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MATEO CAASI, petitioner, vs. THE


HON. COURT OF APPEALS and
MERITO C. MIGUEL, respondents.

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

1. POLITICAL LAW; SUFFRAGE AND ELECTIONS;


ELIGIBILITY OF CANDIDATES; IMMIGRATION TO THE
UNITED STATES, CONSTITUTED AN ABANDONMENT OF
DOMICILE AND RESIDENCE IN THE PHILIPPINES. 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. 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 United States with the intention
to live 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.
2. ID.; ID.; ID.; "IMMIGRATION" AND "IMMIGRANT",
DEFINED. "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.)
3. ID.; ID.; ID.; SECTION 68 OF THE OMNIBUS ELECTION
CODE (B.P. BLG. 881), APPLICABLE TO THE CASE AT
BAR, NOT SECTION 18, ARTICLE IX OF THE
1987CONSTITUTION. Section 18, Article XI of the
1987 Constitution which provides that "any public
officer or employee who seeks to change his
citizenship or acquire the status of an immigrant of
another country during his tenure shall be dealt with by
law" is not applicable to Merito Miguel for he acquired
the status of an immigrant of the United
States before he was elected to public office, not
"during his tenure" as mayor of Bolinao, Pangasinan.
The law applicable to him is Section 68 of the Omnibus
Election Code (B.P. Blg. 881), which provides: "Any
person who is a permanent resident of or an immigrant

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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."
4. ID.; ID.; ID.; REQUIRED PRIOR WAIVER OF GREEN
CARD, CONSTRUED. To be "qualified to run for
elective office" in the Philippines, the law requires that
the candidate who is a green card holder must have
"waived his status as a permanent resident or
immigrant of a foreign country." Therefore, his act of
filing a certificate of candidacy for elective office in the
Philippines, did not of itself constitute a waiver of his
status as a permanent resident or immigrant of the
United States. The waiver of his green card should be
manifested by some act or acts independent of and
done prior to filing his candidacy for elective office in
this country. Without such prior waiver, he was
"disqualified to run for any elective office" (Sec.
68, Omnibus Election Code).
5. ID.; ID.; ID.; RESIDENCE REQUIREMENT; REASON
THEREFOR. 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.
6. ID.; ID.; ID.; WAIVER OF IMMIGRANT STATUS,
SHOULD BE AS INDUBITABLE AS THE APPLICATION FOR
IT. 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

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conclusion is that he was disqualified to run for said


public office, hence, his election thereto was null and
void.
GRIO-AQUINO, J p:
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. LLpr
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. 87604), 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

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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: cdphil

". . . it is pointless for the Regional


Trial Court to hear the case
questioning the qualification of the
petitioner
as
resident
of
the
Philippines, after the COMELEC has
ruled that the petitioner meets the
very
basic
requirements
of
citizenship
and
residence
for
candidates to elective local officials
(sic) and that there is no legal
obstacles (sic) for the candidacy of
the petitioner, considering that
decisions of the Regional Trial Courts
on quo warranto cases under the
Election Code are appealable to the
COMELEC." (p. 22, Rollo, G.R.
No. 88831.)
These two cases pose the twin issues of: (1) whether or
not a green card is proof that the holder is a permanent
resident of the United States, and (2) whether
respondent Miguel had waived his status as a
permanent resident of or immigrant to the U.S.A. prior
to the local elections on January 18, 1988.
Section 18, Article XI of the 1987 Constitution provides:
"Sec.
18. Public
officers
and
employees owe the State and
this Constitution allegiance
at
all
times, and any public officer or
employee who seeks to change his
citizenship or acquire the status of an

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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. dctai
In the case of Merito Miguel, the Court deems it
significant that in the "Application for Immigrant Visa
and Alien Registration" (Optional Form No. 230,
Department of State) which Miguel filled up in his own
handwriting and submitted to the US Embassy in
Manila before his departure for the United States in
1984, Miguel's answer to Question No. 21 therein
regarding his "Length of intended stay (if permanently,
so state)," Miguel's answer was, "Permanently."
On its face, the green card that was subsequently
issued by the United States Department of Justice and
Immigration and Registration Service to the respondent
Merito C. Miguel identifies him in clear bold letters as a
RESIDENT ALIEN. On the back of the card, the upper
portion, the following information is printed:
"Alien Registration Receipt Card
"Person identified by this card is
entitled to reside permanently and
work in the United States." (Annex A
pp. 189-190, Rollo of G.R. No. 84508.)
Despite his vigorous disclaimer, Miguel's immigration
to the United States in 1984 constituted an
abandonment of his domicile and residence in the
Philippines. For he did not go to the United States
merely to visit his children or his doctor there, he
entered the United States with the intention to live
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. cdrep
"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.

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"An immigrant is a person who


removes into a country for the
purpose of permanent residence. As
shown infra 84, however, statutes
sometimes give a broader meaning
to the term immigrant.'" (3 CJS 674.)
As a resident alien in the U.S., Miguel owes
temporary and local allegiance to the U.S., the
country in which he resides (3 CJS 527). This is in
return for the protection given to him during the
period of his residence therein.
"Aliens residing in the United States,
while they are permitted to remain,
are in general entitled to the
protection of the laws with regard to
their rights of person and property
and to their civil and criminal
responsibility.
"In general, aliens residing in the
United States, while they are
permitted to remain, are entitled to
the
safeguards
of
the constitution with regard to their
rights of person and property and to
their civil and criminal responsibility.
Thus resident alien friends are
entitled to the benefit of the
provision
of
the
Fourteenth
Amendment
to
the
federal constitution that
no
state
shall deprive 'any person' of life,
liberty, or property without due
process of law, or deny to 'any
person' the equal protection of the
law, and the protection of this
amendment extends to the right to
earn a livelihood by following the
ordinary occupations of life. So an
alien is entitled to the protection of
the provision of the Fifth Amendment
to the federal constitution that no
person shall be deprived of life,
liberty, or property without due
process of law." (3 CJS 529-530.)
Section 18, Article XI of the 1987 Constitution which
provides that "any public officer or employee who
seeks to change his citizenship or acquire the status of
an immigrant of another country during his tenure shall
be dealt with by law" is not applicable to Merito Miguel
for he acquired the status of an immigrant of the
United States before he was elected to public office,
not "during his tenure" as mayor of Bolinao,
Pangasinan.
The law applicable to him is Section 68 of the Omnibus
Election Code (B.P. Blg. 881), which provides:
"xxx xxx xxx
"Any person who is a permanent
resident of or an immigrant to a
foreign country shall not be qualified
to run for any elective office under
this Code, unless such person has

