process of law, or deny to any person the equal protection of the law, and the protection of this amendment extends to the right to earn a livelihood by following the ordinary occupations of life. So an alien is entitled to the protection of the provision of the Fifth Amendment to the federal constitution that no person shall be deprived of life, liberty, or property without due process of law. (3 CJS 529-530.)

Section 18, Article XI of the 1987 Constitution which provides that "any public officer or employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law" is not applicable to Merito Miguel for he acquired the status of an immigrant of the United States before he was elected to public office, not "during his tenure" as mayor of Bolinao, Pangasinan.

The law applicable to him is Section 68 of the Omnibus Election Code (B.P. Blg. 881), which provides:

xxx xxx xxx

Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless such person has waived his status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election laws.'

Did Miguel, by returning to the Philippines in November 1987 and presenting himself as a candidate for mayor of Bolinao in the January 18,1988 local elections, waive his status as a permanent resident or immigrant of the United States?

To be "qualified to run for elective office" in the Philippines, the law requires that the candidate who is a green card holder must have "waived his status as a permanent resident or immigrant of a foreign country." Therefore, his act of filing a certificate of candidacy for elective office in the Philippines, did not of itself constitute a waiver of his status as a permanent resident or immigrant of the United States. The waiver of his green card should be manifested by some act or acts independent of and done prior to filing his candidacy for elective office in this country. Without such prior waiver, he was "disqualified to run for any elective office" (Sec. 68, Omnibus Election Code).

Respondent Merito Miguel admits that he holds a green card, which proves that he is a permanent resident or immigrant it of the United States, but the records of this case are starkly bare of proof that he had waived his status as such before he ran for election as municipal mayor of Bolinao on January 18, 1988. We, therefore, hold that he was disqualified to become a candidate for that office.

The reason for Section 68 of the Omnibus Election Code is not hard to find. Residence in the municipality where he intends to run for elective office for at least one (1) year at the time of filing his certificate of candidacy, is one of the qualifications that a candidate for elective public office must possess (Sec. 42, Chap. 1, Title 2, Local Government Code). Miguel did not possess that qualification because he was a permanent resident of the United States and he resided in Bolinao for a period of only three (3) months (not one year) after his return to the Philippines in November 1987 and before he ran for mayor of that municipality on January 18, 1988.

In banning from elective public office Philippine citizens who are permanent residents or immigrants of a foreign country, the Omnibus Election Code has laid down a clear policy of excluding from the right to hold elective

public office those Philippine citizens who possess dual loyalties and allegiance. The law has reserved that privilege for its citizens who have cast their lot with our country "without mental reservations or purpose of evasion." The assumption is that those who are resident aliens of a foreign country are incapable of such entire devotion to the interest and welfare of their homeland for with one eye on their public duties here, they must keep another eye on their duties under the laws of the foreign country of their choice in order to preserve their status as permanent residents thereof.

Miguel insists that even though he applied for immigration and permanent residence in the United States, he never really intended to live there permanently, for all that he wanted was a green card to enable him to come and go to the U.S. with ease. In other words, he would have this Court believe that he applied for immigration to the U.S. under false pretenses; that all this time he only had one foot in the United States but kept his other foot in the Philippines. Even if that were true, this Court will not allow itself to be a party to his duplicity by permitting him to benefit from it, and giving him the best of both worlds so to speak.

Miguel's application for immigrant status and permanent residence in the U.S. and his possession of a green card attesting to such status are conclusive proof that he is a permanent resident of the U.S. despite his occasional visits to the Philippines. The waiver of such immigrant status should be as indubitable as his application for it. Absent clear evidence that he made an irrevocable waiver of that status or that he surrendered his green card to the appropriate U.S. authorities before he ran for mayor of Bolinao in the local elections on January 18, 1988, our conclusion is that he was disqualified to run for said public office, hence, his election thereto was null and void.

WHEREFORE, the appealed orders of the COMELEC and the Court of Appeals in SPC Nos. 87-551, 87-595 and 87-604, and CA-G.R. SP No. 14531 respectively, are hereby set aside. The election of respondent Merito C. Miguel as municipal mayor of Bolinao, Pangasinan is hereby annulled. Costs against the said respondent.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Gancayco, Padilla, Bidin, Sarmiento, Medialdea and Regalado, JJ., concur.

Feliciano, J., is on leave.

G.R. No. L-6379             September 29, 1954

In the matter of the petition of WILFRED UYTENGSU to be admitted a citizen of the Philippine. WILFRED UYTENGSU, petitioner-appellee, vs.REPUBLIC OF THE PHILIPPINES, oppositor-appellant.

Manuel A. Zosa for appellee.Office of the Solicitor General Juan R. Liwag and Solicitor Isidro C. Borromeo for appellant.

CONCEPCION, J.:

This is an appeal taken by the Solicitor General from a decision of the Court of First Instance of Cebu, granting the application of Wilfred Uytengsu, for naturalization as citizen of the Philippines.

The main facts are not disputed. Petitioner-appellee was born, of Chinese parents, in Dumaguete, Negros Oriental on October 6, 1927. He began his primary education at the Saint Theresa's College in said municipality Subsequently, he attended the Little Flower of Jesus Academy, then the San Carlos College and, still later the Siliman University — all in the same locality — where he completed the secondary course. Early in 1946, he studied, for one semester, in the Mapua Institute of Technology, in Manila. Soon after, he went to the United States, where, from 1947 to 1950, he was enrolled in the Leland Stanford Junior University, in California, and was graduated, in 1950, with the degree of Bachelor of Science. In April of the same year he returned to the Philippines for four (4) months vacation. Then, to be exact, on July 15, 1950, his present application for naturalization was filed. Forthwith, he returned to the United States and took a post-graduate course, in chemical engineering, in another educational institution, in Fort Wayne, Indiana. He finished this course in July 1951; but did not return to the Philippines until October 13, 1951. Hence, the hearing of the case, originally scheduled to take place on July 12, 1951, had to be postponed on motion of counsel for the petitioner.

The only question for the determination in this appeal is whether or not the application for naturalization may be granted, notwithstanding the fact that petitioner left the Philippines immediately after the filing of his petition and did not return until several months after the first date set for the hearing thereof. The Court of First Instance of Cebu decided this question in the affirmative and accordingly rendered judgment for the petitioner. The Solicitor General, who maintains the negative, has appealed from said judgment.

Section 7 of Commonwealth Act No. 473 reads as follows:

Any person desiring to acquire Philippine citizenship shall file with the competent court, a petition in triplicate, accompanied by two photographs of the petitioner, setting forth his name and surname, his present and former place of residence; his occupation; the place and date of his birth; whether single or married and if the father of children, the name, age birthplace and residence of the wife and of each of the children; the approximate date of his arrival in the Philippines, the name of the port of debarkation, and if he remembers it, the name of the ship on which he came; a declaration that he has the qualifications required by this Act, specifying the same, and that he is not disqualified for naturalization under the provision of this Act; that he has complied with the requirements of section five of this Act, and that he will reside continuously in the Philippines from the date of the filing of the petition up to the time of his admission to Philippine citizenship ..." (Emphasis supplied.)

In conformity with this provision, petitioner stated in paragraph 13 of his application:

. . . I will reside continuously in the Philippine from the date of the filing of my petition up to the time of my admission to Philippine citizenship. (Record on Appeal, page 3.)

Petitioner contends, and the lower court held, that the word "residence", as used in the aforesaid provision of the Naturalization Law, is synonymous with domicile, which, once acquired, is not lost by physical absence, until another domicile is obtained, and that, from 1946 to 1951, he continued to be domiciled in, and hence a resident of the Philippines, his purpose in staying in the United States, at that time, being merely to study therein.

It should be noted that to become a citizen of the Philippines by naturalization, one must reside therein for not less than 10 years, except in some special cases, in which 5 years of residence is sufficient (sections 2 and 3, Commonwealth Act No. 473). Pursuant to the provision above quoted, he must, also, file an application stating therein, among other things, that he "has the qualifications required" by law. Inasmuch as these qualifications

include the residence requirement already referred to, it follows that the applicant must prove that he is a residence of the Philippines at the time, not only of the filing of the application, but, also, of its hearing. If the residence thus required is the actual or constructive permanent home, otherwise known as legal residence or domicile, then the applicant must be domiciled in the Philippines on both dates. Consequently, when section 7 of Commonwealth Act No. 473 imposes upon the applicant the duty to state in his sworn application "that he will reside continuously in the Philippines" in the intervening period, it can not refer merely to the need of an uninterrupted domicile or legal residence, irrespective of actual residence, for said legal residence or domicile is obligatory under the law, even in the absence of the requirement contained in said clause, and, it is well settled that, whenever possible, a legal provision must not be so construed as to be a useless surplusage, and, accordingly, meaningless, in the sense of adding nothing to the law or having no effect whatsoever thereon. This consequences may be avoided only by construing the clause in question as demanding actual residence in the Philippines from the filing of the petition for naturalization to its determination by the court.

Indeed, although the words "residence" and "domicile" are often used interchangeably, each has, in strict legal parlance, a meaning distinct and different from that of the other.

x x x           x x x           x x x

. . . There is a decided preponderance of authority to the effect that residence and domicile are notsynonymous in connection with citizenship, jurisdiction, limitations, school privileges, probate and succession.

. . . the greater or less degree of permanency contemplated or intended furnishes a clue to the sometimes shadowy distinction between residence and domicile. To be a resident one must be physically present in that place for a longer or shorter period of time. "The essential distinction between residence and domicile is this: the first involves the intent to leave when the purpose for which he has taken up his abode ceases; the other has no such intent, the abiding is animo manendi. One may seek a place for purposes of pleasure, of business, or of health. If his intent be to remain it becomes his domicile; if his intent is to leave as soon as his purpose is accomplished, it is his residence. Perhaps the most satisfactory definition is that one is a resident of a place from which his departure is in indefinite as to time, definite as to purpose; and for this purpose he has made the place his temporary home.

For many legal purposes there is a clear distinction between "residence" and "domicile". A person may hold an office or may have business or employment or other affair which requires him to reside at a particular place. His intention is to remain there while the office or business or employment or other concern continues; but he has no purpose to remain beyond the time the interest exists which determines his place of abode. Domicile is characterized by the animus manendi. . . . .

Residence and domicile are not to be held synonymous. Residence is an act. Domicile is an act coupled with an intent. A man may have a residence in one state or country and his domicile in another, and he may be a nonresident of the date of his domicile in the sense that his place of actual residence is not there. Hence the great weight of authorities. — rightly so, as we think — that a debtor, although his legal domicile is in the state, may reside or remain out of it for so long a time and under such circumstances as to acquire so to speak, an actual nonresidence within the meaning of the attachment statute.

