1. The Jurisdictional Act of September 6, 1916, repealed the
provision of the Philippine Autonomy Act giving this Court
jurisdiction to review by writ of error the final judgments of the
Supreme Court of the Philippine Islands in cases involving the
Constitution, or any statute, treaty, title, or privilege of the
United States or where the value in controversy exceeds $25,000,
and substituted a review of such judgments by certiorari. P.
271 U. S.
529.
2. The questions whether a member of the Philippine Senate
appointed by the Governor General under the Autonomy Act could be
suspended by the elected members, and whether, if their action were
invalid, the Supreme Court of the Islands, in this suit against
Page 271 U. S. 529
those members, had jurisdiction to require them, by mandamus or
injunction, to readmit him as an active member became moot in this
case, owing to the expiration of the period of suspension, and no
other question being involved save the incidental one of the
petitioner's right to recover unpaid salary during the period of
suspension, and that being an issue concerning which the present
petition fails to furnish sufficient information to enable the
court, in any event, to afford a remedy, and one, furthermore,
which would properly be tried in a separate proceeding against some
executive officer or officers charged with the ministerial duty of
paying such salary, the cause as a whole must be treated as moot,
and, following the established practice of this Court, the judgment
below, dismissing the petition for want of jurisdiction is vacated,
and the cause remanded with directions to dismiss the petition,
without costs. P.
271 U. S.
532.
Certiorari to a judgment of the Supreme Court of the Philippines
dismissing, for want of jurisdiction, an original proceeding, for
injunction and mandamus brought by an appointed member of the
Senate of the Islands, against its twenty-two elected members,
including its President, and its Secretary, its Sergeant at Arms,
and its Paymaster, in which the petitioner challenged the validity
of a resolution of the Senate suspending him from the prerogatives,
privileges, and emoluments of his office during one year from
January 1st, 1924, and sought to have it set aside and recognition
of his rights as Senator enforced. The judgment below was entered
on September 22, 1924.
MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
*
This cause was brought here by certiorari under § 5 of the Act
of September 6, 1916, to amend Judicial Code,
Page 271 U. S. 530
c. 448, 39 Stat. 726. That Act repealed § 248 of the Judicial
Code, reenacted by § 27 of the so-called Philippine Autonomy Act,
c. 416, 39 Stat. 545, 555, which gave jurisdiction to this Court to
examine by writ of error the final judgments and decrees of the
Supreme Court of the Islands in all cases in which the Constitution
or any statute, treaty, title, or privilege of the United States
was involved, or in causes in which the value in controversy
exceeded $25,000, and a review of such judgments by writ of
certiorari was substituted. The certiorari here was granted because
a statute of the United States, to-wit, the Autonomy Act, was
involved.
This proceeding was an original action in the Supreme Court of
the Philippines, brought by Jose Alejandrino, a Senator appointed
by the Governor General, seeking a mandamus and an injunction
against the 22 elected members of the Senate, including its
president, its secretary, its sergeant at arms, and its paymaster.
The occasion for the proceeding was a resolution of the Senate,
passed February 5, 1924, and reading as follows:
"Resolved, that the Honorable Jose Alejandrino, Senator from the
Twelfth district, be, and he is hereby, declared guilty of
disorderly conduct and flagrant violation of the privileges of the
Senate for having treacherously assaulted the Honorable Vicente de
Vera, Senator for the Sixth district, on the occasion of certain
phrases being uttered by the latter in the course of the debate
regarding the credentials of said Mr. Alejandrino;"
"Resolved, further, that the Honorable Jose Alejandrino be, as
he is hereby, deprived of all of his prerogatives, privileges and
emoluments as such Senator during one year from the first of
January, nineteen hundred and twenty-four;"
"And resolved, lastly, that the said Honorable Jose Alejandrino,
being a Senator appointed by the Governor General of these Islands,
a copy of this resolution be furnished said Governor General for
his information. "
Page 271 U. S. 531
The petitioner charged that this resolution was unconstitutional
and of no effect, and asked a preliminary injunction against the
respondents enjoining them from executing the resolution, a
judicial declaration that it was null and void, and a final order
of mandamus against the respondent ordering them to recognize the
rights of the petitioner and his office as Senator, and all of his
prerogatives, privileges and emoluments, and prohibiting them from
carrying the order of suspension into effect. The respondents made
a special appearance through the Attorney General and objected on
demurrer to the court's jurisdiction. The court held that it was
without jurisdiction, sustained the demurrer, and, as it did not
appear that the petition could be amended so as to state a cause of
action, it was dismissed without costs.