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waived his status as permanent


resident or immigrant of a foreign
country in accordance with the
residence requirement provided for in
the election laws."cdrep
Did Miguel, by returning to the Philippines in November
1987 and presenting himself as a candidate for mayor
of Bolinao in the January 18, 1988 local elections,
waive his status as a permanent resident or immigrant
of the United States?
To be "qualified to run for elective office" in the
Philippines, the law requires that the candidate who is
a green card holder must have "waived his status as a
permanent resident or immigrant of a foreign country."
Therefore, his act of filing a certificate of candidacy for
elective office in the Philippines, did not of itself
constitute a waiver of his status as a permanent
resident or immigrant of the United States. The waiver
of his green card should be manifested by some act or
acts independent of and done prior to filing his
candidacy for elective office in this country. Without
such prior waiver, he was "disqualified to run for any
elective office" (Sec. 68, Omnibus Election Code). LLjur
Respondent Merito Miguel admits that he holds a green
card, which proves that he is a permanent resident or
immigrant of the United States, but the records of this
case are starkly bare of proof that he had waived his
status as such before he ran for election as municipal
mayor of Bolinao on January 18, 1988. We, therefore,
hold that he was disqualified to become a candidate for
that office.
The reason for Section 68 of the Omnibus Election
Code is not hard to find Residence in the municipality
where he intends to run for elective office for at least
one (1) year at the time of filing his certificate of
candidacy, is one of the qualifications that a candidate
for elective public office must possess (Sec. 42, Chap.
1, Title 2, Local Government Code). Miguel did not
possess that qualification because he was a permanent
resident of the United States and he resided in Bolinao
for a period of only three (3) months (not one year)
after his return to the Philippines in November 1987
and before he ran for mayor of that municipality on
January 18, 1988.
In banning from elective public office Philippine citizens
who are permanent residents or immigrants of a
foreign country, the Omnibus Election Code has laid
down a clear policy of excluding from the right to hold
elective public office those Philippine citizens who
possess dual loyalties and allegiance. The law has
reserved that privilege for its citizens who have cast
their lot with our country "without mental reservations
or purpose of evasion." The assumption is that those
who are resident aliens of a foreign country are
incapable of such entire devotion to the interest and
welfare of their homeland for with one eye on their
public duties here, they must keep another eye on their
duties under the laws of the foreign country of their
choice in order to preserve their status as permanent
residents thereof.

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

1. CITIZENSHIP;
NATURALIZATION;
ABSENCE DURING PERIOD INTERVENING BETWEEN
FILING OF APPLICATION AND HEARING AN
OBSTACLE TO PETITIONER'S NATURALIZATION.
Where
the
petitioner
left
the
Philippines
immediately after the filing of his petition for
naturalization and did not return until several
months after the first date set for the hearing
thereof, notwithstanding his explicit promise, under
oath, that he would reside continuously in the
Philippines "from the date of the filing of his
petition up to the time of his admission to
Philippine citizenship", he has not complied with
the
requirements
of
section
7
of
Commonwealth Act No. 473, and, consequently,
not entitled to a judgment in his favor.

DECISION

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CONCEPCION, J p:
This is an appeal taken by the Solicitor
General from a decision of the Court of First
Instance of Cebu, granting the application of
Wilfred Uytengsu, for naturalization as citizen of
the Philippines.
The main facts are not disputed. Petitionerappellee was born, of Chinese parents, in
Dumaguete, Negros Oriental on October 6, 1927.
He began his primary education at the Saint
Theresa's College in said municipality.
Subsequently, he attended the Little Flower of
Jesus Academy, then the San Carlos College and,
still later the Siliman University all in the same
locality where he completed the secondary
course. Early in 1946, he studied, for one semester,
in the Mapua Institute of Technology, in Manila.
Soon after, he went to the United States, where,
from 1947 to 1950, he was enrolled in the Leland
Stanford Junior University, in California, and was
graduated, in 1950, with the degree of Bachelor of
Science. In April of the same year he returned to
the Philippines for four (4) months vacation. Then,
to be exact, on July 15, 1950, his present
application for naturalization was filed. Forthwith,
he returned to the United States and took a
postgraduate course, in chemical engineering, in
another educational institution, in Fort Wayne,
Indiana. He finished this course in July 1951; but
did not return to the Philippines until October 13,
1951. Hence, the hearing of the case, originally
scheduled to take place on July 12, 1951, had to be
postponed on motion of counsel for the petitioner.
The only question for the determination in
this appeal is whether or not the application for
naturalization may be granted, notwithstanding the
fact that petitioner left the Philippines immediately
after the filing of his petition and did not return
until several months after the first date set for the
hearing thereof. The Court of First Instance of Cebu
decided this question in the affirmative and
accordingly rendered judgment for the petitioner.
The Solicitor General, who maintains the negative,
has appealed from said judgment.
Section 7 of Commonwealth Act No.
473 reads as follows:
"Any person desiring to
acquire Philippine citizenship shall
file with the competent court, a
petition in triplicate, accompanied by
two photographs of the petitioner,
setting forth his name and surname,
his present and former place of
residence; his occupation; the place
and date of his birth; whether single
or married and if the father of
children, the name, age, birthplace
and residence of the wife and of each
of the children; the approximate date
of his arrival in the Philippines, the
name of the port of debarkation, and
if he remembers it, the name of the

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ship on which he came; a declaration


that he has the qualifications
required by this Act, specifying the
same, and that he is not disqualified
for
naturalization
under
the
provisions of this Act; that he has
complied with the requirements of
section five of this Act, and that he
will reside continuously in the
Philippines from the date of the filing
of the petition up to the time of his
admission
to
Philippine
citizenship . . ." (Emphasis supplied.)
In conformity with this provision, petitioner
stated in paragraph 13 of his application:
". . . I will reside continuously
in the Philippines from the date of the
filing of my petition up to the time of
my
admission
to
Philippine
citizenship." (Record on Appeal, page
3.)
Petitioner contends, and the lower court held, that
the word "residence", as used in the aforesaid
provision of the Naturalization Law, is synonymous
with domicile, which, once acquired, is not lost by
physical absence, until another domicile is
obtained, and that, from 1946 to 1951, he
continued to be domiciled in, and hence a resident
of the Philippines, his purpose in staying in the
United States, at that time, being, merely to study
therein.
It should be noted that to become a citizen
of the Philippines by naturalization, one must
reside therein for not less than 10 years, except in
some special cases, in which 5 years of residence
is sufficient (sections 2 and 3, Commonwealth Act
No. 473). Pursuant to the provision above quoted,
he must, also, file an application stating therein,
among other things, that he "has the qualifications
required" by law. Inasmuch as these qualifications
include the residence requirement already referred
to, it follows that the applicant must prove that he
is a resident of the Philippines at the time, not only
of the filing of the application, but, also, of its
hearing. If the residence thus required is the actual
or constructive permanent home, otherwise known
as legal residence or domicile, then the applicant
must be domiciled in the Philippines on both dates.
Consequently, when section 7 of
Commonwealth Act No. 473 imposes upon the
applicant the duty to state in his sworn application
"that he will reside continuously in the Philippines"
in the intervening period, it can not refer merely to
the need of an uninterrupted domicile or legal
residence, irrespective of actual residence, for said
legal residence or domicile is obligatory under the
law, even in the absence of the requirement
contained in said clause, and, it is well settled that,
whenever possible, a legal provision must not be
so construed as to be a useless surplusage, and,
accordingly, meaningless, in the sense of adding
nothing to the law or having no effect whatsoever
thereon. This consequences may be avoided only

