G.R. No.

L-30241

December 29, 1928

GREGORIO NUVAL, petitioner-appellant,

vs.
NORBERTO GURAY, ET AL., respondents.
NORBERTO GURAY, appelllee.
VILLA-REAL, J.:
This appeal was taken by the petitioner Gregorio Nuval from the
judgment of the Court of First Instance of La Union, upholding the
defense of res judicata and dismissing the quo warranto proceedings
instituted by the said Gregorio Nuval against Norbeto Guray and
others, with costs against the petitioner.
In support of his appeal, the appellant assign the following alleged
errors as committed by the trial court in its judgment, to wit:
1. The lower court erred in holding that the judgment rendered upon
Gregorio Nuval's petition for the cancellation of Norbeto Guray's name
on the election list of Luna is conclude and constitutes res judiata in
the present case.
2. The trial court erred in not holding that Norbeto Guray at the time of
his election, was ineligible for the office of the residence in said
municipality.
3. The lower court erred in not finding in its judgment that the
petitioner is entitled to hold the office in question.
In regard to the first assignment of error, the evidence adduced during
the trial of the case shows:
That on May 11, 1928, and within the period fixed by section 437 of
the Administrative Code, as amended by Act No. 3387, Gregorio Nuval
filed, in civil case No. 1442 of the Court of First Instance of La Union,
in his dual capacity as a voter duly qualified and registered in the
election list of the municipality of Luna and as a duly registered
candidate for the office of municipal president of said municipality, a
petition against Norberto Guray asking for the exclusion of his name
from the election list of said municipality, not being a qualified voter of
said municipality sine he had not resided therein for six months as
required by section 431 of the said Administrative Code.
Proceedings were had upon the petition in accordance with sections
437 and 438 of the same Code, as amended by Act No. 3387, and
Judge E. Araneta Diaz, rendered judgment dismissing it because, in
his opinion, Norberto Guray was a bona fide resident of the
municipality of Luna from Janury 1, 1927. As that order was not
appealable, Norberto Guray's name remained in the election list of the
municipality of Luna.
The general election having been held on June 5, 1928, Norbeto
Guray was elected to the office of municipal president of Luna by a
plurality of votes, Gregorio Nuval obtaining second place. On June 7,
1928, the municipal council of Luna, acting as the municipal, Norberto
Guray, elected to the office of municipal president of the said
municipality of Luna for the next triennium.

On June 18, 1928, Gregorio Nuval filed the present action of quo
warranto as provided in section 408 of the Administrative Code, as
amended by Act No. 3387, asking that Norberto Guray be declared
ineligible had a legal residence of one year previuos to the election as
required by section 2174 of the said Administrative Code in order to be
eligible to an elective municipal office.
The question to be solved under the first assignment of error is
whether or not the judgment rendered in the case of the petition for the
exclusion of Norberto Guray's name from the election list of Luna,
is res judicata, so as to prevent the institution and prosecution of an
action in quo warranto, which is now before us.
The procedure prescribed by section 437 of the Administrative Code,
as amended by Act. No. 3387 is of a summary character and the
judgment rendered therein is not appealable except when the petition
is tried before the justice of the peace of the capital or the circuit
judge, in which case it may be appealed to the judge of first instance,
with whom said two lower judges have concurrent jurisdiction.
The petition for execution was presented by Gregorio Nuval in his
capacity as qualified voter of the municipality of Luna, and as a duly
registered candidate for the office of the president of said municipality,
against Norberto Guray as a registered voter in the election list of said
municipality. The present proceedings of quo warranto was intreposed
by Gregorio Nuval in his capacity as a registered candidate voted for
the office of municipal president of Luna, against Norberto Guray, as
an elected candidate for the same office. Therefore, there is no identity
of parties in the two cases, since it is not enough that there be an
identity of persons, but there must be an identity of capacities in which
said persons litigate. (Art. 1259 of the Civil Code; Bowler vs. Estate of
Alvarez, 23 Phil., 561; 34 Corpus Juris, p. 756, par. 1165.)
In said case for the petition for the exclusion, the object of the
litigation, or the litigious matter was the conclusion of Norberto Guray
as a voter from the election list of the municipality of Luna, while in the
present quo warranto proceeding, the object of the litigation, or the
litigious matter in his exclusion or expulsion from the office to which he
has been elected. Neither does there exist, then, any identity in the
object of the litigation, or the litigious matter.
In said case of the petition for exclusion, the cause of action was that
Norberto Guray had not the six months' legal residence in the
municipality of Luna to be a qualified voter thereof, while in the present
proceedings of quo warranto, the case of this action is that Norberto
Guray has not the one year's legal residence required for the eligibility
to the office of municipal president of Luna. Neither does there exist,
therefore, identity of causes of action.
In order that res judicata may exist the following are necessary: (a)
Identity of parties; (b) identity of things; and (c) identity of issues
(Aquino vs. Director of Lands, 39 Phil., 850). And as in the case of the
petition for exclusion and in the present quo warranto proceeding, as
there is no identity either of parties, or of things or litigious matter, or of
issues or causes of action, there is no res judicata.1awphi1.net
For the above considerations, the trial court erred in holding that the
judgment rendered in the case on the petition of Gregorio Nuval
asking for the cancellation of Norberto Guray's name in the election

list of Luna is conclusive and constitutes res judicata in the present

case.

transferred his residence from the municipality of Luna to that of

Balaoan.

