The section of reversion, literally copied above, will have its desired effect fully, in the case under consultation (unless permission is given to reconstitute the private institution in regard to the ruling of the writ of 1611), with entire independence of the academical institutions of the state. The disagreement [disyuntiva] would be between this and the reversion of the properties. Therefore, it is sufficient to call to mind the succinct but faithful review which has been made of the cardinal fundamentals of the foundation, in order to have proved that the reorganization of education, which the ministry of the colonies, laying aside all consideration of the community [i.e., of the Dominicans], might order, would wound and destroy in an essential manner, the will of the founders. If that should happen, the province of Santísimo Rosario and the Dominican religious of the province, would not only have the right to recover the properties, and give them the pious application assigned by the section, but also would not have the power to refrain from it, and consent that such properties remain applied to the needs of the teaching institution reorganized by the government. The patrons of a charitable fund, or any other permanent foundation, can never convert the authority of such contrary to the observance and purity of the institution confided to their care. The acts of the patrons, contrary to the foundation, possess the vice of nullity.
The lawyers undersigned have no exact and minute information of the vicissitudes which the college-university has experienced from 1611 to the present day. Comparing alone the royal decree of October 29, 1875, which reorganized the instruction of the said college with the writ of its primitive foundation, it appears that some rulings of the former are at variance with the latter: for example, article 3, which declares that the orders, plans, programs, and regulations, which emanate from the ministry and in that case from the governor-general, are obligatory for the organization and rule of education; article 6, and the following ones which allowed entrance to secular professors and defined their emoluments and fees; article 11, which reserved to the ministry the power of fixing the fees of matriculation, degrees, titles, and certificates; and article 13, which obliged the rector to render an annual account to the royal vice-patron of the emoluments and expenses of the university, the order supplying the deficit resulting. But we are not consulting as to the greater or less legal stability of the present condition of the institution or if we were treating of it, it would not be within our province to disavow that in other things of great importance, the government still respected the fundamentals of the foundation, and that the concessions which were made in 1875 in exchange for obtaining by entreaty the abolition of the decrees of November 6, 1870,[1] appeared practically corroborated by the lasting agreement of the patrons and of those summoned to obtain the properties by virtue of the clause of reversion, although in strict rigor of law the document of the foundation ought to take precedence over any act and any submission of its natural guardians.
For the concrete matter of our opinion, we have only to declare that we do not believe that the former more or less extreme mildness of the patrons in the presence of the interference, which rejected the foundation, weakens the actions of the patronage of the college and of the ecclesiastical province favored by the clause of reversion in order to demand the observance of the foundation, if, perchance, the ministry of the colonies, exercising powers which indubitably belong to it, reorganize the instruction of the university without considering the religious community of the Dominicans. Even in the hypothesis of considering as illegal the tolerances or concessions of former times, the foundation, pure and simple, is the criterion and only norm with which the dispute can be adjusted.
The second point of the conference offers no difficulty in whatever concerns the existence of a legal means for opposing a resolution of a government contrary to the native autonomy of the college. Leaving aside the attributes of the ministry to direct the services of education as it deems most suitable, whenever they are sustained by the public funds, the opposition, if it limit itself to the use of the properties and funds from private origin, which today endow the institution, would have a legal mean beyond any doubt, to demand the strict observance of the law of foundation.
What would this mean be, or which of the two possible means appears more efficacious? Would it be by bringing the complaint before the court of contencioso-administrativo[2] or before the ordinary justice?
The law of September 13, 1888, applicable to Filipinas, according to article 4 of its transitory rulings, marks the bound of the jurisdiction of the court of contencioso-administrativo. Perhaps the generic notes of article 1 of the said law would be found in a manner suited to the resolution of the ministry. That article would occasion a report [estado]. In what concerns the application of the properties and the incomes of the institution, it would emanate from powers subject to rule, and not discretional, and would wound a preëxisting right of a certain administrative character. For, besides the original royal permission and that of the protectorate general in regard to the foundations, the public administration has intervened, intertwining the public service of the instruction of that university with the private foundation. But article 4 of the law excepts the questions of a civil nature, and of the competency of the ordinary jurisdiction, the questions in which the right violated may be of a civil character, and also those which emanate from acts in which the administration has taken part as a legal person, or as one subject to rights and obligations. Of a character essentially civil would be the right violated by the hypothetical ministerial decision of which we are treating, reducing to accidental mixtures the ancient connections of the college founded by private persons, with the administration, which was advantageous to the opportunities which the college offered for the service of education. In strict terms one might add that the government, although it would perform judicial acts as a public power, in determining the future system of education, in exchange ought to be considered as a legal person, in so far as it should attempt to obtain by entreaty from the patrons of the college, the aid of the properties and incomes of the legal person incarnate in them. But the notoriously civil character of the laws which are involved in the observance of the foundation of 1611 are sufficient so that we might consider as definitive that the courts of justice would be those summoned to impose on the government respect for the will of the institutors, the owners of the properties with which the college is endowed.
But not because we do so understand it (as without vacillation we do understand it), can we advise that the contencioso-administrativo demand be left out of the claim. Action must be begun in its proper time and manner before the special court, with the intention that on that court rejecting the demand, as outside its peculiar jurisdiction, it would leave out of all doubt the jurisdiction of the common court. In this manner, it is probable that the attempt would be made to take advantage of the ambiguity, and maintain that the result of the deliberation had been consented to because of the lack of the other appeal, confusing with episodical and accidental discussions the controversy over the substantial and fundamental matter. The preliminary attempt of contencioso-administrativo appeal causes no disgrace to civil actions which have a longer life.
In conclusion then, the undersigned believe:
1. That, although the ministry of the colonies can alter at its discretion the system of public education in Manila, it has no right to apply the funds and properties of a private origin, today assigned to the college-university of Santo Tomás, to the establishment which it organizes, without considering the religious corporation of the Dominicans, or by infringing in any other manner on the foundation of the said college. Consequently, it cannot make any similar reorganization in that college.
2. That, if a ministerial decision shall be dictated contrary to the sacred and inviolable law of the foundation of the college, the most efficacious legal means to oppose the violation of the same and obtain its observance by entreaty would be to bring an ordinary civil suit before the courts of common law, but in order to free the road of the difficulties of this suit it would be advisable to try previously the contencioso-administrativo appeal, in the time and manner assigned by the law of September 13, 1888.