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by construing the clause in question as demanding


actual residence in the Philippines from the filing of
the petition for naturalization to its determination
by the court.
Indeed, although the words "residence"
and "domicile" are often used interchangeably,
each has, in strict legal parlance, a meaning
distinct and different from that of the other.
xxx xxx xxx
". . . There is a decided
preponderance of authority to the
effect that residence and domicile
are not synonymous in connection
with
citizenship,
jurisdiction,
limitations, school privileges, probate
and succession.
". . . the greater or less
degree of permanency contemplated
or intended furnishes a clue to the
sometimes
shadowy
distinction
between residence and domicile. To
be a resident one must be physically
present in that place of a longer or
shorter period of time. 'The essential
distinction between residence and
domicile is this: the first involves the
intent to leave when the purpose for
which he has taken up his abode
ceases; the other has no such intent,
the abiding is animo manendi. One
may seek a place for purposes of
pleasure, of business, or of health. If
his intent be to remain it becomes his
domicile; if his intent is to leave as
soon as his purpose is accomplished,
it is his residence. Perhaps the most
satisfactory definition is that one is a
resident of a place from which his
departure is indefinite as to time,
definite as to purpose; and for this
purpose he has made the place
his temporary home.
"For many legal purposes
there is a clear distinction between
'residence' and 'domicile.' A person
may hold an office or may have
business or employment or other
affair which requires him to reside at
a particular place. His intention is to
remain there while the office or
business or employment or other
concern continues; but he has no
purpose to remain beyond the time
the interest exists which determines
his place of abode. Domicile is
characterized
by
the animus
manendi. . . .
"Residence and domicile are
not
to
be
held
synonymous.
Residence is an act. Domicile is an
act coupled with an intent. A man
may have a residence in one state or

country and his domicile in another,


and he may be a nonresident of the
state of his domicile in the sense that
his place of actual residence is not
there. Hence thegreat weight of
authorities. rightly so, as we think
that a debtor, although his legal
domicile is in the state, may reside
or remain out of it for so long a time
and under such circumstances as to
acquire so to speak, an actual
nonresidence within the meaning of
the attachment statute."
"Domicile is a much broader
term than residence. A man may
have his domicile in one state and
actually reside in another, or in a
foreign country. If he has once had a
residence in a particular place and
removed to another, but with the
intention of returning after a certain
time, however long that may be, his
domicile is at the former residence
and his residence at the place of his
temporary habitation. Residence and
habitation are generally regarded as
synonymous. A resident and an
inhabitant mean the same thing. A
person resident is defined to be one
'dwelling and having his abode in any
place,' 'an inhabitant,' 'one that
resides in a place.'
The question of domicile is not
involved in determining whether a
person is a resident of a state or
country. The compatibility of domicile
in one state with actual residence in
another has been asserted and acted
upon in the law of attachment by the
Courts of New York, New Jersey,
Maryland, North Carolina, Mississippi
and Wisconsin.
"Residence
indicates
permanency of occupation, distinct
from
lodging
or boarding,
or
temporary occupation. It does not
include as much as domicile, which
requires intention combined with
residence.' . . . 'one may seek a place
for purposes of pleasure, of business,
or of health. If his intent be to
remain, it becomes his domicile; if
his intent be to leave as soon as his
purpose is accomplished, it is his
residence.'
"The derivation of the two
words 'residence' and 'domicile' fairly
illustrates the distinction in their
meaning. A home (domus) is
something more than a temporary
place
of
remaining
(residendi)

6 of 27

Page

however
continue.

long

such

stay

may

'While, generally speaking,


domicile and residence mean one
and the same thing, residence
combined with intention to remain,
constitutes
domicile
while
an
established abode, fixed permanently
for a time [!] for business or other
purposes, constitutes a residence,
though there may be an intent,
existing all the while, to return to the
true domicile.'
"There
is
a
difference
between domicile and residence.
'Residence' is used to indicate the
place of abode, whether permanent
or temporary' 'domicile' denotes a
fixed permanent residence to which,
when absent, one has the intention
of returning. A man may have a
residence in one place and a domicile
in another.' 'Residence is not
domicile, but domicile is residence
coupled with intention to remain for
an unlimited time. A man can have
but one domicile for one and the
same purpose at any time, but he
may have numerous places of
residence. His place of residence
generally is his place of domicile, but
is not by any means necessarily so,
since no length of residence without
intention of remaining will constitute
domicile." (Kennan on Residence and
Domicile, pp. 26, 31-35)
Such distinction was, in effect, applied by
this Court in the case of Domingo Dy, alias William
Dy Chinco vs. Republic of the Philippines (92 Phil.,
278). The applicant in that case was born in Naga,
Camarines Sur, on May 19, 1915. "At the age of
seven or eight, or in the year 1923, he went to
China, with his mother to study, and while he used
to go back and forth from China to the Philippines
during school vacations, he did not come back to
live permanently here until the year 1937." He
applied for naturalization in 1949. The question
arose whether, having been domiciled in the
Philippines for over 30 years, he could be
naturalized as a citizen of the Philippines, without a
previous declaration of intention, in view of section
6 of Commonwealth Act No. 473 (as amended by
Commonwealth Act No. 535), exempting from such
requirement "those who have resided in the
Philippines continuously for a period of thirty years
or more, before filing their application." This Court
decided the question in the negative, upon the
ground that "actual and substantial residence
within the Philippines, not legal residence", or
"domicile," along, is essential to the enjoyment of
the benefits of said exemption.
If said actual and substantial residence
not merely legal residence is necessary to

7 of 27

dispense with the filing of a declaration of


intention, it is even more necessary during the
period intervening from the filing of the petition for
naturalization to the date of the hearing thereof. In
this connection, it should be remembered that,
upon the filing of said petition, the clerk of court is
ordained by law to publish it with a notice of the
date of the hearing, which, pursuant to section 7 of
Act No. 2927, shall not be less than 60 days from
the date of the last publication. This period was
extended to two (2) months, by section 7 of
Commonwealth Act No. 473, and then to six (6)
months, by Republic Act No. 530. The purpose of
said period, particularly the extensions thereof
like the requirement of making a declaration of
intention at least one (1) year prior to the filing of
the application is not difficult to determine. It is
nothing but to give the government sufficient time
to check the truth of the statements made in said
declaration of intention, if any, and in the
application for naturalization, especially the
allegations therein relative to the possession of the
qualifications and none of the disqualifications
provided by law. Although data pertinent to said
qualifications and disqualifications could generally
to be obtained from persons familiar with the
applicant, it is be expected that the information
thus secured would consist, mainly, of conclusions
and opinions of said individuals. Indeed, what else
can they be expected to say on whether the
applicant has a good moral character; or whether
he believes in the principles underlying our
Constitution; or whether his conduct has been
proper and irreproachable; or whether he is
suffering from mental alienation or incurable
contagious diseases, or has not mingled socially
with the Filipinos? Obviously, the Government
would be in a better position to draw its own
conclusions on these matters if its officers could
personally observe the behaviour of the applicant
and confer with him if necessary.
In the case at bar, the Government has not
had any chance whatsoever to thus keep a
watchful eye on petitioner herein. Immediately
after the filing of his application and
notwithstanding the explicit promise therein made
him, under oath, to the effect that he would reside
continuously in the Philippines "from the date of
the filing of his petition up to the time of his
admission to Philippine citizenship" he returned
to the United States, where he stayed,
continuously, until October 13, 1951. For this first
time, on July 12, 1951, his counsel had to move for
opportunity needed by the Government to observe
petitioner herein was enhanced by the fact that,
having been born in the Philippines, where he
finished his primary and secondary education,
petitioner his not have to file, and did not file, a
declaration of intention prior to the filing of his
petition for naturalization. Thus, the Government
had no previous notice of his intention to apply for
naturalization until the filing of his petition and
could not make the requisite investigation prior
thereto.