With respect to the second assignment of error, the evidence

establishes the following facts:

The only question to determine refers to the date when he once more
established his residence in the municipality of Luna.

Up to June 27, 1922, Norberto Guray had resided in the municipality

of Luna, his birthplace, where he had married and had held the office
of municipal treasurer. On that date he was appointed municipal
treasurer of Balaoan, Province of La Union. The rules of the provincial
treasurer of La Union, to which Norberto Guray was subject as such
municipal treasurer, require that municipality treasurers live
continuously in the municipality where they perform they official duties,
in order to be able to give an account of their acts as such treasurers
at any time. In order to qualify and be in a position to vote as an
elector in Balaoan in the general election of 1925, Norberto Guray
asked for the cancellation of his name in the election lists of Luna,
where he had voted in the general elections of 1922, alleging as a
ground therefore the following: "On the ground of transfer of any
residence which took place on the 28th day of June, 1922. My correct
and new address is Poblacion, Balaoan, La Union;" and in order to be
registered in the subscribed affidavit Exhibit F-1 before the board of
election inspectors of precinct No. 1 of Balaoan, by virtue of which he
was registered as an elector of the said precinct, having made use of
the right of suffrage in said municipality in the general elections of
1925. In his cedula certificates issued by himself as municipal
treasurer of Balaoan from the year 1923 to 1928, included, he made it
appear that his residence was the residential district of Balaoan. In the
year 1926, his wife and children who, up to that time, had lived in the
municipality of Balaoan, went back to live in the town of Luna in the
house of his wife's parents, due to the high cost of living in that
municipality. Norberto Guray used to go home to Luna in the
afternoons after office hours, and there he passed the nights with his
family. His children studied in the public school of Luna. In January,
1927, he commenced the construction of a house of strong materials
in Luna, which has not yet been completed, and neither be nor his
family has lived in it. On February 1, 1928, Norberto Guray applied for
and obtained vacation leave to be spent in Luna, and on the 16th of
the same month he filed his resignation by telegraph, which was
accepted on the same day, also by telegraph. Nothwithstanding that
he was already provided with a cedula by himself as municipal
treasurer of Balaoan on January 31, 1928, declaring him resident of
said town, he obtained another cedula from the municipality of Luna
on February 20, 1928, which was dated January 15, 1928, in which it
is presented that he resided in the barrio of Victoria, municipality of
Luna, Province of La Union. On February 23, 1928, Norberto Guray
applied for and obtained the cancellation of his name in the election
list of the municipality of Balaoan, and on April 14, 1928, he applied for
registration as a voter in Luna, alleging that he had been residing in
said municipality for thirty years. For this purpose he made of the
cedula certificate antedated.

It is an established rule that "where a voter abandons his residence in

a state and acquires one in another state, he cannot again vote in the
state of his former residence until he has qualified by a new period of
residence" (20 Corpus Juris, p. 71, par. 28). "The term 'residence' as
so used 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." (People vs.
Bender, 144 N. Y. S., 145.)

In view of the facts just related, the question arises whether or not
Norberto Guray had the legal residence of one year immediately prior
to the general elections of June 5, 1928, in order to be eligible to the
office of municipal president of Luna, Province of La Union.
There is no question but that when Norberto Guray accepted and
assumed the office of municipal treasurer of Balaoan, La Union, he

Since Norberto Guray abandoned his first residence in the municipality

of Luna and acquired another in Balaoan, in order to vote and be a
candidate in the municipality of Luna, he needed to reacquire
residence in the latter municipality for the length of time prescribed by
the law, and for such purpose, he needed not only the intention to do
so, but his personal presence in said municipality.
By reason of his office as municipal treasurer of Balaoan and on
account of the rules of the provincial treasurer of La Union, under
whose jurisdiction was such municipality, Norberto Guray had to
reside and in fact resided in said municipality until the 6th of February,
1928 when he filed his resignation from his office, which was accepted
on the same date. The fact that his family moved to the municipality of
Luna in the year 1926 in order to live there in view of the high cost of
living in balaoan; the fact that his children studied in the public shool of
said town; the fact that on afternoons after hours he went home to the
municipality of Luna and there passed the night with his family, are not
in themselves alone sufficient to show that from said year he had
transfered his residence to said municipality, since his wife and
children lived with his father-in-law, in the latter's house that only in the
month of January, 1927, did he begin the construction of a house of
strong materials, which is not yet completed, nor occupied by himself
or his family, His aftrenoon tips to Luna, according to his own
explanation given to the provincial treasurer, were made for purpose of
visiting his sick father. His own act in recording in his cedula
certificates for the years 1927 and 1928 issued by himself in his favor
as municipal treasurer of Balaoan, that his place of residene was that
municipality, and in taking out a new cedula in the municipality of Luna
of February 20, 1928, and having the date of its issuance
surreptitiuosly put back to January 15 1928, show that until the date of
his resignation he did not consider himself as a resident of the
municipality of Luna. The fact that his wife and children lived in Luna
not in his own house but in that of his wife's father since the year
1926, cannot be looked upon as a change of residence, since a
change of residence requires an actual and deliberate abandonment
of the former (20 Corpus Juris, p. 71) and one cannot have two legal
residences at the same time.
The present case is different from that of Doctor Apacible cited by the
appellee in his brief. Doctor Apacible never had abandoned his legal
residence in the Province of Batangas, nothwithstanding that he had
been living with his family in the City of Manila, taking out his cedula
certificates here, but he never exercised the right of suffrage here.
Norberto Guray abandoned his legal residencce in the municipality of