Domicile is a much broader term than residence. A man may have his domicile in one state and actually reside in another, or in a foreign country. If he has once had a residence in a particular place and removed to another, but with the intention of returning after a certain time, however long that may be, his domicile is at the former residence and his residence at the place of his temporary habitation. Residence and habitation are generally regarded as synonymous. A resident and an inhabitant mean the same thing. A person resident is defined to be one "dwelling and having his abode in any place," "an inhabitant," "one that resides in a place." The question of domicile is not involved in determining whether a person is a resident of a state or country. The compatability of domicile in one state with actual residence in another has been asserted and acted upon in the law of attachment by the Courts of New York, New Jersey, Maryland, North Carolina, Mississippi and Wisconsin.

Residence indicates permanency of occupation, distinct from lodging or boarding, or temporary occupation. It does not include as much as domicile, which requires intention combined with residence." ... "one may seek a place for purposes of pleasure, of business, or of health. If his intent be to remain, it becomes his domicile; if his intent be to leave as soon as his purpose is accomplished, it is his residence."

The derivation of the two words "residence" and "domicile" fairly illustrates the distinction in their meaning. A home (domus) is something more than a temporary place of remaining (residendi) however long such stay may continue.

"While, generally speaking, domicile and residence mean one and the same thing, residence combined with intention to remain, constitutes domicile while an established abode, fixed permanently for a time [!] for business or other purposes, constitutes a residence, though there may be an intent, existing all the while, to return to the true domicile."

There is a difference between domicile and residence. "Residence" is used to indicate the place of abode, whether permanent or temporary; "domicile" denotes a fixed permanent residence to which, when absent, one has the intention of returning. A man may have a residence in one place and a domicile in another." "Residence is not domicile, but domicile is residence coupled with intention to remain for an unlimited time. A man can have but one domicile for one and the same purpose at any time, but he may have numerous places of residence. His place of residence generally is his place of domicile, but is not by any means necessarily as, since no length of residence without intention of remaining will constitute domicile. (Kennan on Residence and Domicile, pp. 26, 31-35)

Such distinction was, in effect, applied by this Court in the case of Domingo Dy, alias William Dy Chinco vs. Republic of the Philippines (92 Phil., 278). The applicant in that case was born in Naga, Camarines Sur, on May 19, 1915. "At the age of seven or eight, or in the year 1923, he went to China, with his mother to study, and while he used to go back and forth from China to the Philippines during school vacations, he did not come back to live permanently here until the year 1937." He applied for naturalization in 1949. The question arose whether, having been domiciled in the Philippines for over 30 years, he could be naturalized as a citizen of the Philippines, without a previous declaration of intention, in view of section 6 of Commonwealth Act No. 473 (as amended by Commonwealth Act No. 535), exempting from such requirement "those who have resided in the Philippines continuously for a period of thirty years or more, before filing their application." This Court decided the question in the negative, upon that ground that "actual and substantial residence within the Philippines, not legal residence", or "domicile," alone, is essential to the enjoyment of the benefits of said exemption.

If said actual and substantial residence — not merely legal residence — is necessary to dispense with the filing of a declaration of intention, it is even more necessary during the period intervening from the filing of the petition for naturalization to the date of the hearing thereof. In this connection, it should be remembered that, upon the filing of said petition, the clerk of court is ordained by law to publish it with a notice of the date of the hearing, which pursuant to section 7 of Act No. 2927, shall not be less than 60 days from the date of the last publication. This period was extended to two (2) months, by section 7 of Commonwealth Act No. 473, and then to six (6) months, by Republic Act No. 530. The purpose of said period, particularly the extensions thereof — of making a declaration of intention at least one (1) year prior to the filing of the application — is not difficult to determine. It is nothing but to give the government sufficient time to check the truth of the statements made in said declaration of intention, if any, and in the application for naturalization, especially the allegations therein relative to the possession of the qualifications and none of the disqualifications provided by law. Although data pertinent to said qualifications and disqualifications could generally be obtained from persons familiar with the applicant, it is to be expected that the information thus secured would consist, mainly, of conclusions and opinions of said individuals. Indeed, what else can they be expected to say on whether the applicant has a good moral character; or whether he believes in the principles underlying our Constitution; or whether his conduct has been proper and irreproachable; or whether he is suffering from mental alienation or incurable contagious diseases, or has not mingled socially with the Filipinos, or has not evinced a sincere desire to learn and embrace the customs, traditions and ideals of the Filipinos? Obviously, the Government would be in a better position to draw its own conclusions on these matters if its officers could personally observe the behavior of the applicant and confer with him if necessary.

In the case at bar, the Government has not had any chance whatsoever to thus keep a watchful eye on petitioner herein. Immediately after the filing of his application — and notwithstanding the explicit promise therein made by him, under oath, to the effect that he would reside continuously in the Philippines "from the date of the filing of his petition up to the time of his admission to Philippine citizenship" — he returned to the United States, where he stayed, continuously, until October 13, 1951. For this reason, when this case was called for hearing, for the first time, on July 12, 1951, his counsel had to move for continuance. The adverse effect of such absence upon the opportunity needed by the Government to observe petitioner herein was enhanced by the fact that, having been born in the Philippines, where he finished his primary and secondary education, petitioner did not have to file, and did not file, a declaration of intention prior to the filing of his petition for naturalization. Thus, the Government had no previous notice of his intention to apply for naturalization until the filing of his petition and could not make the requisite investigation prior thereto.

Moreover, considering that petitioner had stayed in the United States, practically without interruption, from early in 1947 to late in 1951, or for almost five (5) years, over three years and a half of which preceded the filing of the application, it may be said that he resided — as distinguished from domiciled — in the United States at that time and for over a year subsequently thereto. In fact, under our laws, residence for six (6) months suffices to entitle a person to exercise the right of suffrage in a given municipality (section 98), Republic Act No. 180); residence for one (1) year, to run for a seat in the House of Representatives (sec. 7, Art. VI, of the Constitution); and residence for two (2) years, to run for the Senate (sec. 4, Art. VI, of the Constitution). In some states of the United States, a residence of several weeks or months is enough to establish a domicile for purposes of divorce. Although in these cases the word "residence" has been construed, generally, to mean "domicile" — that it to say, actual residence, coupled with the intention to stay permanently, at least at the time of the acquisition of said domicile — it would seem apparent from the foregoing that the length of petitioner's habitation in the United States amply justifies the conclusion that he was residing abroad when his application for naturalization was filed and for fifteen (15) months thereafter, and that this is precisely the situation sought to be forestalled by the law in enjoining the applicant to "reside continuously in the Philippines from the date of the filing of the petition up to the time of his admission to Philippine citizenship," unless this legal mandate — which did not exist under Act No. 2927, and was advisedly inserted, therefore, by section 7 of Commonwealth Act No. 473 — were to be regarded as pure verbiage, devoid, not only, of any force or effect, but, also, of any intent or purpose, as it would, to our mind, turn out to be, were we to adopt petitioner's pretense. 1âwphïl.nêt

In short, we are of the opinion that petitioner herein has not complied with the requirements of section 7 of Commonwealth Act No. 473, and with the aforementioned promise made by him in his application, and, accordingly, is not entitled, in the present proceedings, to a judgment in his favor. Wherefore, the decision appealed from is hereby reversed, and the case dismissed, with costs against the petitioner, but without prejudice to the filing of another application, if he so desires, in conformity with law. It is so ordered.

Pablo, Bengzon, Padilla, Reyes, A., Jugo, Bautista Angelo, and Reyes, J.B.L., J., concur.

G.R. No. 119976 September 18, 1995

IMELDA ROMUALDEZ-MARCOS, petitioner, vs.COMMISSION ON ELECTIONS and CIRILO ROY MONTEJO, respondents.

 

KAPUNAN, J.:

A constitutional provision should be construed as to give it effective operation and suppress the mischief at which it is aimed. 1 The 1987 Constitution mandates that an aspirant for election to the House of Representatives be "a registered voter in the district in which he shall be elected, and a resident thereof for a period of not less than one year immediately preceding the election." 2 The mischief which this provision — reproduced verbatim from the 1973 Constitution — seeks to prevent is the possibility of a "stranger or newcomer unacquainted with the conditions and needs of a community and not identified with the latter, from an elective office to serve that community." 3

Petitioner Imelda Romualdez-Marcos filed her Certificate of Candidacy for the position of Representative of the First District of Leyte with the Provincial Election Supervisor on March 8, 1995, providing the following information in item no. 8: 4

RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO BE ELECTED IMMEDIATELY PRECEDING THE ELECTION: __________ Years and seven Months.

On March 23, 1995, private respondent Cirilo Roy Montejo, the incumbent Representative of the First District of Leyte and a candidate for the same position, filed a "Petition for Cancellation and Disqualification"  5 with the Commission on Elections alleging that petitioner did not meet the constitutional requirement for residency. In his petition, private respondent contended that Mrs. Marcos lacked the Constitution's one year residency requirement for candidates for the House of Representatives on the evidence of declarations made by her in Voter Registration Record 94-No. 3349772 6and in her Certificate of Candidacy. He prayed that "an order be issued declaring (petitioner) disqualified and canceling the certificate of candidacy." 7

On March 29, 1995, petitioner filed an Amended/Corrected Certificate of Candidacy, changing the entry "seven" months to "since childhood" in item no. 8 of the amended certificate. 8 On the same day, the Provincial Election Supervisor of Leyte informed petitioner that:

[T]his office cannot receive or accept the aforementioned Certificate of Candidacy on the ground that it is filed out of time, the deadline for the filing of the same having already lapsed on March 20, 1995. The Corrected/Amended Certificate of Candidacy should have been filed on or before the March 20, 1995 deadline. 9

Consequently, petitioner filed the Amended/Corrected Certificate of Candidacy with the COMELEC's Head Office in Intramuros, Manila onMarch 31, 1995. Her Answer to private respondent's petition in SPA No. 95-009 was likewise filed with the head office on the same day. In said Answer, petitioner averred that the entry of the word "seven" in her original Certificate of Candidacy was the result of an "honest misinterpretation" 10 which she sought to rectify by adding the words "since childhood" in her Amended/Corrected Certificate of Candidacy and that "she has always maintained Tacloban City as her domicile or residence. 11 Impugning respondent's motive in filing the petition seeking her disqualification, she noted that:

When respondent (petitioner herein) announced that she was intending to register as a voter in Tacloban City and run for Congress in the First District of Leyte, petitioner immediately opposed her intended registration by writing a letter stating that "she is not a resident of said city but of Barangay Olot, Tolosa, Leyte. After respondent had registered as a voter in Tolosa following completion of her six month actual residence therein, petitioner filed a petition with the COMELEC to transfer the town of Tolosa from the First District to the Second District and pursued such a move up to the Supreme Court, his purpose being to remove respondent as petitioner's opponent in the congressional election in the First District. He also filed a bill, along with other Leyte Congressmen, seeking the creation of another legislative district to remove the town of Tolosa out of the First District, to achieve his purpose. However, such bill did not pass the Senate. Having failed on such moves, petitioner now filed the instant petition for the same objective, as it is obvious that he is afraid to submit along with respondent for the judgment and

verdict of the electorate of the First District of Leyte in an honest, orderly, peaceful, free and clean elections on May 8, 1995. 12