Page

8 of 27

Moreover, considering that petitioner had


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

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

In short, we are of the opinion that


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

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:

G.R. No. 119976 September 18, 1995


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

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

[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

Page

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

9 of 27

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.

Page

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 reregistered 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

10 of 27

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

Page

her certificate of candidacy for the


office of the President in 1992, she
claimed to be a resident of San Juan,
Metro Manila. As a matter of fact on
August 24, 1994, respondent wrote a
letter with the election officer of San
Juan, Metro Manila requesting for the
cancellation of her registration in the
permanent list of voters that she may
be re-registered or transferred to
Barangay Olot, Tolosa, Leyte. These
facts manifest that she could not have
been a resident of Tacloban City since
childhood up to the time she filed her
certificate of candidacy because she
became a resident of many places,
including Metro Manila. This debunks
her claim that prior to her residence in
Tolosa, Leyte, she was a resident of the
First Legislative District of Leyte since
childhood.
In this case, respondent's conduct
reveals her lack of intention to make
Tacloban her domicile. She registered
as a voter in different places and on
several occasions declared that she
was a resident of Manila. Although she
spent her school days in Tacloban, she
is considered to have abandoned such
place when she chose to stay and
reside in other different places. In the
case of Romualdez vs. RTC(226 SCRA
408) the Court explained how one
acquires a new domicile by choice.
There must concur: (1) residence or
bodily presence in the new locality; (2)
intention to remain there; and (3)
intention to abandon the old domicile.
In other words there must basically
be animus manendi with animus non
revertendi. When respondent chose to
stay in Ilocos and later on in Manila,
coupled with her intention to stay there
by registering as a voter there and
expressly declaring that she is a
resident of that place, she is deemed to
have abandoned Tacloban City, where
she spent her childhood and school
days, as her place of domicile.
Pure intention to reside in that place is
not sufficient, there must likewise be
conduct indicative of such intention.
Respondent's statements to the effect
that she has always intended to return
to Tacloban, without the accompanying
conduct to prove that intention, is not
conclusive of her choice of residence.
Respondent has not presented any
evidence to show that her conduct, one
year prior the election, showed
intention to reside in Tacloban. Worse,
what was evident was that prior to her

11 of 27

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

Page

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

12 of 27

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

Page

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

13 of 27

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

Page

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. InLarena vs. Teves, 33 supra,
we stressed:
[T]his court is of the opinion and so
holds that a person who has his own

14 of 27

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,
explained that:

34

We

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

Page

What is undeniable, however, are the following set of


facts which establish the fact of petitioner's domicile,
which we lift verbatim from the COMELEC's Second
Division's assailed Resolution: 36
In or about 1938 when respondent was
a little over 8 years old, she
established her domicile in Tacloban,
Leyte (Tacloban City). She studied in
the Holy Infant Academy in Tacloban
from 1938 to 1949 when she graduated
from high school. She pursued her
college studies in St. Paul's College,
now Divine Word University in
Tacloban, where she earned her degree
in Education. Thereafter, she taught in
the Leyte Chinese School, still in
Tacloban City. In 1952 she went to
Manila to work with her cousin, the late
speaker Daniel Z. Romualdez in his
office in the House of Representatives.
In 1954, she married ex-President
Ferdinand E. Marcos when he was still a
congressman of Ilocos Norte and
registered there as a voter. When her
husband was elected Senator of the
Republic in 1959, she and her husband
lived together in San Juan, Rizal where
she registered as a voter. In 1965,
when her husband was elected
President of the Republic of the
Philippines, she lived with him in
Malacanang Palace and registered as a
voter in San Miguel, Manila.
[I]n February 1986 (she claimed that)
she and her family were abducted and
kidnapped to Honolulu, Hawaii. In
November 1991, she came home to
Manila. In 1992, respondent ran for
election as President of the Philippines
and filed her Certificate of Candidacy
wherein she indicated that she is a
resident and registered voter of San
Juan, Metro Manila.
Applying the principles discussed to the facts found by
COMELEC, what is inescapable is that petitioner held
various residences for different purposes during the
last four decades. None of these purposes
unequivocally point to an intention to abandon her
domicile of origin in Tacloban, Leyte. Moreover, while
petitioner was born in Manila, as a minor she naturally
followed the domicile of her parents. She grew up in
Tacloban, reached her adulthood there and eventually
established residence in different parts of the country
for various reasons. Even during her husband's
presidency, at the height of the Marcos Regime's
powers, petitioner kept her close ties to her domicile of
origin by establishing residences in Tacloban,
celebrating her birthdays and other important personal
milestones in her home province, instituting wellpublicized projects for the benefit of her province and
hometown, and establishing a political power base

15 of 27

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 wellpublicized 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

Page

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

16 of 27

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

Page

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
Arroyo 45 the Court held that:
Upon examination of the authorities, we are
convinced that it is not within the province of the
courts of this country to attempt to compel one of the
spouses to cohabit with, and render conjugal rights to,
the other. Of course where the property rights of one
of the pair are invaded, an action for restitution of
such rights can be maintained. But we are disinclined
to sanction the doctrine that an order, enforcible (sic)
by process of contempt, may be entered to compel
the restitution of the purely personal right of
consortium. At best such an order can be effective for
no other purpose than to compel the spouses to live
under the same roof; and he experience of those
countries where the courts of justice have assumed to
compel the cohabitation of married people shows that
the policy of the practice is extremely questionable.
Thus in England, formerly the Ecclesiastical Court
entertained suits for the restitution of conjugal rights
at the instance of either husband or wife; and if the
facts were found to warrant it, that court would make
a mandatory decree, enforceable by process of
contempt in case of disobedience, requiring the
delinquent party to live with the other and render
conjugal rights. Yet this practice was sometimes
criticized even by the judges who felt bound to
enforce such orders, and inWeldon 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

17 of 27

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

Page

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

18 of 27

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 noncompliance with them does not invalidate the
judgment on the theory that if the statute had intended
such result it would have clearly indicated it." 50 The
difference between a mandatory and a directory
provision is often made on grounds of necessity.
Adopting the same view held by several American
authorities, this court in Marcelino vs. Cruz held that: 51
The difference between a mandatory
and directory provision is often
determined on grounds of expediency,
the reason being that less injury results
to the general public by disregarding
than enforcing the letter of the law.
In Trapp v. Mc Cormick, a case calling
for the interpretation of a statute
containing a limitation of thirty (30)
days within which a decree may be
entered without the consent of counsel,
it was held that "the statutory
provisions which may be thus departed
from with impunity, without affecting
the validity of statutory proceedings,
are usually those which relate to the
mode or time of doing that which is
essential to effect the aim and purpose
of the Legislature or some incident of
the essential act." Thus, in said case,
the statute under examination was
construed merely to be directory.
The mischief in petitioner's contending that the
COMELEC should have abstained from rendering a
decision after the period stated in the Omnibus
Election Code because it lacked jurisdiction, lies in the
fact that our courts and other quasi-judicial bodies
would then refuse to render judgments merely on the
ground of having failed to reach a decision within a
given or prescribed period.
In any event, with the enactment of Sections 6 and 7 of
R.A. 6646 in relation to Section 78 of B.P. 881, 52 it is
evident that the respondent Commission does not lose
jurisdiction to hear and decide a pending
disqualification case under Section 78 of B.P. 881 even
after the elections.
As to the House of Representatives Electoral Tribunal's
supposed assumption of jurisdiction over the issue of
petitioner's qualifications after the May 8, 1995
elections, suffice it to say that HRET's jurisdiction as
the sole judge of all contests relating to the elections,
returns and qualifications of members of Congress

Page

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.

leave when the


accomplished.****

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.