Luna, transferring it to the municipality of Balaoan by reason and an

account of the requirements of the rules of the provincial treasurer of
La Union, under whose jurisdiction is said municipality, exercising his
right of suffrage in the latter.1awphi1.net
For the foregoing considerations, we are of opinion and so hold in fact
and in law Norberto Guray only abandoned his legal residence in the
Municipality of Balaoan, and began to acquire another in the
municipality of Luna from Febraury 16, 1928, when he filed his
resignation from the office of municipal treasurer of Balaoan which he
had been holding, and which resignation was accepted; and on being
elected municipal president of Luna in the general elections of June 5,
1928, he had not reacquired the legal residence necessary to be
validly elected to said office.
By virtue whereof, the election of respondent-appellee Norberto Guray
to the office of municipal president of Luna is hereby held to be
unlawful and quashed and, in consequence, he has no right to take
possession of said office, petitioner Gregorio Nuval being the one
legally elected to said office with a right to take possession thereof,
having secured second place in the election. With costs against the
respondent. So ordered.

warranto proceedings referring to offices filled by appointment, what is

determined is the legality of the appointment. In the first case when
the person elected is ineligible, the court cannot declare that the
candidate occupying the second place has been elected, even if he
were eligible, since the law only authorizes a declaration of election in
favor of the person who has obtained a plurality of votes, and has
presented his certificate of candidacy. In the second case, the court
determines who has been legally appointed and can and ought to
declare who is entitled to occupy the office.
In view of the foregoing, we are of opinion that the judgment rendered
in this case on December 29, 1928, should be, and is hereby,
amended, eliminating from the dispositive part thereof, the holding that
Gregorio Nuval is the one who has been legally elected, so as to read
as follows:
By virtue whereof, the election of respondent-appellee
Norberto Guray to the office of Municipal president of Luna,
is hereby declared unlawful and quashed and,
consequently, that he has no right to take possession of
said office, with costs against said respondent.
So ordered.

Avancea, C. J., Ostrand, Johns and Romualdez, JJ., concur.

Villamor, J., dissents.

Avancea, C. J., Malcolm, Johns and Romualdez, JJ., concur.

RULING ON THE MOTION FOR RECONSIDERATION

February 1, 1929
VILLA-REAL, J.:
This is a motion praying for the reasons given that the judgment
rendered in this case on December 29, 1928 be reconsidered, and
another rendered affirming the judgment appealed from.
In regard to the grounds of the motion with reference to the defence
of res judicata, as the movant does not adduce any new argument in
support thereof, and inasmuch as this court has already discussed
question at length, we find no sufficient reason to grant the motion on
said grounds.
As to the other grounds touching this court's holding that Gregorio
Nuval is the one who has been legally elected to the office of
municipal president of Luna, La Union, and entitled to take possession
thereof, having received second place, we consider them meritorious,
for the reason that 408 of the Election Law, providing the remedy in
case a person not eligible should be elected to a provincial or
municipal office, does not authorize that it be declared who has been
legally elected, thus differing from section 479 of the law, which
contains such an authorization, and for the reason, furthermore, that
section 477 of the said law provides that only those who have
obtained a plurality of votes, and have presented their certificates of
candidacy may be certified as elected to municipal offices. Elective
offices are by nature different from the appointive offices. The
occupation of the first depends on the will of the elector, while that of
the second depends on the will of the authority providing for it. Inquo
warranto proceedings referring to offices filled by election, what is to
be determined is the eligibility of the candidate elect, while in quo

[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.

DECISION
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 plaintiffs 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

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 Moodys 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 taxpayers 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 Ill 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 Moodys 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 ones
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 ones fixed and permanent
place of abode, ones 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 appellants 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
collectors 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 appellants 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.
G.R. No. L-22041

May 19, 1966

MELECIO CLARINIO UJANO, petitioner and appellant,

vs.
REPUBLIC OF THE PHILIPPINES, 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.1wph1.t
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.
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.
GRIO-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:

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.)

... 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.)

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.

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.

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.)

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).

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.

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.

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 Statesbefore 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 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.
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 on
March 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 withanimus 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 TO
BE 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 exPresident 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 other
place. 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 Arroyo45 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 inMarcelino 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.