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[ GR No. 45237, Oct 28, 1936 ]



63 Phil. 644

[ G. R. No. 45237, October 28, 1936 ]




This is a petition for  mandamus filed by Mariano Molo against  A.  L. Yatco, Collector of Internal Revenue, Angel S. Gamboa and Jose V. Cabrera, praying, for the reasons alleged therein, for the issuance of a writ addressed to the above-named respondents  ordering  them to return  and deliver the documents stated in the  petition to the  herein petitioner immediately, as well as any other orders which the court may  deem just and  equitable.

The pertinent facts necessary for the resolution  of the legal  question raised in this petition are as follows:
By virtue  of a search warrant issued by the Court  of First Instance of Rizal for an alleged violation of the Usury Law, the  special agent of the Anti-Usury  Board, Jose V. Cabrera,  on  June 15, 1935, seized a trunk containing various documents, note books, lists,  contracts and other papers  belonging to the petitioner  Mariano Molo, issuing the corresponding receipt in favor of the latter (Exhibit A). After the necessary investigation,  said board, not having found sufficient evidence to warrant the prosecution of said petitioner, dismissed the  case.  On November  16,  1935, the petitioner Mariano Molo wrote a letter to said board requesting the  return of the documents seized by it,  but, it having been  discovered during the examination of the documents in question that the petitioner was engaged in the money lending business without the  necessary privilege tax receipts required by sections 1453 and 1464 (x) of the Administrative  Code, notice thereof was sent to the Collector of Internal Revenue who assigned one of his agents to examine the documents and papers in question.  It was found during the examination that the petitioner  had engaged in the  money lending business in  the  years  1929, 1931, 1932  and 1934, without being provided with the necessary privilege  tax receipts.   In view of this the  Collector  of Internal Revenue imposed upon said petitioner a privilege tax in the sum of P350 corresponding to the first quarter of the year 1931, the first, second, third and last quarters of the year 1932, and the third quarter of the year 1934, which sum was  paid under protest  by the  petitioner.  In as much as the act committed by the petitioner constitutes, in the opinion of the Collector of Internal Revenue, a violation of section 2722, in connection with sections 1453 and 1464  (x) of the Administrative Code,  which makes him amenable to criminal action, said Collector of Internal Revenue, availing himself of the authority conferred upon him by section 1582  of the  Administrative Code, offered the petitioner the privilege of settling the case extra-judicially by  payment of P10.  As the petitioner  had refused to make a compromise,  said collector,  in the exercise of the authority granted him by section 1434 of the Administrative Code, in connection with the Bookkeeping Law,  Act No. 3292, and section 12 of Rules No.  58 of the Department of Finance, asked the chairman  of  the Anti-Usury  Board to retain possession of the documents and  papers  seized by his office from the petitioner until the latter's case with the Bureau of Internal Revenue is  finally settled.

In  view of the above-stated facts the question  arises whether or not the writ of mandamus herein applied for should be issued.

Section 515, in connection with section 222, of the Code of Civil Procedure, authorizes this court to "render a judgment granting a peremptory order against the defendant, commanding him, immediately after the  receipt of such order, or at some other specified time, to do the act required to be done to protect the rights of the plaintiff  who has been  unlawfully excluded from the  use and enjoyment of said rights."
According to  section 95 of General Orders, No. 58, "a search warrant is an order in writing, issued in the name of the People of the Philippine Islands, signed by a judge or a justice of the peace,  and directed to a peace officer, commanding him to  search  for personal property and bring it before the court,"  and the  last part of the form of the  search  warrant prescribed  in section 99 of said General  Orders, No.  58 reads: "you are, therefore, commanded  *   *   *  to  bring  it forthwith  before  me *  *  *  It is clear that, under the above-cited sections of General  Orders,  No. 58, the  officer charged with the execution of a search warrant must  make a return thereof to the  court or  judge who, issued  it, delivering to said court the personal property seized  under the warrant in question.