On April 24, 1995, the Second Division of the Commission on Elections (COMELEC), by a vote of 2 to 1, 13 came up with a Resolution 1) finding private respondent's Petition for Disqualification in SPA 95-009 meritorious; 2) striking off petitioner's Corrected/Amended Certificate of Candidacy of March 31, 1995; and 3) canceling her original Certificate of Candidacy. 14 Dealing with two primary issues, namely, the validity of amending the original Certificate of Candidacy after the lapse of the deadline for filing certificates of candidacy, and petitioner's compliance with the one year residency requirement, the Second Division held:

Respondent raised the affirmative defense in her Answer that the printed word "Seven" (months) was a result of an "honest misinterpretation or honest mistake" on her part and, therefore, an amendment should subsequently be allowed. She averred that she thought that what was asked was her "actual and physical" presence in Tolosa and not residence of origin or domicile in the First Legislative District, to which she could have responded "since childhood." In an accompanying affidavit, she stated that her domicile is Tacloban City, a component of the First District, to which she always intended to return whenever absent and which she has never abandoned. Furthermore, in her memorandum, she tried to discredit petitioner's theory of disqualification by alleging that she has been a resident of the First Legislative District of Leyte since childhood, although she only became a resident of the Municipality of Tolosa for seven months. She asserts that she has always been a resident of Tacloban City, a component of the First District, before coming to the Municipality of Tolosa.

Along this point, it is interesting to note that prior to her registration in Tolosa, respondent announced that she would be registering in Tacloban City so that she can be a candidate for the District. However, this intention was rebuffed when petitioner wrote the Election Officer of Tacloban not to allow respondent since she is a resident of Tolosa and not Tacloban. She never disputed this claim and instead implicitly acceded to it by registering in Tolosa.

This incident belies respondent's claim of "honest misinterpretation or honest mistake." Besides, the Certificate of Candidacy only asks for RESIDENCE. Since on the basis of her Answer, she was quite aware of "residence of origin" which she interprets to be Tacloban City, it is curious why she did not cite Tacloban City in her Certificate of Candidacy. Her explanation that she thought what was asked was her actual and physical presence in Tolosa is not easy to believe because there is none in the question that insinuates about Tolosa. In fact, item no. 8 in the Certificate of Candidacy speaks clearly of "Residency in the CONSTITUENCY where I seek to be elected immediately preceding the election." Thus, the explanation of respondent fails to be persuasive.

From the foregoing, respondent's defense of an honest mistake or misinterpretation, therefore, is devoid of merit.

To further buttress respondent's contention that an amendment may be made, she cited the case ofAlialy v. COMELEC (2 SCRA 957). The reliance of respondent on the case of Alialy is misplaced. The case only applies to the "inconsequential deviations which cannot affect the result of the election, or deviations from provisions intended primarily to secure timely and orderly conduct of elections." The Supreme Court in that case considered the amendment only as a matter of form. But in the instant case, the amendment cannot be considered as a matter of form or an inconsequential deviation. The change in the number of years of residence in the place where respondent seeks to be elected is a substantial matter which determines her qualification as a candidacy, specially those intended to suppress, accurate material representation in the original certificate which adversely affects the filer. To admit the amended certificate is to condone the evils brought by the shifting minds of manipulating candidate, of the detriment of the integrity of the election.

Moreover, to allow respondent to change the seven (7) month period of her residency in order to prolong it by claiming it was "since childhood" is to allow an untruthfulness to be committed before this Commission. The arithmetical accuracy of the 7 months residency the respondent indicated in her certificate of candidacy can be gleaned from her entry in her Voter's Registration Record accomplished on January 28, 1995 which reflects that she is a resident of Brgy. Olot, Tolosa, Leyte for 6 months at the time of the said registration (Annex A, Petition). Said accuracy is further buttressed by her letter to the election officer of San Juan, Metro Manila, dated August

24, 1994, requesting for the cancellation of her registration in the Permanent List of Voters thereat so that she can be re-registered or transferred to Brgy. Olot, Tolosa, Leyte. The dates of these three (3) different documents show the respondent's consistent conviction that she has transferred her residence to Olot, Tolosa, Leyte from Metro Manila only for such limited period of time, starting in the last week of August 1994 which on March 8, 1995 will only sum up to 7 months. The Commission, therefore, cannot be persuaded to believe in the respondent's contention that it was an error.

xxx xxx xxx

Based on these reasons the Amended/Corrected Certificate of Candidacy cannot be admitted by this Commission.

xxx xxx xxx

Anent the second issue, and based on the foregoing discussion, it is clear that respondent has not complied with the one year residency requirement of the Constitution.

In election cases, the term "residence" has always been considered as synonymous with "domicile" which imports not only the intention to reside in a fixed place but also personal presence in-that place, coupled with conduct indicative of such intention. Domicile denotes a fixed permanent residence to which when absent for business or pleasure, or for like reasons, one intends to return. (Perfecto Faypon vs. Eliseo Quirino, 96 Phil 294; Romualdez vs. RTC-Tacloban, 226 SCRA 408). In respondent's case, when she returned to the Philippines in 1991, the residence she chose was not Tacloban but San Juan, Metro Manila. Thus, her animus revertendi is pointed to Metro Manila and not Tacloban.

This Division is aware that her claim that she has been a resident of the First District since childhood is nothing more than to give her a color of qualification where she is otherwise constitutionally disqualified. It cannot hold ground in the face of the facts admitted by the respondent in her affidavit. Except for the time that she studied and worked for some years after graduation in Tacloban City, she continuously lived in Manila. In 1959, after her husband was elected Senator, she lived and resided in San Juan, Metro Manila where she was a registered voter. In 1965, she lived in San Miguel, Manila where she was again a registered voter. In 1978, she served as member of the Batasang Pambansa as the representative of the City of Manila and later on served as the Governor of Metro Manila. She could not have served these positions if she had not been a resident of the City of Manila. Furthermore, when she filed her certificate of candidacy for the office of the President in 1992, she claimed to be a resident of San Juan, Metro Manila. As a matter of fact on August 24, 1994, respondent wrote a letter with the election officer of San Juan, Metro Manila requesting for the cancellation of her registration in the permanent list of voters that she may be re-registered or transferred to Barangay Olot, Tolosa, Leyte. These facts manifest that she could not have been a resident of Tacloban City since childhood up to the time she filed her certificate of candidacy because she became a resident of many places, including Metro Manila. This debunks her claim that prior to her residence in Tolosa, Leyte, she was a resident of the First Legislative District of Leyte since childhood.

In this case, respondent's conduct reveals her lack of intention to make Tacloban her domicile. She registered as a voter in different places and on several occasions declared that she was a resident of Manila. Although she spent her school days in Tacloban, she is considered to have abandoned such place when she chose to stay and reside in other different places. In the case of Romualdez vs. RTC(226 SCRA 408) the Court explained how one acquires a new domicile by choice. There must concur: (1) residence or bodily presence in the new locality; (2) intention to remain there; and (3) intention to abandon the old domicile. In other words there must basically be animus manendi with animus non revertendi. When respondent chose to stay in Ilocos and later on in Manila, coupled with her intention to stay there by registering as a voter there and expressly declaring that she is a resident of that place, she is deemed to have abandoned Tacloban City, where she spent her childhood and school days, as her place of domicile.

Pure intention to reside in that place is not sufficient, there must likewise be conduct indicative of such intention. Respondent's statements to the effect that she has always intended to return to Tacloban, without the accompanying conduct to prove that intention, is not conclusive of her choice of residence. Respondent has not presented any evidence to show that her conduct, one

year prior the election, showed intention to reside in Tacloban. Worse, what was evident was that prior to her residence in Tolosa, she had been a resident of Manila.

It is evident from these circumstances that she was not a resident of the First District of Leyte "since childhood."

To further support the assertion that she could have not been a resident of the First District of Leyte for more than one year, petitioner correctly pointed out that on January 28, 1995 respondent registered as a voter at precinct No. 18-A of Olot, Tolosa, Leyte. In doing so, she placed in her Voter Registration Record that she resided in the municipality of Tolosa for a period of six months. This may be inconsequential as argued by the respondent since it refers only to her residence in Tolosa, Leyte. But her failure to prove that she was a resident of the First District of Leyte prior to her residence in Tolosa leaves nothing but a convincing proof that she had been a resident of the district for six months only. 15

In a Resolution promulgated a day before the May 8, 1995 elections, the COMELEC en banc denied petitioner's Motion for Reconsideration 16 of the April 24, 1995 Resolution declaring her not qualified to run for the position of Member of the House of Representatives for the First Legislative District of Leyte. 17 The Resolution tersely stated:

After deliberating on the Motion for Reconsideration, the Commission RESOLVED to DENY it, no new substantial matters having been raised therein to warrant re-examination of the resolution granting the petition for disqualification. 18

On May 11, 1995, the COMELEC issued a Resolution allowing petitioner's proclamation should the results of the canvass show that she obtained the highest number of votes in the congressional elections in the First District of Leyte. On the same day, however, the COMELEC reversed itself and issued a second Resolution directing that the proclamation of petitioner be suspended in the event that she obtains the highest number of votes. 19

In a Supplemental Petition dated 25 May 1995, petitioner averred that she was the overwhelming winner of the elections for the congressional seat in the First District of Leyte held May 8, 1995 based on the canvass completed by the Provincial Board of Canvassers on May 14, 1995. Petitioner alleged that the canvass showed that she obtained a total of 70,471 votes compared to the 36,833 votes received by Respondent Montejo. A copy of said Certificate of Canvass was annexed to the Supplemental Petition.

On account of the Resolutions disqualifying petitioner from running for the congressional seat of the First District of Leyte and the public respondent's Resolution suspending her proclamation, petitioner comes to this court for relief.

Petitioner raises several issues in her Original and Supplemental Petitions. The principal issues may be classified into two general areas:

I. The issue of Petitioner's qualifications

Whether or not petitioner was a resident, for election purposes, of the First District of Leyte for a period of one year at the time of the May 9, 1995 elections.

II. The Jurisdictional Issue

a) Prior to the elections

Whether or not the COMELEC properly exercised its jurisdiction in disqualifying petitioner outside the period mandated by the Omnibus Election Code for disqualification cases under Article 78 of the said Code.

b) After the Elections

Whether or not the House of Representatives Electoral Tribunal assumed exclusive jurisdiction over the question of petitioner's qualifications after the May 8, 1995 elections.