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.

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.

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


MELECIO
CLARINIO
UJANO, petitioner-appellant, vs. REP
UBLIC
OF
THE
PHILIPPINES, oppositor-appellee.

1. NATURALIZATION; REACQUISITION OF PHILIPPINE


CITIZENSHIP; RESIDENCE REQUIREMENT. 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].
2. ID.; ID.; ID; TERM "RESIDENCE" CONSTRUED. The
term "residence" 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;
50 Off. Gaz., 4781). 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 hae
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

purpose

of

his

19 of 27

coming

is

Petitioner seeks to reacquire his Philippine citizenship


in a petition filed before the Court of First Instance of
Ilocos Sur.

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; 50 Off. Gaz., 4781). 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 of
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

Page

naturalization." The word "residence" used therein


imports not only an intention to reside in a fixed place
but also personal presence coupled with conduct
indicative of such intention (Yen vs. Republic, L-18885,
January 31, 1964; Nuval vs. Guray, 52 Phil., 645).
Indeed, that term cannot refer to the presence in this
country of a person who has been admitted only on the
strength of a permit for temporary residence. In other
words, the term residence used in said Act should have
the
same
connotation
as
that
used
in
Commonwealth Act No. 473, the Revised Naturalization
Law, even if in approving the law permitting the
reacquisition of Philippine citizenship our Congress has
liberalized
its
requirement
by
foregoing
the
qualifications and special disqualifications prescribed
therein. The only way by which petitioner can reacquire
his lost Philippine citizenship is by securing a quota for
permanent residence so that he may come within the
purview
of
the
residence
requirement
of
Commonwealth Act No. 63.
WHEREFORE, the decision appealed from is affirmed.
No costs.
Bengzon, Concepcion, J.B.L. Reyes, Barrera, Regala, J.P.
Bengzon, Zaldivar and Sanchez, JJ., concur.

Supreme Court of Pennsylvania


Dorrances Estate
No. 41
309 Pa. 151; 163 A. 303; 1932 Pa. LEXIS 678

DATES: May 23, 1932, Argued


September 26, 1932
PRIOR HISTORY: [***1] Appeal, No. 41, Jan. T., 1932,
by Commonwealth of Pennsylvania, from decree of O.C.
Delaware Co., March T., 1931, No. 120, setting aside
appraisement for transfer inheritance tax purposes, in
estate of John T. Dorrance, deceased. Reversed.
Appeal from tax appraisement. Before HANNUM, P.J.
The opinion of the Supreme Court states the facts.
Exceptions to appraisement by the executors
dismissed. Appeal by the Commonwealth of
Pennsylvania.
Error assigned, inter alia, was decree, dismissing
exceptions, quoting it.
DISPOSITION: The decree of the court below is
reversed and the appraisement, subject to
modifications indicated by the Commonwealths
stipulation as to the value of the estate, is reinstated;
the costs to be paid by appellees.

20 of 27

COUNSEL: Wm. A. Schnader, Attorney General, with


him Francis T. Anderson, Wm. A. Gray and Herman J.
Goldberg, Deputy Attorney General, for appellant. -The sole question in this case is whether, after 1911,
Dr. Dorrance again became domiciled in Pennsylvania,
and whether at the time of his death, he was domiciled
here. These questions must be decided under the law
of Pennsylvania.
Domicile is the place at which a man has fixed his real
family home and [***2] principal establishment for an
indefinite time and not for a merely temporary
purpose: Frys Election, 71 Pa. 302; Careys App., 75
Pa. 201; Hindmans App., 85 Pa. 466; Price v. Price, 156
Pa. 617; Lowrys Est., 6 Pa. Superior Ct. 143; Raymond
v. Leishman, 243 Pa. 64; Winsors Est., 264 Pa.
552; Blessings Est., 267 Pa. 380; Barclays Est., 259
Pa. 401.
The term domicil is derived from the Latin word
meaning home, and the fundamental significance of
home may be said to have fixed the fundamental
meaning of domicile.
To acquire a domicile of choice, there must concur: (1)
Physical presence in the place where the domicile is
alleged to have been acquired; (2) Intent to make that
place the home of the party. A domicile acquired by the
concurrence of these two factors continues until a new
one is acquired: Mitchell v. United States, 21 Wallace
350.
Declarations are decisive in determining domicile only
if the declarant has two or more real family homes
occupied at different seasons of the year: Winsor's Est.,
264 Pa. 552; Graham v. Dempsey, 169 Pa. 460.
A domicile of choice once acquired cannot be lost by
declarations alone: Dalrymples Est., 215 Pa. 367; May
v. May, 94 Pa. [***3] Superior Ct. 293.
An existing domicile is presumed to continue until a
new one is shown to have been adopted, facto et
animo, and, where a change is alleged, the burden of
proving it rests upon whoever makes the allegation:
Careys App., 75 Pa. 201; Ennis v. Smith, 14 Howard
400; Mitchell v. U.S., 21 Wallace 350.
The burden of proving a change of domicile rests upon
him who asserts it; but the burden shifts when it has
been shown that the real family home has been
moved: Price v. Price, 156 Pa. 617; Raymond v.
Leishman, 243 Pa. 64; Williamson v. Osenton, 232 U.S.
619.
Robert von Moschzisker, with him John B. Hannum, Jr.,
of Hannum, Hunter, Hannum & Hodge, Schofield
Andrews and Ellis Ames Ballard, of Ballard, Spahr,
Andrews & Ingersoll, for appellee. -- An established
domicile is presumed to continue until its
abandonment is proved.
The burden of proving the abandonment of an
established domicile and the acquisition of a new one
is upon the person asserting the change: Price v. Price,

Page

156 Pa. 617, 626; Barclays Est., 259 Pa. 401.


A new domicile can be acquired only by physical
presence at a new residence plus intent to make that
new residence the principal home; but an
established [***4] domicile can be retained without
physical presence or residence, until it be proved that a
new domicile has been acquired: Price v. Price, 156 Pa.
617; Barclays Est., 259 Pa. 401; Lowrys Est., 6 Pa.
Superior Ct. 143; Matter of Martin, 173 N.Y. App. Div. 1;
Hindmans App., 85 Pa. 466; Dalrymples Est., 215 Pa.
367.
A person is free to choose his domicile effectively
provided the requisites of domicile exist in relation to
the place of his choice. His choice of a new domicile
will not be effective unless and until he establishes,
through physical presence in the new locality, a
residence with intent to make it his principal home. His
choice to keep an established domicile will be effective,
without physical presence or residence in that locality,
up to the time, if ever, that he is proved to have
abandoned it: Barclays Est., 259 Pa. 401; Lowry's Est.,
6 Pa. Superior Ct. 143.
An intention to stay at a given place indefinitely may
fix that place, as one's domicile, but this depends upon
other attending circumstances, which are absent in this
case.
JUDGES: Before FRAZER, C.J., SIMPSON, KEPHART,
SCHAFFER, MAXEY, DREW and LINN, JJ.

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


A. L. VELILLA, administrator of
the estate of Arthur Graydon
Moody, plaintiff-appellant, vs. JUAN
POSADAS,
JR.,
Collector
of
Internal
Revenue,defendantappellee.