It appears from the present case that the documents and other papers  belonging  to  the petitioner Mariano Molo, which were seized by a special agent  of the  Anti-Usury Board by virtue of a warrant issued by the Court of First Instance of Rizal, came into the possession of said board, and  while it does not appear how  said board came to have them in its possession, it is presumed that it was by virtue of an authority given by said court  (sec. 334, No. 31, Act No.  190).  By virtue of said authority the board became an agent of the Court of First Instance of Rizal in the custody of the documents in question, with the obligation to return them to said court upon the  termination of the investigation for which  the board needed them.  As the Anti-Usury Board had  found  no  sufficient  evidence to warrant a criminal action against the  petitioner for  violation of the Usury Law, and as said board had dismissed the case under investigation, it was duty bound to return said  documents and papers to the Court of First  Instance of Rizal so that the latter might order the return thereof to their owner.

Although the Collector of Internal Revenue is authorized by section 1434 of the Administrative Code to make seizures for the violation of any penal  law or regulation administered by the Bureau of Internal Revenue, inasmuch as the documents and papers in question are in the custody of the Court of First Instance of  Rizal, through its agent the Anti-Usury Board; said Collector of Internal  Revenue could not seize said documents and papers without authority of said court because it  would amount to an undue interference by an administrative  official in the affairs of a judicial  official.  Neither could the  Anti-Usury Board keep said documents for itself because, being a mere agent of said court,  it was not authorized by its  principal to dispose of them.

Therefore, while the retention of the documents in question by the Anti-Usury Board, upon petition of the Collector of Internal Revenue, is illegal, it not being authorized by the Court of First Instance of Rizal in whose legal custody the  documents  in  question  are, neither the Collector  of Internal Revenue nor the Anti-Usuary Board can be ordered to return said  documents  to the petitioner on the ground that the one having the legal custody thereof is the Court of First Instance of Rizal  which had ordered their seizure and which is the only one authorized by law to return them to their owner.

Wherefore, without prejudice to the right of the petitioner to ask the Court of First Instance of Rizal for the return  of  the  documents  in  question, the petition for a writ of mandamus is denied  and it is dismissed, without special pronouncement  as to costs.   So ordered.

 Avanceila, C.  J.,
and Diaz, J., concur.



My views as to the law  governing the issuance and use of search warrants have been set forth quite fully in my dissenting opinion  in the case of People  vs.  Rubio (57 Phil., 384, 395).  Applying the principles therein discussed to the case now under consideration, it seems  clear that the petitioner's documents  and papers were  illegally seized, and  he is therefore entitled to  have the same returned to him.  The principle announced and  followed by the Supreme Court of the United States is that which declares as illegal searches  and seizures,  whether made with or without a search warrant, when the purpose of making search was  solely to secure evidence to be used in a criminal or penal proceeding against the person in whose house or office the articles searched for and seized were found.

I, however, agree that the petition in this case must be denied, because mandamus  is not the proper remedy.  The rule  is that mandamus will not ordinarily issue if the petitioner has another adequate  remedy.   As  pointed out in the dissenting opinion of Justice Laurel, the petitioner could have resorted to any one of the various remedies suggested, the usual one being the filing of a motion in the court from which the warrant was issued for the return of the documents and papers illegally seized.  In Nicolas vs. Judge of First Instance of Ilocos  Norte and Formantes  (42 Phil, 943), this court held that the writ of mandamus will not be issued where the  petitioner has a complete remedy in the Court of First Instance by motion.

Much as I condemn the violation of  constitutional rights, I see no compelling reason justifying a departure from the usual  and orderly course of judicial proceedings  in the present case.