I. Petitioner's qualification

A perusal of the Resolution of the COMELEC's Second Division reveals a startling confusion in the application of settled concepts of "Domicile" and "Residence" in election law. While the COMELEC seems to be in agreement with the general proposition that for the purposes of election law, residence is synonymous with domicile, the Resolution reveals a tendency to substitute or mistake the concept of domicile for actual residence, a conception not intended for the purpose of determining a candidate's qualifications for election to the House of Representatives as required by the 1987 Constitution. As it were, residence, for the purpose of meeting the qualification for an elective position, has a settled meaning in our jurisdiction.

Article 50 of the Civil Code decrees that "[f]or the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is their place of habitual residence." In Ong vs. Republic 20 this court took the concept of domicile to mean an individual's "permanent home", "a place to which, whenever absent for business or for pleasure, one intends to return, and depends on facts and circumstances in the sense that they disclose intent." 21 Based on the foregoing, domicile includes the twin elements of "the fact of residing or physical presence in a fixed place" and animus manendi, or the intention of returning there permanently.

Residence, in its ordinary conception, implies the factual relationship of an individual to a certain place. It is the physical presence of a person in a given area, community or country. The essential distinction between residence and domicile in law is that residence involves the intent to leave when the purpose for which the resident has taken up his abode ends. One may seek a place for purposes such as pleasure, business, or health. If a person's intent be to remain, it becomes his domicile; if his intent is to leave as soon as his purpose is established it is residence.22 It is thus, quite perfectly normal for an individual to have different residences in various places. However, a person can only have a single domicile, unless, for various reasons, he successfully abandons his domicile in favor of another domicile of choice. In Uytengsu vs. Republic, 23 we laid this distinction quite clearly:

There is a difference between domicile and residence. "Residence" is used to indicate a place of abode, whether permanent or temporary; "domicile" denotes a fixed permanent residence to which, when absent, one has the intention of returning. A man may have a residence in one place and a domicile in another. Residence is not domicile, but domicile is residence coupled with the intention to remain for an unlimited time. A man can have but one domicile for the same purpose at any time, but he may have numerous places of residence. His place of residence is generally his place of domicile, but it is not by any means necessarily so since no length of residence without intention of remaining will constitute domicile.

For political purposes the concepts of residence and domicile are dictated by the peculiar criteria of political laws. As these concepts have evolved in our election law, what has clearly and unequivocally emerged is the fact that residence for election purposes is used synonymously with domicile.

In Nuval vs. Guray, 24 the Court held that "the term residence. . . is synonymous with domicile which imports not only intention to reside in a fixed place, but also personal presence in that place, coupled with conduct indicative of such intention." 25 Larena vs. Teves 26 reiterated the same doctrine in a case involving the qualifications of the respondent therein to the post of Municipal President of Dumaguete, Negros Oriental. Faypon vs. Quirino, 27 held that the absence from residence to pursue studies or practice a profession or registration as a voter other than in the place where one is elected does not constitute loss of residence. 28 So settled is the concept (of domicile) in our election law that in these and other election law cases, this Court has stated that the mere absence of an individual from his permanent residence without the intention to abandon it does not result in a loss or change of domicile.

The deliberations of the 1987 Constitution on the residence qualification for certain elective positions have placed beyond doubt the principle that when the Constitution speaks of "residence" in election law, it actually means only "domicile" to wit:

Mr. Nolledo: With respect to Section 5, I remember that in the 1971 Constitutional Convention, there was an attempt to require residence in the place not less than one year immediately preceding the day of the elections. So my question is: What is the Committee's concept of residence of a candidate for the legislature? Is it actual residence or is it the concept of domicile or constructive residence?

Mr. Davide: Madame President, insofar as the regular members of the National Assembly are concerned, the proposed section merely provides, among others, "and a resident thereof", that is, in the district for a period of not less than one year preceding the day of the election. This was in effect lifted from the 1973 Constitution, the interpretation given to it was domicile. 29

xxx xxx xxx

Mrs. Rosario Braid: The next question is on Section 7, page 2. I think Commissioner Nolledo has raised the same point that "resident" has been interpreted at times as a matter of intention rather than actual residence.

Mr. De los Reyes: Domicile.

Ms. Rosario Braid: Yes, So, would the gentleman consider at the proper time to go back to actual residence rather than mere intention to reside?

Mr. De los Reyes: But we might encounter some difficulty especially considering that a provision in the Constitution in the Article on Suffrage says that Filipinos living abroad may vote as enacted by law. So, we have to stick to the original concept that it should be by domicile and not physical residence.30

In Co vs. Electoral Tribunal of the House of Representatives, 31 this Court concluded that the framers of the 1987 Constitution obviously adhered to the definition given to the term residence in election law, regarding it as having the same meaning as domicile. 32

In the light of the principles just discussed, has petitioner Imelda Romualdez Marcos satisfied the residency requirement mandated by Article VI, Sec. 6 of the 1987 Constitution? Of what significance is the questioned entry in petitioner's Certificate of Candidacy stating her residence in the First Legislative District of Leyte as seven (7) months?

It is the fact of residence, not a statement in a certificate of candidacy which ought to be decisive in determining whether or not and individual has satisfied the constitution's residency qualification requirement. The said statement becomes material only when there is or appears to be a deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible. It would be plainly ridiculous for a candidate to deliberately and knowingly make a statement in a certificate of candidacy which would lead to his or her disqualification.

It stands to reason therefore, that petitioner merely committed an honest mistake in jotting the word "seven" in the space provided for the residency qualification requirement. The circumstances leading to her filing the questioned entry obviously resulted in the subsequent confusion which prompted petitioner to write down the period of her actual stay in Tolosa, Leyte instead of her period of residence in the First district, which was "since childhood" in the space provided. These circumstances and events are amply detailed in the COMELEC's Second Division's questioned resolution, albeit with a different interpretation. For instance, when herein petitioner announced that she would be registering in Tacloban City to make her eligible to run in the First District, private respondent Montejo opposed the same, claiming that petitioner was a resident of Tolosa, not Tacloban City. Petitioner then registered in her place of actual residence in the First District, which is Tolosa, Leyte, a fact which she subsequently noted down in her Certificate of Candidacy. A close look at said certificate would reveal the possible source of the confusion: the entry for residence (Item No. 7) is followed immediately by the entry for residence in the constituency where a candidate seeks election thus:

7. RESIDENCE (complete Address): Brgy. Olot, Tolosa, Leyte

POST OFFICE ADDRESS FOR ELECTION PURPOSES: Brgy. Olot, Tolosa, Leyte

8. RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TOBE ELECTED IMMEDIATELY PRECEDING THE ELECTION:_________ Years and Seven Months.

Having been forced by private respondent to register in her place of actual residence in Leyte instead of petitioner's claimed domicile, it appears that petitioner had jotted down her period of stay in her legal residence or domicile. The juxtaposition of entries in Item 7 and Item 8 — the first requiring actual residence and the second requiring domicile — coupled with the circumstances surrounding petitioner's registration as a voter in Tolosa obviously led to her writing down an unintended entry for which she could be disqualified. This honest mistake should not, however, be allowed to negate the fact of residence in the First District if such fact were established by means more convincing than a mere entry on a piece of paper.

We now proceed to the matter of petitioner's domicile.

In support of its asseveration that petitioner's domicile could not possibly be in the First District of Leyte, the Second Division of the COMELEC, in its assailed Resolution of April 24,1995 maintains that "except for the time when (petitioner) studied and worked for some years after graduation in Tacloban City, she continuously lived in Manila." The Resolution additionally cites certain facts as indicative of the fact that petitioner's domicile ought to be any place where she lived in the last few decades except Tacloban, Leyte. First, according to the Resolution, petitioner, in 1959, resided in San Juan, Metro Manila where she was also registered voter. Then, in 1965, following the election of her husband to the Philippine presidency, she lived in San Miguel, Manila where she as a voter. In 1978 and thereafter, she served as a member of the Batasang Pambansa and Governor of Metro Manila. "She could not, have served these positions if she had not been a resident of Metro Manila," the COMELEC stressed. Here is where the confusion lies.

We have stated, many times in the past, that an individual does not lose his domicile even if he has lived and maintained residences in different places. Residence, it bears repeating, implies a factual relationship to a given place for various purposes. The absence from legal residence or domicile to pursue a profession, to study or to do other things of a temporary or semi-permanent nature does not constitute loss of residence. Thus, the assertion by the COMELEC that "she could not have been a resident of Tacloban City since childhood up to the time she filed her certificate of candidacy because she became a resident of many places" flies in the face of settled jurisprudence in which this Court carefully made distinctions between (actual) residence and domicile for election law purposes. In Larena vs. Teves, 33 supra, we stressed:

[T]his court is of the opinion and so holds that a person who has his own house wherein he lives with his family in a municipality without having ever had the intention of abandoning it, and without having lived either alone or with his family in another municipality, has his residence in the former municipality, notwithstanding his having registered as an elector in the other municipality in question and having been a candidate for various insular and provincial positions, stating every time that he is a resident of the latter municipality.

More significantly, in Faypon vs. Quirino, 34 We explained that:

A citizen may leave the place of his birth to look for "greener pastures," as the saying goes, to improve his lot, and that, of course includes study in other places, practice of his avocation, or engaging in business. When an election is to be held, the citizen who left his birthplace to improve his lot may desire to return to his native town to cast his ballot but for professional or business reasons, or for any other reason, he may not absent himself from his professional or business activities; so there he registers himself as voter as he has the qualifications to be one and is not willing to give up or lose the opportunity to choose the officials who are to run the government especially in national elections. Despite such registration, the animus revertendi to his home, to his domicile or residence of origin has not forsaken him. This may be the explanation why the registration of a voter in a place other than his residence of origin has not been deemed sufficient to constitute abandonment or loss of such residence. It finds justification in the natural desire and longing of every person to return to his place of birth. This strong feeling of attachment to the place of one's birth must be overcome by positive proof of abandonment for another.