Jose Alejandrino was appointed under the Philippine Autonomy Act
by the Governor General as Senator to represent the Twelfth
district, a district composed of non-Christian tribes in the
northern part of Luzon and the Moros in the Department of Mindanao
and Sulu. At the time he took his seat in the Senate, another
Senator, Vicente de Vera, made a speech on the credentials of
Senator Alejandrino in which he said some things which Alejandrino
resented. At night, and after the session of the Senate concluded,
and away from the Senate chamber, Alejandrino assaulted de Vera
because of his remarks made in the Senate. The resolution
complained of was because of this assault.
By § 12 of the Autonomy Act, the general legislative powers in
the Philippines, with certain exceptions, are vested in a
legislature consisting of two Houses, the Senate and the House of
Representatives. The Senate is composed of 24 members from 12
Senate districts; 22 of them are elected, and one, the Twelfth
district, already referred to, has 2 Senators,
Page 271 U. S. 532
appointed by the Governor General. By § 17, a Senator appointed
by the Governor General holds office until removed by the Governor
General. Section 18 provides that the Senate and House respectively
shall be the sole judges of the elections, returns, and
qualifications of their elective members, and each house may
determine the rules of its proceedings, punish its members for
disorderly behavior, and, with the concurrence of two-thirds, expel
an elective member. The Senators and Representatives shall receive
an annual compensation for their services to be ascertained by law
and paid out of the treasury of the Philippine Islands. Senators
and Representatives shall in all cases except treason, felony, and
breach of the peace, be privileged from arrest during their
attendance at the session of their respective houses and in going
to and returning from the same, and for any speech or debate in
either house they shall not be questioned in any other place.
It is argued that, as the only power of expulsion given to the
Senate is in respect of its elected members, no power is conferred
on the Senate to expel a member appointed by the Governor General.
It is further argued that the power to suspend is only a less power
than the power to expel, and of the same character, and therefore
that the Senate had no power to suspend an appointed Senator, and
therefore that the Senate exceeded its authority in attempting to
do so in this resolution, and its action was null.
We do not think that we can consider this question, for the
reason that the period of suspension fixed in the resolution has
expired, and, so far as we are advised, Alejandrino is now
exercising his functions as a member of the Senate. It is therefore
in this Court a moot question whether or not he could be suspended
in the way in which he was. Equally so is the still more important
question whether the Supreme Court of the Philippines
Page 271 U. S. 533
had any jurisdiction by extraordinary writ of mandamus or
injunction to require the Senate, a part of the Island Legislature,
and a separate branch of the government, to rescind its resolution
and to readmit Alejandrino to the Senate as an active member.