SYLLABUS
1. INHERITANCE
TAX;
DOMICILE
OF
TAXPAYER. To effect the abandonment of one's
domicile, there must be a deliberate and provable
choice of a new domicile, coupled with actual
residence in the place chosen, with a declared or
provable intent that it should be one's fixed and
permanent place of abode, one's home. There is a
complete dearth of evidence in the record that M
ever established a new domicile in a foreign
country.
2. INHERITANCE AND INCOME TAXES. As
M's legal domicile at the time of his death was the
Philippine Islands and his estate had its situs here,
the inheritance and income taxes here involved
were lawfully collected.
BUTTE, J p:

21 of 27

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:
"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,

Page

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."
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

22 of 27

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:
"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 . . . ."
The substance of the plaintiff's cause of
action is stated in paragraph 7 of his complaint as
follows:
"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."
Section 1536 of the Revised Administrative
Code (as amended) provides as follows:
"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:"
xxx xxx xxx
It is alleged in the complaint that at the
time of his death, Arthur G. Moody was a "nonresident 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?

Page

The Solicitor-General raises a preliminary


objection to the consideration of any evidence that
Moody's domicile was elsewhere than in Manila at
the time of his death based on the proposition that
as no such objection was made before the Collector
of Internal Revenue as one of the grounds of the
protest against the payment of the tax, this
objection cannot be considered in a suit against the
Collector to recover the taxes paid under protest.
He relies upon the decision in the case of W. C.
Tucker vs. A. C. Alexander, Collector (15 Fed. [2],
356). We call attention, however, to the fact that
this decision was reversed in 275 U. S., 232; 72
Law. ed., 256, and the case remanded for trial on
the merits on the ground that the requirement that
the action shall be based upon the same grounds,
and only such, as were presented in the protest
had been waived by the collector. In the case
before us no copy of the taxpayer's protest is
included in the record and we have no means of
knowing its contents. We think, therefore, the
preliminary objection made on behalf of the
appellee does not lie.
We proceed, therefore, to the consideration
of the question on the merits as to whether Arthur
G. Moody was legally domiciled in the Philippine
Islands on the day of his death. Moody was never
married and there is no doubt that he had his legal
domicile in the Philippine Islands from 1902 or
1903 forward during which time he accumulated a
fortune from his business in the Philippine Islands.
He lived in the Elks' Club in Manila for many years
and was living there up to the date he left Manila
the latter part of February, 1928, under the
following circumstances: He was afflicted with
leprosy in an advanced stage and had been
informed by Dr. Wade that he would be reported to
the Philippine authorities for confinement in the
Culion Leper Colony as required by the law.
Distressed at the thought of being thus segregated
and in violation of his promise to Dr. Wade that he
would voluntarily go to Culion, he surreptitiously
left the Islands the latter part of February, 1928,
under cover of night, on a freighter, without ticket,
passport or tax clearance certificate. The record
does not show where Moody was during the
remainder of the year 1928. He lived with a friend
in Paris, France, during the months of March and
April of the year 1929 where he was receiving
treatment for leprosy at the Pasteur Institute. The
record does not show where Moody was in the
interval between April, 1929, and November 26,
1930, on which latter date he wrote a letter, Exhibit
B, to Harry Wendt of Manila, offering to sell him his
interest in the Camera Supply Company, a
Philippine corporation, in which Moody owned 599
out of 603 shares. In this letter, among other
things, he states: "Certainly I'll never return there
to live or enter business again." In this same letter
he says:
"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

23 of 27

supplies . . . before I go to the necessary


investments in placing any side lines. I concluded
to get your definite reply to this . . . I have given
our New York buying agent a conditional order not
to be executed until March and this will give you
plenty of time . . . anything that kills a business is
to have it peddled around as being for sale and this
is what I wish to avoid." He wrote letters dated
December 12, 1930, and January 3, 1931, along
the same line to Wendt. As Moody died of leprosy
less than two months after these letters were
written, there can be no doubt that he would have
been immediately segregated in the Culion Leper
Colony had he returned to the Philippine Islands.
He was, therefore, a fugitive, not from justice, but
from confinement in the Culion Leper Colony in
accordance with the law of the Philippine Islands.
There is no statement of Moody, oral or
written, in the record that he had adopted a new
domicile while he was absent from Manila. Though
he was physically present for some months in
Calcutta prior to the date of his death there, the
appellant does not claim that Moody had a
domicile there although it was precisely from
Calcutta that he wrote and cabled that he wished
to sell his business in Manila and that he had no
intention to live there again. Much less plausible, it
seems to us, is the claim that he established a
legal domicile in Paris in February, 1929. The
record contains no writing whatever of Moody from
Paris. There is no evidence as to where in Paris he
had any fixed abode that he intended to be his
permanent home. There is no evidence that he
acquired any property in Paris or engaged in any
settled business on his own account there. There is
no evidence of any affirmative factors that prove
the establishment of a legal domicile there. The
negative evidence that he told Cooley that he did
not intend to return to Manila does not prove that
he had established a domicile in Paris. His short
stay of three months in Paris is entirely consistent
with the view that he was a transient in Paris for
the purpose of receiving treatments at the Pasteur
Institute. The evidence in the record indicates
clearly that Moody's continued absence from his
legal domicile in the Philippines was due to and
reasonably accounted for by the same motive that
caused his surreptitious departure, namely, to
evade confinement in the Culion Leper Colony; for
he doubtless knew that on his return he would be
immediately confined, because his affliction
became graver while he was absent than it was on
the day of his precipitous departure and he could
not conceal himself in the Philippines where he was
well known, as he might do in foreign parts.
Our Civil Code (art. 40) defines the
domicile of natural persons as "the place of their
usual residence". The record before us leaves no
doubt in our minds that the "usual residence" of
this unfortunate man, whom appellant describes as
a "fugitive" and "outcast", was in Manila where he
had lived and toiled for more than a quarter of a
century, rather than in any foreign country he
visited during his wanderings up to the date of his

Page

death in Calcutta. To effect the abandonment of


one's domicile, there must be a deliberate and
provable choice of a new domicile, coupled with
actual residence in the place chosen, with a
declared or provable intent that it should be one's
fixed and permanent place of abode, one's home.
There is a complete dearth of evidence in the
record that Moody ever established a new domicile
in a foreign country.
The contention under the appellant's third
assignment of error that the defendant collector
illegally assessed an income tax of P13,001.41
against the Moody estate is, in our opinion,
untenable. The grounds for this assessment, stated
by the Collector of Internal Revenue in his letter,
Exhibit NN, appear to us to be sound. That the
amount of P259,986.69 was received by the estate
of Moody as dividends declared out of surplus by
the Camera Supply Company is clearly established
by the evidence. The appellant contends that this
assessment involves triple taxation: First, because
the corporation paid income tax on the same
amount during the years it was accumulated as
surplus; second, that an inheritance tax on the
same amount was assessed against the estate, and
third, the same amount is assessed as income of
the estate. As to the first, it appears from the
collector's assessment, Exhibit II, that the collector
allowed the estate a deduction of the normal
income tax on said amount because it had already
been paid at the source by the Camera Supply
Company. The only income tax assessed against
the estate was the additional tax or surtax that had
not been paid by the Camera Supply Company for
which the estate, having actually received the
income, is clearly liable. As to the second alleged
double taxation, it is clear that the inheritance tax
and the additional income tax in question are
entirely distinct. They are assessed under different
statutes and we are not convinced by the
appellant's argument that the estate which
received these dividends should not be held liable
for the payment of the income tax thereon because
the operation was simply the conversion of the
surplus of the corporation into the property of the
individual stockholders. (Cf. U. S. vs. Phellis, 257 U.
S., 171, and Taft vs. Bowers, 278 U. S., 460.)
Section 4 of Act No. 2833 as amended, which is
relied on by the appellant, plainly provides that the
income from exempt property shall be included as
income subject to tax.
Finding no merit in any of the assignments
of error of the appellant, we affirm the judgment of
the trial court, first, because the property in the
estate of Arthur G. Moody at the time of his death
was located and had its situs within the Philippine
Islands and, second, because his legal domicile up
to the time of his death was within the Philippine
Islands. Costs against the appellant.
Malcolm, Villa-Real, and Imperial,
JJ., concur.