From the foregoing, it can be concluded that in its above-cited statements supporting its proposition that petitioner was ineligible to run for the position of Representative of the First District of Leyte, the COMELEC was obviously referring to petitioner's various places of (actual) residence, not her domicile. In doing so, it not only ignored settled jurisprudence on residence in election law and the deliberations of the constitutional commission but also the provisions of the Omnibus Election Code (B.P. 881). 35

What is undeniable, however, are the following set of facts which establish the fact of petitioner's domicile, which we lift verbatim from the COMELEC's Second Division's assailed Resolution: 36

In or about 1938 when respondent was a little over 8 years old, she established her domicile in Tacloban, Leyte (Tacloban City). She studied in the Holy Infant Academy in Tacloban from 1938 to 1949 when she graduated from high school. She pursued her college studies in St. Paul's College, now Divine Word University in Tacloban, where she earned her degree in Education. Thereafter, she taught in the Leyte Chinese School, still in Tacloban City. In 1952 she went to Manila to work with her cousin, the late speaker Daniel Z. Romualdez in his office in the House of Representatives. In 1954, she married ex-President Ferdinand E. Marcos when he was still a congressman of Ilocos Norte and registered there as a voter. When her husband was elected Senator of the Republic in 1959, she and her husband lived together in San Juan, Rizal where

she registered as a voter. In 1965, when her husband was elected President of the Republic of the Philippines, she lived with him in Malacanang Palace and registered as a voter in San Miguel, Manila.

[I]n February 1986 (she claimed that) she and her family were abducted and kidnapped to Honolulu, Hawaii. In November 1991, she came home to Manila. In 1992, respondent ran for election as President of the Philippines and filed her Certificate of Candidacy wherein she indicated that she is a resident and registered voter of San Juan, Metro Manila.

Applying the principles discussed to the facts found by COMELEC, what is inescapable is that petitioner held various residences for different purposes during the last four decades. None of these purposes unequivocally point to an intention to abandon her domicile of origin in Tacloban, Leyte. Moreover, while petitioner was born in Manila, as a minor she naturally followed the domicile of her parents. She grew up in Tacloban, reached her adulthood there and eventually established residence in different parts of the country for various reasons. Even during her husband's presidency, at the height of the Marcos Regime's powers, petitioner kept her close ties to her domicile of origin by establishing residences in Tacloban, celebrating her birthdays and other important personal milestones in her home province, instituting well-publicized projects for the benefit of her province and hometown, and establishing a political power base where her siblings and close relatives held positions of power either through the ballot or by appointment, always with either her influence or consent. These well-publicized ties to her domicile of origin are part of the history and lore of the quarter century of Marcos power in our country. Either they were entirely ignored in the COMELEC'S Resolutions, or the majority of the COMELEC did not know what the rest of the country always knew: the fact of petitioner's domicile in Tacloban, Leyte.

Private respondent in his Comment, contends that Tacloban was not petitioner's domicile of origin because she did not live there until she was eight years old. He avers that after leaving the place in 1952, she "abandoned her residency (sic) therein for many years and . . . (could not) re-establish her domicile in said place by merely expressing her intention to live there again." We do not agree.

First, minor follows the domicile of his parents. As domicile, once acquired is retained until a new one is gained, it follows that in spite of the fact of petitioner's being born in Manila, Tacloban, Leyte was her domicile of origin by operation of law. This domicile was not established only when her father brought his family back to Leyte contrary to private respondent's averments.

Second, domicile of origin is not easily lost. To successfully effect a change of domicile, one must demonstrate: 37

1. An actual removal or an actual change of domicile;

2. A bona fide intention of abandoning the former place of residence and establishing a new one; and

3. Acts which correspond with the purpose.

In the absence of clear and positive proof based on these criteria, the residence of origin should be deemed to continue. Only with evidence showing concurrence of all three requirements can the presumption of continuity or residence be rebutted, for a change of residence requires an actual and deliberate abandonment, and one cannot have two legal residences at the same time. 38 In the case at bench, the evidence adduced by private respondent plainly lacks the degree of persuasiveness required to convince this court that an abandonment of domicile of origin in favor of a domicile of choice indeed occurred. To effect an abandonment requires the voluntary act of relinquishing petitioner's former domicile with an intent to supplant the former domicile with one of her own choosing (domicilium voluntarium).

In this connection, it cannot be correctly argued that petitioner lost her domicile of origin by operation of law as a result of her marriage to the late President Ferdinand E. Marcos in 1952. For there is a clearly established distinction between the Civil Code concepts of "domicile" and "residence." 39 The presumption that the wife automatically gains the husband's domicile by operation of law upon marriage cannot be inferred from the use of the term "residence" in Article 110 of the Civil Code because the Civil Code is one area where the two concepts are well delineated. Dr. Arturo Tolentino, writing on this specific area explains:

In the Civil Code, there is an obvious difference between domicile and residence. Both terms imply relations between a person and a place; but in residence, the relation is one of fact while in domicile it is legal or juridical, independent of the necessity of physical presence. 40

Article 110 of the Civil Code provides:

Art. 110. — The husband shall fix the residence of the family. But the court may exempt the wife from living with the husband if he should live abroad unless in the service of the Republic.

A survey of jurisprudence relating to Article 110 or to the concepts of domicile or residence as they affect the female spouse upon marriage yields nothing which would suggest that the female spouse automatically loses her domicile of origin in favor of the husband's choice of residence upon marriage.

Article 110 is a virtual restatement of Article 58 of the Spanish Civil Code of 1889 which states:

La mujer esta obligada a seguir a su marido donde quiera que fije su residencia. Los Tribunales, sin embargo, podran con justa causa eximirla de esta obligacion cuando el marido transende su residencia a ultramar o' a pais extranjero.

Note the use of the phrase "donde quiera su fije de residencia" in the aforequoted article, which means wherever (the husband) wishes to establish residence. This part of the article clearly contemplates only actual residence because it refers to a positive act of fixing a family home or residence. Moreover, this interpretation is further strengthened by the phrase "cuando el marido translade su residencia" in the same provision which means, "when the husband shall transfer his residence," referring to another positive act of relocating the family to another home or place of actual residence. The article obviously cannot be understood to refer to domicile which is a fixed,fairly-permanent concept when it plainly connotes the possibility of transferring from one place to another not only once, but as often as the husband may deem fit to move his family, a circumstance more consistent with the concept of actual residence.

The right of the husband to fix the actual residence is in harmony with the intention of the law to strengthen and unify the family, recognizing the fact that the husband and the wife bring into the marriage different domiciles (of origin). This difference could, for the sake of family unity, be reconciled only by allowing the husband to fix a single place of actual residence.

Very significantly, Article 110 of the Civil Code is found under Title V under the heading: RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE. Immediately preceding Article 110 is Article 109 which obliges the husband and wife to live together, thus:

Art. 109. — The husband and wife are obligated to live together, observe mutual respect and fidelity and render mutual help and support.

The duty to live together can only be fulfilled if the husband and wife are physically together. This takes into account the situations where the couple has many residences (as in the case of the petitioner). If the husband has to stay in or transfer to any one of their residences, the wife should necessarily be with him in order that they may "live together." Hence, it is illogical to conclude that Art. 110 refers to "domicile" and not to "residence." Otherwise, we shall be faced with a situation where the wife is left in the domicile while the husband, for professional or other reasons, stays in one of their (various) residences. As Dr. Tolentino further explains:

Residence and Domicile — Whether the word "residence" as used with reference to particular matters is synonymous with "domicile" is a question of some difficulty, and the ultimate decision must be made from a consideration of the purpose and intent with which the word is used. Sometimes they are used synonymously, at other times they are distinguished from one another.

xxx xxx xxx

Residence in the civil law is a material fact, referring to the physical presence of a person in a place. A person can have two or more residences, such as a country residence and a city residence. Residence is acquired by living in place; on the other hand, domicile can exist without actually living in the place. The important thing for domicile is that, once residence has been established in one place, there be an intention to stay there permanently, even if residence is also established in some otherplace. 41

In fact, even the matter of a common residence between the husband and the wife during the marriage is not an iron-clad principle; In cases applying the Civil Code on the question of a common matrimonial residence, our jurisprudence has recognized certain situations 42 where the spouses could not be compelled to live with each other such that the wife is either allowed to maintain a residence different from that of her husband or, for obviously practical reasons, revert to her original domicile (apart from being allowed to opt for a new one). In De la Vina vs. Villareal 43 this Court held that "[a] married woman may acquire a residence or domicile separate from that of her husband during the existence of the marriage where the husband has given cause for divorce." 44 Note that the Court allowed the wife either to obtain new residence or to choose a new domicile in such an event. In instances where the wife actually opts, .under the Civil Code, to live separately from her husband either by taking new residence or reverting to her domicile of origin, the Court has held that the wife could not be compelled to live with her husband on pain of contempt. In Arroyo vs. Vasques de Arroyo 45 the Court held that:

Upon examination of the authorities, we are convinced that it is not within the province of the courts of this country to attempt to compel one of the spouses to cohabit with, and render conjugal rights to, the other. Of course where the property rights of one of the pair are invaded, an action for restitution of such rights can be maintained. But we are disinclined to sanction the doctrine that an order, enforcible (sic) by process of contempt, may be entered to compel the restitution of the purely personal right of consortium. At best such an order can be effective for no other purpose than to compel the spouses to live under the same roof; and he experience of those countries where the courts of justice have assumed to compel the cohabitation of married people shows that the policy of the practice is extremely questionable. Thus in England, formerly the Ecclesiastical Court entertained suits for the restitution of conjugal rights at the instance of either husband or wife; and if the facts were found to warrant it, that court would make a mandatory decree, enforceable by process of contempt in case of disobedience, requiring the delinquent party to live with the other and render conjugal rights. Yet this practice was sometimes criticized even by the judges who felt bound to enforce such orders, and in Weldon v. Weldon (9 P.D. 52), decided in 1883, Sir James Hannen, President in the Probate, Divorce and Admiralty Division of the High Court of Justice, expressed his regret that the English law on the subject was not the same as that which prevailed in Scotland, where a decree of adherence, equivalent to the decree for the restitution of conjugal rights in England, could be obtained by the injured spouse, but could not be enforced by imprisonment. Accordingly, in obedience to the growing sentiment against the practice, the Matrimonial Causes Act (1884) abolished the remedy of imprisonment; though a decree for the restitution of conjugal rights can still be procured, and in case of disobedience may serve in appropriate cases as the basis of an order for the periodical payment of a stipend in the character of alimony.

In the voluminous jurisprudence of the United States, only one court, so far as we can discover, has ever attempted to make a preemptory order requiring one of the spouses to live with the other; and that was in a case where a wife was ordered to follow and live with her husband, who had changed his domicile to the City of New Orleans. The decision referred to (Bahn v. Darby, 36 La. Ann., 70) was based on a provision of the Civil Code of Louisiana similar to article 56 of the Spanish Civil Code. It was decided many years ago, and the doctrine evidently has not been fruitful even in the State of Louisiana. In other states of the American Union the idea of enforcing cohabitation by process of contempt is rejected. (21 Cyc., 1148).