It may be suggested as an objection to our vacating the action
of the court below and directing the dismissal of the petition as
having become a moot case that, while the lapse of time has made
unnecessary and futile a writ of mandamus to restore Senator
Alejandrino to the Island Senate, there still remains a right on
his part to the recovery of his emoluments, which were withheld
during his suspension, and that we ought to retain the case for the
purpose of determining whether he may not have a mandamus for this
purpose. We are not advised from his petition what the emoluments
of his office during that period would be, except his salary. We
infer from the averment of his petition that, as the suspension was
in part retroactive, he was not paid what was due him during the
month of January, 1924. It is difficult for the court to deal with
this feature of the case, which is really only a mere incident to
the main question made in the petition and considered in the able
and extended brief of counsel for the petitioner and the only brief
before us. That brief is not in any part of it directed to the
subject of emoluments, nor does it refer us to any statute or to
the rules of the Senate by which the method of paying Senators'
salaries is provided, or in a definite way describe the duties of
the officer or officers or committee charged with the ministerial
function of paying them. The petition, in describing the
defendants, avers that certain of them, being Senators, "are
besides members of the committee on accounts of the Senate who
approve the payment of the emoluments that Senators are entitled to
receive." Section 7 of the petition is as follows:
"That the defendants, in the respective capacities in which they
are sued, attempt to comply with, execute and
Page 271 U. S. 534
carry into effect, or to cause to be complied with, executed,
and carried into effect, the suspension of the plaintiff, depriving
him, during the period of one year, of the exercise of his office
and of all of his prerogatives, privileges, and emoluments as
Senator, as said defendant Senators and their president do not
recognize the plaintiff's right to exercise such office and prevent
him from exercising same, and cause all the officers, employees and
other subordinates of the Senate not to recognize the plaintiff as
Senator and to prevent him from exercising his office and enjoying
his prerogatives, privileges and emoluments, and the president of
the Senate, moreover, gives the necessary orders for the carrying
into effect of said order of suspension, and the other defendants
Faustino Aguilar and Bernabe Bustamente execute and comply with the
orders and restrictions of the Senate and its president in order
that the plaintiff may not be recognized as Senator and may not
exercise his prerogatives and privileges as such Senator in the
Senate building and the defendant Francisco Dayaw, official
paymaster of the Senate requires him to refund his emoluments
received corresponding to the period that has already elapsed from
January 1st of this year and refuses to pay the emoluments to which
the plaintiff is entitled."
We must assume, in view of the injunction of Congress in the
Autonomy Act, that Senators shall receive an annual compensation to
be fixed by law, that there is some official or board charged with
the executive and ministerial duty of paying the senatorial
salaries against whom a Senator entitled might procure a mandamus
to compel payment. But the averments of the petition do not set out
with sufficient clearness who that official or set for officials
may be. Were that set out, the remedy of the Senator would seem to
be by mandamus to compel such official, in the discharge of his
ministerial duty, to pay him the salary due, and the presence of
the Senate
Page 271 U. S. 535
as a party would be unnecessary. Should that official rely upon
the resolution of the Senate as a reason for refusing to comply
with his duty to pay Senators, the validity of such a defense and
the validity of the resolution might become a judicial question
affecting the personal right of the complaining Senator properly to
be disposed of in such action, but not requiring the presence of
the Senate as a party for its adjudication. The right of the
petitioner to his salary does not, therefore, involve the very
serious issue raised in this petition as to the power of the
Philippine Supreme Court to compel by mandamus one of the two
legislative bodies constituting the legislative branch of the
government to rescind a resolution adopted by it in asserted lawful
discipline of one of its members for disorder and breach of
privilege. We think, now that the main question as to the validity
of the suspension has become moot, the incidental issue as to the
remedy which the suspended Senator may have in recovery of his
emoluments, if illegally withheld, should properly be tried in a
separate proceeding against an executive officer or officers as
described. As we are not able to derive from the petition
sufficient information upon which properly to afford such a remedy,
we must treat the whole cause as moot, and act accordingly. This
action on our part, of course, is without prejudice to a suit by
Senator Alejandrino against the proper executive officer or
committee by way of mandamus or otherwise to obtain payment of the
salary which may have been unlawfully withheld from him.
The case having become moot as respects its main features, and
the other feature being incidental and not, in itself, a proper
subject for determination as now presented, further steps looking
to an adjudication of the cause can neither be had here nor in the
court below. In this situation, we must, following the established
practice of this Court, vacate the judgment below and remand
Page 271 U. S. 536
the cause with directions to dismiss the petition without costs
to either party.
Public Utility Commissioners v. Compania
General de Tabacos de Filipinas, 249 U.
S. 425;
Brownlow v. Schwartz, 261 U.
S. 216, and cases cited.
Judgment vacated, with directions to dismiss petition,
without costs to either party.
* The opinion was announced by MR. JUSTICE HOLMES, the CHIEF
JUSTICE being absent.