24 of 27

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

SYLLABUS
1. CONSTITUTIONAL LAW; RESIDENCE AND DOMICILE.
A person is deemed a resident of a place in a
country or state where he has his abode and lives there
permanently. It is a place chosen by him freely and
voluntarily, although he may later on change his mind
and live elsewhere. A place in a country or state where
he lives and stays permanently and to which he
intends to return after a temporary absence, no matter
how long, is his domicile.
2. ADOPTION; PROHIBITION AGAINST ALIEN TO ADOPT;
CASE AT BAR. Petitioner, an American citizen, lives in
Clark Filed, municipality of Angeles, province of
Pampanga, Republic of the Philippines, because of his
assignment as staff sergeant in the United States Air
Force. Held: Petitioner's stay in the Philippines being
temporary, he is a non-resident alien who, pursuant to
clause 4 of Article 335 of the Civil Code, is disqualified
to adopt a child in the Philippines.
In a verified petition filed on 26 September 1958 in the
Court of First Instance of Pampanga, Ricardo R.
Caraballo, an American citizen enlisted in the United
States Air Force as staff sergeant detailed in Clark
Field, Angeles, Pampanga, where he and his wife
Graciela G. Caraballo live, alleges that he and his wife
have no legitimate, legitimated, acknowledged natural
children, natural children by legal fiction or any other
descendant; that with his wife's written consent
(Exhibit C) he desires to adopt as his child Norma Lee
Caber, a five- day old natural daughter of Mercedes J.
Caber begotten by an unknown father, who gave her
consent to the adoption in a sworn statement (Exhibit
B); that since the day following her birth Norma Lee
Caber has been reared and cared for by him and his
wife who have developed love and affection for her;
that he never has been convicted of any crime
involving moral turpitude; that financially and morally
he is able to support, bring child for all intents and
purposes, free from any obligation of obedience and
maintenance with respect to her natural mother
Mercedes J. Caber (Sp. proc. No. 1391).
On 26 September 1958 the Court ordered the verified
petition filed by Ricardo R. Caraballo to be published
and was published in the Daily Mirror once a week for
three consecutive weeks setting the petition for
hearing on 18 October 1958. (Exhibit A). As at the
hearing nobody appeared to object to the petition for
adoption, petitioner's counsel prayed for an order of
default, which was entered against all interested
parties, except the Solicitor General or Provincial Fiscal
who, according to the Court, must appear in adoption
cases.

Page

On 27 October 1958 the Provincial and Assistant


Provincial Fiscal of Pampanga moved for the dismissal
of the petition for adoption on the ground that it states
no cause of action and that the petitioner, being a nonresident alien, is not qualified to adopt.
On 28 October 1958 the Court granted the petitioner
ten days within which to file an answer to the motion to
dismiss and submit a memorandum of authorities, and
the fiscal the same number of days to reply.
On 3 November 1958 the petitioner filed an answer or
objection to the motion to dismiss, to which on 14
November the Provincial Fiscal replied.
On 17 November 1958 the Court denied the motion to
dismiss.
On 12 December 1958 the petitioner moved that the
case be set for hearing. On 15 December 1958 the
Court set the petition for hearing on 22 December
1958 at 9:00 o'clock in the morning.
After hearing, the Court found the following:
. . . Petitioner is 32 years old
while the child sought to be
adopted is three months old,
having been born on
September 20, 1958 (Exhibit
E). The petitioner has been
residing at Clark Air Base for
the last 25 months. He has had
the child, Norma Lee Caber, in
his household as a daughter
since the day following that of
her birth and has developed a
fondness for her and intends to
bring her up and educate her
as his own to the best of his
ability. He has never had any
children, either with his wife,
Graciela G. Caraballo, with
whom he has been married for
12 years, or with any other
woman.
He is a staff sergeant in the United
States Air Force and receives
approximately $465.00 a month,
including allowances. He expects to
retire as a master sergeant after 6
years and 3 months, and as such, he
would receive a monthly pension of
about $175.00 to $190.00 for the rest
of his life. He has an allotment check
made out to a bank for $84.00 a
month. He has two insurance policies
with
an
aggregate
value
of
P15,000.00 and has a savings of
$6,000.00 to $7,000.00 which he has
been accumulating for the last 15 to
20 years. After retirement, he intends
to settle down permanently in the
Philippines where he will engage in
the tourist business by putting up a
hotel.

25 of 27

It also appears that petitioner has


never been convicted of any crime
whatsoever and rendered a decree as
follows:
PREMISES CONSIDERED, the court
believes that it would be to the best
interests of the child to be placed
under the care and custody of
petitioner who is materially and
morally able to educate and bring her
up properly and adequately, and,
therefore, adjudges that henceforth
Norma Lee Caber shall be, for all
legal intents and purposes, the child
of Ricardo B. Caraballo and shall be
freed from all legal obligations of
obedience and maintenance with
respect to her natural mother,
Mercedes Caber, and that her
surname shall be changed to that of
petitioner, and pursuant to Article
346 of the Civil Code of the
Philippines, this decision shall be
recorded in the local civil registry of
Angeles, Pampanga, and the name
and surname of the said minor shall
thereafter be Norma Lee Caraballo.
xxx xxx xxx
The point to determine is whether under the law the
petitioner is a person qualified to adopt. The
Government contends that he is not, invoking the
provisions of article 335 of the Civil Code. The article
provides:
The following Cannot adopt
(1) Those who have legitimate,
legitimated, acknowledged natural
children, or natural children by legal
fiction;
(2) The guardian, with respect to the
ward, before the final approval of his
accounts;
(3) A married person, without the
consent of the other spouse;
(4) Non-resident aliens;
(5) Resident
aliens
with
whose
government the Republic of the
Philippines has broken diplomatic
relations;
(6) Any person who has been
convicted of a crime involving moral
turpitude, when the penalty imposed
was six months' imprisonment or
more.
A person is deemed a resident of a place in a country
or state where he has his abode and lives there
permanently. It is a place chosen by him freely and
voluntarily, although he may later on change his mind
and live elsewhere. A place in a country or state where