I dissent.  In my opinion the remedy  should be granted.
(1)  According to section 515  of the Code of Civil  Procedure, this court has concurrent jurisdiction with  Courts of First  Instance to issue writs  of mandamus in all cases where an  inferior  tribunal, corporation, board or  person unlawfully excludes the plaintiff from the use and enjoyment of  a right  to  which he is entitled.  Undoubtedly, every  person, whether  a citizen or  an alien  resident, is entitled to possess, use  and enjoy his private papers which are,  as Lord Camden  has said  in the celebrated case of Entinck  vs. Carrington (19 How. St. Tr., 1029),  among his  dearest possessions.  No person or body of persons or court, acting as  a governmental organ and under the guise of law, by virtue of a search  warrant, can deprive him of this  right.  (See Vy Kheytin vs. Villareal, 42 Phil.,  886, 898; Regidor vs. Araullo, 5  Off. Gaz.,  955, 961, 962; U. S. vs. De los Reyes and Esguerra, 20 Phil.,  467.)

(2)  Ordinarily, the practice is to file  a timely  and  seasonable application in the form  of a  motion  in  the court which  issued the search warrant asking for  the  determination of the legality or propriety of the search and seizure made and petitioning for the return of those  papers and effects the fraudulent or illegal  character of  which have not been fully established (People vs. Carlos, 47 Phil., 626, 631; Weeks vs. United States, 232 U. S., 383; 58 Law. ed., 652; Silverthorne Lumber Co. vs. United States, 251 U. S., 385; 64 Law. ed., 319; Wagner vs. Upshur, 90 Md., 519). But this remedy is not  exclusive.   In the United States, various remedies are afforded.  When the properties involved have been seized by virtue of a search warrant and are in the possession of an officer  of the court or one acting under its order, and no  action is pending, the application may be made  by means  of an  independent summary  proceeding (56 C.  J., sec. 189, p. 1253).  Libel on the seizure is usually brought (56 C. J.,  sec.  184, p. 1252, citing In re Troy Pure Food Products Co., 14 F.  [2d], 677) and replevin suits  are allowed (Duboff vs.  Haslan,  182 N.  Y. S.,  896, aff. 195  App.  Div., 177; 186 N.  Y. S., 481);  and where property  is seized  under color  of judicial process  and brought  under  the control of the court, thus being placed beyond  the reach of replevin or   other independent or plenary remedy, a petition for  the restoration  of property unlawfully seized may be presented  (56 C. J., sec.  185, p. 1252,  citing  U. S. vs.  McHie, 194 Fed., 894).  The  fact then,  that one remedy is usually  resorted to  does  not  preclude recourse  to other  remedies;  and I believe  that, in meritorious cases, the extraordinary legal remedy of mandamus should be granted as this remedy is more speedy and adequate, being more or  less  summary in character.

(3)  Under section 515 of the  Code of Civil Procedure also, the remedy of mandamus may be availed of where the inferior court  or judge thereof  unlawfully  neglects the performance of a duty specifically or specially  enjoined by law.  Under section 95 of the Code of Criminal Procedure,  it is the  duty of the officer serving the search warrant to deliver the things seized thereunder to the court whose duty it is, in turn, to deal with and dispose of the same  in accordance with  law.  It  is  admitted that the Anti-Usury Board  conducted an investigation  of the papers seized and, finding no sufficient evidence, dismissed the case against the  petitioner herein.   The  further  retention  of his papers, after the lapse  of more than one year, without either the officer who served  the warrant or the  court which issued it taking any action with reference thereto, is nothing short of an infringement of the right to personal security and private property of the citizen.

(4) The  unreasonable delay  in returning the  private papers of the petitioner has no explanation.   The illegality of the retention having been shown, it  becomes  the duty  of this  court to grant the writ of mandamus prayed for and to command the respondents to return the papers to the petitioner without the necessity of resorting to the court of origin for an order to that effect.
Otherwise, the elaborate constitutional and statutory provisions which guaranty the sacred and indefeasible right of the people to be secure in their houses, papers and effects from the unjust encroachment of  governmental  power would be  but an empty medley of words without meaning, without purpose.. We should be ever vigilant in the protection and  maintenance of basic  individual rights.

I concur in  the preceding dissenting opinion of Justice Laurel.