In a decision of January 2, 1909, the Supreme Court of Spain appears to have affirmed an order of the Audiencia Territorial de Valladolid requiring a wife to return to the marital domicile, and in the alternative, upon her failure to do so, to make a particular disposition of certain money and effects then in her possession and to deliver to her husband, as administrator of the ganancial property, all income, rents, and interest which might accrue to her from the property which she had brought to the marriage. (113 Jur. Civ., pp. 1, 11) But it does not appear that this order for the return of the wife to the marital domicile was sanctioned by any other penalty than the consequences that would be visited upon her in respect to the use and control of her property; and it does not appear that her disobedience to that order would necessarily have been followed by imprisonment for contempt.

Parenthetically when Petitioner was married to then Congressman Marcos, in 1954, petitioner was obliged — by virtue of Article 110 of the Civil Code — to follow her husband's actual place of residence fixed by him. The problem here is that at that time, Mr. Marcos had several places of residence, among which were San Juan, Rizal and Batac, Ilocos Norte. There is no showing which of these places Mr. Marcos did fix as his family's residence. But assuming that Mr. Marcos had fixed any of these places as the conjugal residence, what petitioner gained upon marriage was actual residence. She did not lose her domicile of origin.

On the other hand, the common law concept of "matrimonial domicile" appears to have been incorporated, as a result of our jurisprudential experiences after the drafting of the Civil Code of 1950, into the New Family Code. To underscore the difference between the intentions of the Civil Code and the Family Code drafters, the term residence has been supplanted by the term domicile in an entirely new provision (Art. 69) distinctly different in meaning and spirit from that found in Article 110. The provision recognizes revolutionary changes in the concept of women's rights in the intervening years by making the choice of domicile a product of mutual agreement between the spouses. 46

Without as much belaboring the point, the term residence may mean one thing in civil law (or under the Civil Code) and quite another thing in political law. What stands clear is that insofar as the Civil Code is concerned-affecting the rights and obligations of husband and wife — the term residence should only be interpreted to mean "actual residence." The inescapable conclusion derived from this unambiguous civil law delineation therefore, is that when petitioner married the former President in 1954, she kept her domicile of origin and merely gained a new home, not a domicilium necessarium.

Even assuming for the sake of argument that petitioner gained a new "domicile" after her marriage and only acquired a right to choose a new one after her husband died, petitioner's acts following her return to the country clearly indicate that she not only impliedly but expressly chose her domicile of origin (assuming this was lost by operation of law) as her domicile. This "choice" was unequivocally expressed in her letters to the Chairman of the PCGG when petitioner sought the PCGG's permission to "rehabilitate (our) ancestral house in Tacloban and Farm in Olot, Leyte. . . to make them livable for the Marcos family to have a home in our homeland." 47 Furthermore, petitioner obtained her residence certificate in 1992 in Tacloban, Leyte, while living in her brother's house, an act which supports the domiciliary intention clearly manifested in her letters to the PCGG Chairman. She could not have gone straight to her home in San Juan, as it was in a state of disrepair, having been previously looted by vandals. Her "homes" and "residences" following her arrival in various parts of Metro Manila merely qualified as temporary or "actual residences," not domicile. Moreover, and proceeding from our discussion pointing out specific situations where the female spouse either reverts to her domicile of origin or chooses a new one during the subsistence of the marriage, it would be highly illogical for us to assume that she cannot regain her original domicile upon the death of her husband absent a positive act of selecting a new one where situations exist within the subsistence of the marriage itself where the wife gains a domicile different from her husband.

In the light of all the principles relating to residence and domicile enunciated by this court up to this point, we are persuaded that the facts established by the parties weigh heavily in favor of a conclusion supporting petitioner's claim of legal residence or domicile in the First District of Leyte.

II. The jurisdictional issue

Petitioner alleges that the jurisdiction of the COMELEC had already lapsed considering that the assailed resolutions were rendered on April 24, 1995, fourteen (14) days before the election in violation of Section 78 of the Omnibus Election Code. 48 Moreover, petitioner contends that it is the House of Representatives Electoral Tribunal and not the COMELEC which has jurisdiction over the election of members of the House of Representatives in accordance with Article VI Sec. 17 of the Constitution. This is untenable.

It is a settled doctrine that a statute requiring rendition of judgment within a specified time is generally construed to be merely directory, 49 "so that non-compliance with them does not invalidate the judgment on the theory that if the statute had intended such result it would have clearly indicated it." 50 The difference between a mandatory and a directory provision is often made on grounds of necessity. Adopting the same view held by several American authorities, this court in Marcelino vs. Cruz held that: 51

The difference between a mandatory and directory provision is often determined on grounds of expediency, the reason being that less injury results to the general public by disregarding than enforcing the letter of the law.

In Trapp v. Mc Cormick, a case calling for the interpretation of a statute containing a limitation of thirty (30) days within which a decree may be entered without the consent of counsel, it was held that "the statutory provisions which may be thus departed from with impunity, without affecting the validity of statutory proceedings, are usually those which relate to the mode or time of doing that which is essential to effect the aim and purpose of the Legislature or some incident of the essential act." Thus, in said case, the statute under examination was construed merely to be directory.

The mischief in petitioner's contending that the COMELEC should have abstained from rendering a decision after the period stated in the Omnibus Election Code because it lacked jurisdiction, lies in the fact that our courts and other quasi-judicial bodies would then refuse to render judgments merely on the ground of having failed to reach a decision within a given or prescribed period.

In any event, with the enactment of Sections 6 and 7 of R.A. 6646 in relation to Section 78 of B.P. 881, 52 it is evident that the respondent Commission does not lose jurisdiction to hear and decide a pending disqualification case under Section 78 of B.P. 881 even after the elections.

As to the House of Representatives Electoral Tribunal's supposed assumption of jurisdiction over the issue of petitioner's qualifications after the May 8, 1995 elections, suffice it to say that HRET's jurisdiction as the sole judge of all contests relating to the elections, returns and qualifications of members of Congress begins only after a candidate has become a member of the House of Representatives. 53 Petitioner not being a member of the House of Representatives, it is obvious that the HRET at this point has no jurisdiction over the question.

It would be an abdication of many of the ideals enshrined in the 1987 Constitution for us to either to ignore or deliberately make distinctions in law solely on the basis of the personality of a petitioner in a case. Obviously a distinction was made on such a ground here. Surely, many established principles of law, even of election laws were flouted for the sake perpetuating power during the pre-EDSA regime. We renege on these sacred ideals, including the meaning and spirit of EDSA ourselves bending established principles of principles of law to deny an individual what he or she justly deserves in law. Moreover, in doing so, we condemn ourselves to repeat the mistakes of the past.

WHEREFORE, having determined that petitioner possesses the necessary residence qualifications to run for a seat in the House of Representatives in the First District of Leyte, the COMELEC's questioned Resolutions dated April 24, May 7, May 11, and May 25, 1995 are hereby SET ASIDE. Respondent COMELEC is hereby directed to order the Provincial Board of Canvassers to proclaim petitioner as the duly elected Representative of the First District of Leyte.

SO ORDERED.

Feliciano, J., is on leave.

G.R. No. L-22041             May 19, 1966

MELECIO CLARINIO UJANO, petitioner and appellant, vs.REPUBLIC OF THE PHILIPPINES, oppositor and appellee.

Tagayuna, Arce and Tabaino for petitioner and appellant.Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor F. C. Zaballero and Solicitor Camilo D. Quiason for oppositor and appellee.

BAUTISTA ANGELO, J.:

Petitioner seeks to reacquire his Philippine citizenship in a petition filed before the Court of First Instance of Ilocos Sur.

Petitioner was born 66 years ago of Filipino parents in Magsingal Ilocos Sur. He is married to Maxima O. Ujano with whom he has one son, Prospero, who is now of legal age. He left the Philippines for the United States of America in 1927 where after a residence of more than 20 years he acquired American citizenship by naturalization. He returned to the Philippines on November 10, 1960 to which he was admitted merely for a temporary stay. He owns an agricultural land and a residential house situated in Magsingal, Ilocos Sur worth not less than P5,000.00. He receives a monthly pension of $115.00 from the Social Security Administration of the United States of America. He has no record of conviction and it is his intention to renounce his allegiance to the U.S.A.1äwphï1.ñët

After hearing, the court a quo rendered decision denying the petition on the ground that petitioner did not have the residence required by law six months before he filed his petition for reacquisition of Philippine citizenship. Hence the present appeal.

The court a quo, in denying the petition, made the following comment: "One of the qualifications for reacquiring Philippine citizenship is that the applicant 'shall have resided in the Philippines at least six months before he applies for naturalization' [Section 3(1), Commonwealth Act No. 63]. This 'residence' requirement in cases of naturalization, has already been interpreted to mean the actual or constructive permanent home otherwise known as legal residence or domicile (Wilfredo Uytengsu vs. Republic of the Philippines, 95 Phil. 890). A place in a country or state where he lives and stays permanently, and to which he intends to return after a temporary absence, no matter how long, is his domicile. In other words domicile is characterized by animus manendi. So an alien who has been admitted into this country as a temporary visitor, either for business or pleasure, or for reasons of health, though actually present in this country cannot be said to have established his domicile here because the period of his stay is only temporary in nature and must leave when the purpose of his coming is accomplished. In the present case, petitioner, who is presently a citizen of the United States of America, was admitted into this country as a temporary visitor, a status he has maintained at the time of the filing of the present petition for reacquisition of Philippine citizenship and which continues up to the present. Such being the case, he has not complied with the specific requirement of law regarding six months residence before filing his present petition."

We can hardly add to the foregoing comment of the court a quo. We find it to be a correct interpretation [Section 3 (1) of Commonwealth Act No. 63] which requires that before a person may reacquire his Philippine citizenship he "shall have resided in the Philippines at least six months before he applies for naturalization." The word "residence" used therein imports not only an intention to reside in a fixed place but also personal presence coupled with conduct indicative of such intention (Yen vs. Republic, L-18885, January 31,1964; Nuval vs. Guray, 52 Phil. 645). Indeed, that term cannot refer to the presence in this country of a person who has been admitted only on the strength of a permit for temporary residence. In other words, the term residence used in said Act should have the same connotation as that used in Commonwealth Act No. 473, the Revised Naturalization Law, even if in approving the law permitting the reacquisition of Philippine citizenship our Congress has liberalized its requirement by foregoing the qualifications and special disqualifications prescribed therein. The only way by which petitioner can reacquire his lost Philippine citizenship is by securing a quota for permanent residence so that he may come within the purview of the residence requirement of Commonwealth Act No. 63.

Wherefore, the decision appealed from is affirmed. No costs.

Bengzon, C.J., Concepcion, Reyes, J.B.L., Barrera, Regala, Bengzon, J.P., Zaldivar and Sanchez, JJ., concur.

[G.R. No. 43314. December 19, 1935.]

A. L. VELILLA, administrator of the estate of Arthur Graydon Moody, Plaintiff-Appellant, v. JUAN POSADAS, JR., Collector of Internal Revenue, Defendant-Appellee. 