Page

he lives and stays permanently and to which he


intends to return after a temporary absence, no matter
how long, is his domicile. A sojourner such as a tourist
though actually present at a place of his free choice
cannot be deemed a resident of that place. A foreigner
who has a business or interest therein or property
located in a country or state and goes and stays in that
country or state to look after his business or property
or to check up the manner or way his business or
property is being conducted or run by his manager but
does not intend to remain in the country indefinitely
cannot be deemed a resident of such country. Actual or
physical presence or stay of a person in a place, not of
his free and voluntary choice and without intent to
remain there indefinitely, does not make him a resident
of the place. Looking after the welfare of a minor to be
adopted the law has surrounded him with safeguards
to achieve and insure such welfare. It cannot be
gainsaid that an adopted minor may be removed from
the country by the adopter, who is not a resident of the
Philippines, and placed beyond the reach and
protection of the country of his birth.
Ricardo R. Caraballo, the petitioner, an American
citizen who now lives in Clark Field, municipality of
Angeles, province of Pampanga, Republic of the
Philippines, because of his assignment as staff
sergeant in the United States Air Force his stay in
the Philippines then being temporary is a nonresident alien who, pursuant to clause 4 of the above
quoted article of the Civil Code, is disqualified to adopt
a child in the Philippines.
The decree appealed from is set aside and the petition
dismissed, without pronouncement as to costs.
[G.R. No. 35980. February 20, 1932.]
GO CHEN and GO LEK, petitionersappellees, vs. THE COLLECTOR OF
CUSTOMS OF CEBU, respondentappellant.

1. ALIENS; IMMIGRATION. A Chinese


woman entering these Islands not on her own right
but by virtue of the right of her second husband,
has no right to bring in her minor children by the
first husband, who never had a legal residence in
this country. A Chinese wife enters by virtue of her
husband's right; her children come in by virtue of
their father's right.
VILLA-REAL, J p:
This appeal was taken by the collector of
customs for Cebu against the judgment of the
Court of First Instance of that province, granting
the writ of habeas corpus applied for by Go Chen
and Go Lek, and ordering that they be set at liberty
and permitted to remain in the Philippine Islands.
I support of his appeal the appellant
assigns the following alleged errors as committed
by the court below:

26 of 27

"1. The trial court erred in


holding that the right of a minor to
enter or remain in the Philippine
Islands is not a consequence of the
exercise of patria potestad.
"2. The trial court erred in
issuing the writ of habeas corpus
applied for by the petitioners."
The following facts were established by a
preponderance of evidence:
The petitioners and appellees, Go Chen
and Go Lek, are minor children of Go Tuan and Tan
Bon. Go Tuan died in China eleven years ago. Two
years later, Tan Bon his widow, married another
Chinaman, and shortly thereafter came to the
Philippine Islands with her second husband, where
she was admitted as the wife of a Chinese
merchant, and where she has been residing for the
past eight years. The petitioners remained in China
under a paternal uncle, together with their three
brothers and one sister. Tan Bon is at present
engaged in the furniture business in Cebu. Being a
resident merchant, she ordered her two sons, the
petitioners herein, to join her in these Islands. On
October 20, 1930, the petitioners and appellees,
Go Lek and Go Chen, then aged 20 and 18,
respectively, arrived in the Philippines on board the
S. S. Susana II, and took up their abode with their
mother, Tan Bon at her home in Cebu, Cebu. A
month later, Go Lek left his mother's home and
went to Talisayan, Misamis Province, at the
invitation of a friend of his named Go Tian Ho,
whom he had been helping in his store in that
municipality. The petitioners and appellees are
both single and have another brother, also single
21 years of age, named Go Soon, who is living in
Cebu with his mother.
Now, then, a Chinese widow who never
resided in the Philippine Islands during her first
marriage, is admitted and acquires a residence as
the wife of a Chinese merchant, her second
husband. Is she entitled to bring in her minor
children by the first marriage?
In In re Chung Toy Ho (42 Fed., 398, 299),
the Circuit Court of Oregon, United States, given
the following reason for the right of a Chinese
resident's wife and children, to enter without a
residence certificate:
"It is impossible to believe
that parties to this treaty, which
permits the servants of a merchant
to enter the country with him, ever
contemplated the exclusion of his
wife and children. And the reason
why
they
are
not
expressly
mentioned, as entitled to such
admission, is found in the fact that
the domicile of the wife and children
is that of the husband and father,
and that the concession to the
merchant of the right to enter the
United States, and dwell therein at
pleasure, fairly construed, does

Page

include his wife and minor children;


particularly when it is remembered
that such concession is accompanied
with a declaration to the effect that,
in such entry and sojourn in the
country, he shall be entitled to all the
rights and privileges of a subject of
Great Britain or a citizen of France."
In United States vs. Gue Lim (176 U. S.,
459, 468), the United States Supreme Court gives
the same reason as follows:
"In the case of the minor
children, the same result must follow
as in that of the wife. All the reasons
which favor the construction of the
statute as exempting the wife from
the
necessity
of
procuring
a
certificate apply with equal force to
the case of minor children of a
member or members of the admitted
classes. They come in by reason of
their relationship to the father, and
whether they accompany or follow
him, a certificate is not necessary in
either case. When the fact is
established to the satisfaction of the
authorities, that the person claiming
to enter, either as wife or minor child,
is in fact the wife or minor child of
one of the members of a class
mentioned in the treaty as entitled to
enter, then that person is entitled to
admission without the certificate."
Therefore the ground of the wife's right of
entry into the territory of the United States and
hence, into the Philippine Islands, is the principle of
Private International Law and of Civil Law, that a
man's domicile is also the domicile of his wife and
minor children, and that he is in duty bound to
protect, support, and keep them in his company. A
Chinaman's Chinese wife and her minor children,
then, do not enter the Philippine Islands through
their own right, but by virtue of the right of the
husband and father, unless the Chinese wife
belongs to the privileged class.
The Chinese woman Tan Bon, who seeks to
bring in her minor children, the petitioners herein,
did not enter through her own but through that of
her second husband. If the wife's right to enter is
derived from her husband's, and the right of the
minor children from that of their father, then the
petitioners and appellees, not being children of
their mother's second husband, are not entitled to
enter. The mere fact of their being children of Tan
Bon confers on them no right of entry, inasmuch as
she herself did not enter of her own right, and they
cannot base their right on hers.
Counsel argue that as she is now a resident
merchant, she is entitled to bring in her minor
children. The mere fact that she became a
merchant after coming into these Islands, gives her
no right to remain, following this court's ruling in
the cases of Juan Co vs. Rafferty (14 Phil., 235);

27 of 27

United States vs. Yu Wa (28 Phil., 1); United States


vs. Sia Lam Han (29 Phil., 159); United
States vs. So Hao Ka (31 Phil., 649). She has the
latter right by virtue of being the wife of a Chinese
merchant who came into the country in that
capacity.
As the Chinese woman aforesaid, Tan Bon,
did not enter the Philippine Islands by her own
right, but by virtue of her second husband's right,
she is not entitled to bring in her minor children by
another Chinaman who never had a legal residence
in the Archipelago.
Wherefore we are of opinion and so hold,
that a Chinese woman entering these Islands, not
on her own right but by virtue of the right of her
second husband, a Chinaman, has no right to bring
in her minor children by the first husband, who
never had a legal residence in this country.
By virtue whereof, the judgment appealed
from is reversed, and the writ of habeas corpus
denied, with costs against the appellees. So
ordered.
Johnson, Street, Malcolm, Villamor,
Ostrand, Romualdez and Imperial, JJ., concur.
||| (Go Chen v. Collector of Customs of Cebu, G.R. No.
35980, [February 20, 1932], 56 PHIL 550-554)