Ohnick & Opisso for Appellant. 

Solicitor-General Hilado for Appellee. 

SYLLABUS

1. INHERITANCE TAX; DOMICILE OF TAXPAYER. — To effect the abandonment of one’s domicile, there must be a deliberate and provable choice of a new domicile, coupled with actual residence in the place chosen, with a declared or provable intent that it should be one’s fixed and permanent place of abode, one’s home. There is a complete dearth of

evidence in the record that M ever established a new domicile in a foreign country. 

2. INHERITANCE AND INCOME TAXES. — As M’s legal domicile at the time of his death was the Philippine Islands and his estate had its situs here, the inheritance and income taxes here involved were lawfully collected.

D E C I S I O N

BUTTE, J.:

This is an appeal from a judgment of the Court of First Instance of Manila in an action to recover from the defendant-appellee as Collector of Internal Revenue the sum of P77,018,39 as inheritance taxes and P13,001.41 as income taxes assessed against the estate of Arthur G. Moody, deceased. 

The parties submitted to the court an agreed statement of facts as follows: jgc:chanrobles.com.ph

"I. That Arthur Graydon Moody died in Calcutta, India, on February 18, 1931. 

"II. That Arthur Graydon Moody executed in the Philippine Islands a will, certified copy of which marked Exhibit AA is hereto attached and made a part hereof, by virtue of which will, he bequeathed all his property to his only sister, Ida M. Palmer, who then was and still is a citizen and resident of the State of New York, United States of America. 

"III. That on February 24, 1931, a petition for appointment of special administrator of the estate of the deceased Arthur Graydon Moody was filed by W. Maxwell Thebaut with the Court of First Instance of Manila, the same being designated as case No. 39113 of said court. Copy of said petition marked Exhibit BB is hereto attached and made a part hereof. 

"IV. That subsequently or on April 10, 1931, a petition was filed by Ida M. Palmer, asking for the probate of said will of the deceased Arthur Graydon Moody, and the same was, after hearing, duly probated by the court in a decree dated May 5, 1931. Copies of the petition and of the decree marked Exhibits CC and DD, respectively, are hereto attached and made parts hereof. 

"V. That on July 14, 1931, Ida M. Palmer was declared to be the sole and only heiress of the deceased Arthur Graydon Moody by virtue of an order issued by the court in said case No. 39113, copy of which marked Exhibit EE is hereto attached and made a part hereof; and that during the hearing for the declaration of heirs, Ida M. Palmer presented as evidence a letter dated February 28, 1925, and addressed to her by Arthur Graydon Moody, copy of which marked Exhibit FF is hereto attached and made a part hereof. 

"VI. That the property left by the late Arthur Graydon Moody consisted principally of bonds and shares of stock of corporations organized under the laws of the Philippine Islands, bank deposits and other personal properties, as are more fully shown in the inventory of April 17, 1931, filed by the special administrator with the court in said case No. 39113, certified copy of which inventory marked Exhibit GG is hereto attached and made a part hereof. This stipulation does not, however, cover the respective values of said properties for the purpose of the inheritance tax. 

"VII. That on July 22, 1931, the Bureau of Internal Revenue prepared for the estate of the late Arthur Graydon Moody an inheritance tax return, certified copy of which marked Exhibit HH is hereto attached and made a part hereof. 

"VIII. That on September 9, 1931, an income tax return for the fractional period from January 1, 1931 to June 30, 1931, certified copy of which marked Exhibit II is hereto attached and made a part hereof, was also prepared by the Bureau of Internal Revenue for the estate of the said deceased Arthur Graydon Moody. 

"IX. That on December 3, 1931, the committee on claims and appraisals filed with the court its report, certified copy of which marked Exhibit KK is hereto attached and made a part hereof. 

"X. That on September 15, 1931, the Bureau of Internal Revenue addressed to the attorney for the administratrix Ida M. Palmer a letter, copy of which marked Exhibit LL is hereto attached and made a part hereof. 

"XI. That on October 15, 1931, the attorney for Ida M. Palmer answered the letter of the Collector of Internal Revenue referred to in the preceding paragraph. Said answer marked Exhibit MM is hereto attached and made a part hereof. 

"XII. That on November 4, 1931, and in answer to the letter mentioned in the preceding paragraph, the Bureau of Internal

Revenue addressed to the attorney for Ida M. Palmer another letter, copy of which marked Exhibit NN is hereto attached and made a part hereof. 

"XIII. That on December 7, 1931, the attorney for Ida M. Palmer again replied in a letter, marked Exhibit OO, hereto attached and made a part hereof. 

"XIV. That the estate of the late Arthur Graydon Moody paid under protest the sum of P50,000 on July 22, 1931, and the other sum of P40,019,75 on January 19, 1932, making a total of P90,019,75, of which P77,018.39 covers the assessment for inheritance tax and the sum of P13,001.41 covers the assessment for income tax against said estate. 

"XV. That on January 21, 1932, the Collector of Internal Revenue overruled the protest made by Ida M. Palmer through her attorney. 

"XVI. The parties reserve their right to introduce additional evidence at the hearing of the present case. 

"Manila, August 15, 1933."cralaw virtua1aw library

In addition to the foregoing agreed statement of facts, both parties introduced oral and documentary evidence from which it appears that Arthur G. Moody, an American citizen, came to the Philippine Islands in 1902 or 1903 and engaged actively in business in these Islands up to the time of his death in Calcutta, India, on February 18, 1931. He had no business elsewhere and at the time of his death left an estate consisting principally of bonds and shares of stock of corporations organized under the laws of the Philippine Islands, bank deposits and other intangibles and personal property valued by the commissioners of appraisal and claims at P609,767.58 and by the Collector of Internal Revenue for the purposes of inheritance tax at P653,657.47. All of said property at the time of his death was located and had its situs within the Philippine Islands. So far as this record shows, he left no property of any kind located anywhere else. In his will, Exhibit AA, executed without date in Manila in accordance with the formalities of the Philippine law, in which he bequeathed all his property to his sister, Ida M. Palmer, he stated: jgc:chanrobles.com.ph

"I, Arthur G. Moody, a citizen of the United States of America, residing in the Philippine Islands, hereby publish and declare the following as my last Will and Testament . . . ." cralaw virtua1aw library

The substance of the plaintiff’s cause of action is stated in paragraph 7 of his complaint as follows: jgc:chanrobles.com.ph

"That there is no valid law or regulation of the Government of the Philippine Islands under or by virtue of which any inheritance tax may be levied, assessed or collected upon transfer, by death and succession, of intangible personal properties of a person not domiciled in the Philippine Islands, and the levy and collection by defendant of inheritance tax computed upon the value of said stocks, bonds, credits and other intangible properties as aforesaid constituted and constitutes the taking and deprivation of property without due process of law contrary to the Bill of Rights and organic law of the Philippine Islands."cralaw virtua1aw library

Section 1536 of the Revised Administrative Code (as amended) provides as follows: jgc:chanrobles.com.ph

"SEC. 1536. Conditions and rate of taxation. — Every transmission by virtue of inheritance, devise, bequest, gift mortis causa or advance in anticipation of inheritance, devise, or bequest of real property located in the Philippine Islands and real rights in such property; of any franchise which must be exercised in the Philippine Islands; of any shares, obligations, or bonds issued by any corporation or sociedad anonima organized or constituted in the Philippine Islands in accordance with its laws; of any shares or rights in any partnership, business or industry established in the Philippine Islands or of any personal property located in the Philippine Islands shall be subject to the following tax:" 

x       x       x

It is alleged in the complaint that at the time of his death, Arthur G. Moody was a "non-resident of the Philippine Islands." The answer, besides the general denial, sets up as a special defense that "Arthur G. Moody, now deceased, was and prior to the date of his death, a resident in the City of Manila, Philippine Islands, where he was engaged actively in business." Issue was thus joined on the question: Where was the legal domicile of Arthur G. Moody at the time of his death?

The Solicitor-General raises a preliminary objection to the consideration of any evidence that Moody’s domicile was elsewhere than in Manila at the time of his death based on the proposition that as no such objection was made before the Collector of Internal Revenue as one of the grounds of the protest against the payment of the tax, this objection cannot be considered in a suit against the Collector to recover the taxes paid under protest. He relies upon the decision in the case of W. C. Tucker v. A. C. Alexander, Collector (15 Fed. [2], 356). We call attention, however, to the fact that this decision was reversed in 275 U. S., 232; 72 Law. ed., 256, and the case remanded for trial on the merits on the ground that the requirement that the action shall be based upon the same grounds, and only such, as were presented in the protest had been waived by the collector. In the case before us no copy of the taxpayer’s protest is included in the record and we have no means of knowing its contents. We think, therefore, the preliminary objection made on behalf of the appellee does not lie. 

We proceed, therefore, to the consideration of the question on the merits as to whether Arthur G. Moody was legally domiciled in the Philippine Islands on the day of his death. Moody was never married and there is no doubt that he had his legal domicile in the Philippine Islands from 1902 or 1903 forward during which time he accumulated a fortune from his business in the Philippine Islands. He lived in the Elks’ Club in Manila for many years and was living there up to the date he left Manila the latter part of February, 1928, under the following circumstances: He was afflicted with leprosy in an advanced stage and had been informed by Dr. Wade that he would be reported to the Philippine authorities for confinement in the Culion Leper Colony as required by the law. Distressed at the thought of being thus segregated and in violation of his promise to Dr. Wade that he would voluntarily go to Culion, he surreptitiously left the Islands the latter part of February, 1928, under cover of night, on a freighter, without ticket, passport or tax clearance certificate. The

record does not show where Moody was during the remainder of the year 1928. He lived with a friend in Paris, France, during the months of March and April of the year 1929 where he was receiving treatment for leprosy at the Pasteur Institute. The record does not show where Moody was in the interval between April, 1929, and November 26, 1930, on which latter date he wrote a letter, Exhibit B, to Harry Wendt of Manila, offering to sell him his interest in the Camera Supply Company, a Philippine corporation, in which Moody owned 599 out of 603 shares. In this letter, among other things, he states: "Certainly I’ll never return there to live or enter business again." In this same letter he says: jgc:chanrobles.com.ph

"I wish to know as soon as possible now (as to the purchase) for I have very recently decided either to sell or put in a line of school or office supplies . . . before I go to the necessary investments in placing any side lines. I concluded to get your definite reply to this . . . I have given our New York buying agent a conditional order not to be executed until March and this will give you plenty of time . . . anything that kills a business is to have it peddled around as being for sale and this is what I wish to avoid." He wrote letters dated December 12, 1930, and January 3, 1931, along the same line to Wendt. As Moody died of leprosy less than two months after these letters were written, there can be no doubt that he would have been immediately segregated in the Culion Leper Colony had he returned to the Philippine Islands. He was, therefore, a fugitive, not from justice, but from confinement in the Culion Leper Colony in accordance with the law of the Philippine Islands. 

There is no statement of Moody, oral or written, in the record that he had adopted a new domicile while he was absent from Manila. Though he was physically present for some months in Calcutta prior to the date of his death there, the appellant does not claim that Moody had a domicile there although it was precisely from Calcutta that he wrote and cabled that he wished to sell his business in Manila and that he had no intention to live there again. Much less plausible, it seems to us, is the claim that he established a legal domicile in Paris in February, 1929. The record contains no writing whatever of Moody from Paris. There is no evidence as to where in Paris he had any fixed abode that he intended to be his permanent home. There is no evidence that he acquired any property in Paris or engaged in any settled business on his own account there. There is no evidence of any affirmative factors that prove the establishment of a legal domicile there. The negative evidence that he told Cooley that he did not intend to return to Manila does not prove that he had established a domicile in Paris. His short stay of three months in Paris is entirely consistent with the view that he was a transient in Paris for the purpose of receiving treatments at the Pasteur Institute. The evidence in the record indicates clearly that Moody’s continued absence from his legal domicile in the Philippines was due to and reasonably accounted for by the same motive that caused his surreptitious departure, namely, to evade confinement in the Culion Leper Colony; for he doubtless knew that on his return he would be immediately confined, because his affliction became graver while he was absent than it was on the day of his precipitous departure and he could not conceal himself in the Philippines where he was well known, as he might do in foreign parts. 

Our Civil Code (art. 40) defines the domicile of natural persons as "the place of their usual residence." The record before us leaves no doubt in our minds that the "usual residence" of this unfortunate man, whom appellant describes as a "fugitive" and "outcast", was in Manila where he had lived and toiled for more than a quarter of a century, rather than in any foreign country he visited during his wanderings up to the date of his death in Calcutta. To effect the abandonment of one’s domicile, there must be a deliberate and provable choice of a new domicile, coupled with actual residence in the place chosen, with a declared or provable intent that it should be one’s fixed and permanent place of abode, one’s home. There is a complete dearth of evidence in the record that Moody ever established a new domicile in a foreign country. 

The contention under the appellant’s third assignment of error that the defendant collector illegally assessed an income tax of P13,001.41 against the Moody estate is, in our opinion, untenable. The grounds for this assessment, stated by the Collector of Internal Revenue in his letter, Exhibit NN, appear to us to be sound. That the amount of P259,986.69 was received by the estate of Moody as dividends declared out of surplus by the Camera Supply Company is clearly established by the evidence. The appellant contends that this assessment involves triple taxation: First, because the corporation paid income tax on the same amount during the years it was accumulated as surplus; second, that an inheritance tax on the same amount was assessed against the estate, and third, the same amount is assessed as income of the estate. As to the first, it appears from the collector’s assessment, Exhibit II, that the collector allowed the estate a deduction of the normal income tax on said amount because it had already been paid at the source by the Camera Supply Company. The only income tax assessed against the estate was the additional tax or surtax that had not been paid by the Camera Supply Company for which the estate, having actually received the income, is clearly liable. As to the second alleged double taxation, it is clear that the inheritance tax and the additional income tax in question are entirely distinct. They are assessed under different statutes and we are not convinced by the appellant’s argument that the estate which received these dividends should not be held liable for the payment of the income tax thereon because the operation was simply the conversion of the surplus of the corporation into the property of the individual stockholders. (Cf. U. S. v. Phellis, 257 U. S., 171, and Taft v. Bowers, 278 U. S., 460.) Section 4 of Act No. 2833 as amended, which is relied on by the appellant, plainly provides that the income from exempt property shall be included as income subject to tax. 

Finding no merit in any of the assignments of error of the appellant, we affirm the judgment of the trial court, first, because the property in the estate of Arthur G. Moody at the time of his death was located and had its situs within the Philippine Islands and, second, because his legal domicile up to the time of his death was within the Philippine Islands. Costs against the Appellant. 

Malcolm, Villa-Real, and Imperial, JJ., concur. 

G.R. No. L-15080             April 25, 1962

IN THE MATTER OF THE ADOPTION OF THE MINOR NORMA LEE CABER, RICARDO R. CARABALLO,petitioner-appellee, vs.REPUBLIC OF THE PHILIPPINES, opponent-appellant.

Clemente N. Dayrit for petitioner-appellee.Office of the Solicitor General for opponent-appellant.

PADILLA, J.:

In a verified petition filed on 26 September 1958 in the Court of First Instance of Pampanga, Ricardo R. Caraballo, an American citizen enlisted in the United States Air Force as staff sergeant detailed in Clark Field, Angeles, Pampanga, where he and his wife Graciela G. Caraballo live, alleges that he and his wife have no legitimate, legitimated, acknowledged natural children, natural children by legal fiction or any other descendant; that with his wife's written consent (Exhibit C) he desires to adopt as his child Norma Lee Caber, a five-day old natural daughter of Mercedes J. Caber begotten by an unknown father, who gave her consent to the adoption in a sworn statement (Exhibit B); that since the day following her birth Norma Lee Caber has been reared and cared for by him and his wife who have developed love and affection for her; that he never has been convicted of any crime involving moral turpitude; that financially and morally he is able to support, bring up and educate the child; and prays that after notice, publication and hearing Norma Lee Caber be declared his child for all intents and purposes, free from any obligation of obedience and maintenance with respect to her natural mother Mercedes J. Caber (Sp. Proc. No. 1391).

On 26 September 1958 the Court ordered the verified petition filed by Ricardo R. Caraballo to be published and was published in the Daily Mirror once a week for three consecutive weeks setting the petition for hearing on 18 October 1958 (Exhibit A). As at the hearing nobody appeared to object to the petition for adoption, petitioner's counsel prayed for an order of default, which was entered against all interested parties, except the Solicitor General or Provincial Fiscal who, according to the Court must appear in adoption cases.

On 27 October 1958 the Provincial and Assistant Provincial Fiscal of Pampanga moved for the dismissal of the petition for adoption on the ground that it states no cause of action and that the petitioner, being a non-resident alien, is not qualified to adopt.

On 28 October 1958 the Court granted the petitioner ten days within which to file an answer to the motion to dismiss and submit a memorandum of authorities, and the fiscal the same number of days to reply.

On 3 November 1958 the petitioner filed an answer or objection to the motion to dismiss, to which on 14 November the Provincial Fiscal replied.

On 17 November 1958 the Court denied the motion to dismiss.

On 12 December 1958 the petitioner moved that the case be set for hearing. On 15 December 1958 the Court set the petition for hearing on 22 December 1958 at 9:00 o'clock in the morning.

After hearing, the Court found the following:

... Petitioner is 32 years old while the child sought to be adopted is three months old, having been born on September 20, 1958 (Exhibit E). The petitioner has been residing at Clark Air Base for the last 25 months. He has had the child, Norma Lee Caber, in his household as a daughter since the day following that of her birth and has developed a fondness for her and intends to bring her up and educate her as his own to the best of his ability. He has never had any children, either with his wife, Graciela G. Caraballo, with whom he has been married for 12 years, or with any other woman.

He is a staff sergeant in the United States Air Force and receives approximately $465.00 a month, including allowances. He expects to retire as a master sergeant after 6 years and 3 months, and as such, he would receive a monthly pension of about $175.00 to $190.00 for the rest of his life. He has an allotment check made out to a bank for $84.00 a month. He has two insurance policies with an aggregate value of P15,000.00 and has a savings of $6,000.00 to $7,000.00 which he has been accumulating for the last 15 to 20 years. After retirement, he intends to settle down permanently in the Philippines where he will engage in the tourist business by putting up a hotel. 1äwphï1.ñët

It also appears that petitioner has never been convicted of any crime whatsoever and rendered a decree as follows: .

PREMISES CONSIDERED, the Court believes that it would be to the best interest of the child to be placed under the care and custody of petitioner who is materially and morally able to educate and bring

her up properly and adequately, and, therefore, adjudges that henceforth Norma Lee Caber shall be, for all legitimate intents and purposes, the child of Ricardo R. Caraballo and shall be freed from all legal obligations of obedience and maintenance with respect to her natural mother, Mercedes Caber, and that her surname shall be changed to that of petitioner, and pursuant to Article 346 of the Civil Code of the Philippines, this decision shall be recorded in the local civil registry of Angeles, Pampanga, and the name and surname of the said minor shall thereafter be Norma Lee Caraballo.

x x x           x x x           x x x

The point to determine is whether under the law the petitioner is a person qualified to adopt. The Government contends that he is not, invoking the provisions of article 335 of the Civil Code. The article provides: .

The following cannot adopt —

(1) Those who have legitimate, legitimated, acknowledged natural children, or natural children by legal fiction;

(2) The guardian, with respect to the ward, before the final approval of his accounts;

(3) A married person, without the consent of the other spouse;

(4) Non-resident aliens;

(5) Resident aliens with whose government the Republic of the Philippines has broken diplomatic relations;

(6) Any person who has been convicted of a crime involving moral turpitude, when the penalty imposed was six months' imprisonment or more.

A person is deemed a resident of a place in a country or state where he has his abode and lives there permanently. It is a place chosen by him freely and voluntarily, although he may later on change his mind and live elsewhere. A place in a country or state where he lives and stays permanently and to which he intends to return after a temporary absence, no matter how long, is his domicile. A sojourn such as a tourist though actually present at a place of his free choice cannot be deemed a resident of that place. A foreigner who has a business or interest therein or property located in a country or state and goes and stays in that country or state to look after his business or property or to check up the manner or way his business or property is being conducted or run by his manager but does not intend to remain in the country indefinitely cannot be deemed a resident of such country. Actual or physical presence or stay of a person in a place, not of his free and voluntary choice and without intent to remain there indefinitely, does not make him a resident of the place. Looking after the welfare of a minor to be adopted the law has surrounded him with safeguards to achieve and insure such welfare. It cannot be gainsaid that an adopted minor may be removed from the country by the adopter, who is not a resident of the Philippines, and placed beyond the reach and protection of the country of his birth.

Ricardo R. Caraballo, the petitioner, an American citizen who now lives in Clark Field, municipality of Angeles, province of Pampanga, Republic of the Philippines, because of his assignment as staff sergeant in the United States Air Force — his stay in the Philippines then being temporary — is a non-resident alien who, pursuant to clause 4 of the above quoted article of the Civil Code, is disqualified to adopt a child in the Philippines.

The decree appealed from is set aside and the petition dismissed, without pronouncement as to costs.

Bengzon, C.J., Bautista Angelo, Labrador, Reyes, J.B.L., Paredes and Dizon, JJ., concur.Concepcion, J., concurs in the result.Barrera, J., took no part.