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Author Archives: Jhez

About Jhez

Government Procurement Reform Advocate (GPRA), Philippine Government Electronic Procurement System (PhilGEPS) Certified National Trainer, Earthquake Quick Response Program (EQRP) Volunteer, Civil/Structural Engineer, Information and Communication Technology (ICT) Enthusiast, Musician, Poet/Writer, Journalist, Adviser/Counsel, Family Man and Friend.

Response to Kat: Pointers for the Bar Exam

I noticed that my blog had been silent for more than 3 months now. I have been busy back to work since December 2017, and had been (re)answering the 2017 Bar Exam since then. Two months before the release of the bar exam results, I was “interviewed” by my law school classmate who is now a candidate for graduation this June 2018. Having passed by our chat, I decided to post our Q&A. May the reader find this post as source of useful pointers in taking the #Bar2018 [Note: The Q&A is edited/modified to fit this blog-type post.]

 

KAT: First of all, congrats in finishing the bar. That alone takes a huge amount of endurance, and for that, I congratulate you! :’)

ME: Thank you!

KAT: Second, habang fresh pa sayo ang mga bagay-bagay, nais kong humingi ng mga words of advice or tips like:

Ano ang mga bagay na na-realize mo na dapat mong ginawa pero hindi mo nagawa?

ME: Most of the things I planned were accomplished naman, except for that run on the syllabus. Original plan ko kasi ay gagawan ko ng reviewer each and every subject based on syllabus. But since August 2017 na ako nag-start ng review proper ko (take not I did not resign or totally left work), I realized na I will be losing material time just doing such reviewer than focusing on what statistically may come out. So I abandoned the plan, and instead read as many Arellano Bar Review Program (ABRP) materials I’ve collected since 2012 as a premium for being consistently and actively participating in the Bar Operations.

I realized na, if only I have completed that self-made reviewer, maybe I could have better answered some questions. But take note abandoning it is not a bad idea after all. I just feel I could have answered better.

KAT: Mistakes you did or ung mga pagkukulang, if any? Or
Yung mga tamang ginawa mo na tingin mo hindi nagawa ng iba, if any? Hehe

I am not sure if it’s a mistake when I slightly changed my answering style a few months before the bar exam. Napansin ko kasi, if I will maintain my style, parang pare-parehas na mababasa ng examiner na phrasing (like kung susundan mo yung answering style na 3-paragraph rule). I have to admit I am aiming for the top. Without any professional guidance, I tried to trim down my answer into 2-paragraph super direct to the point “answer-reason then basis” approach. Maybe some portions of the correct answer could have been lost somewhere. But nonetheless, I passed. So baka naman hindi mistake.   

I believe I did my best in answering all the questions. That should be every examinee’s objective. Never leave a question unanswered, and always have a spare time to review your work. In my case, I made sure that I am done answering before the 3rd bell (i.e. 30 minutes before time’s up) so I still have at least 25 minutes (I submit my booklet after the 4th bell, i.e. 5 minutes before time’s up with the exception of Legal Ethics where I submitted 45 minutes before time kasi I am excited to go out before the sun sets). That way, I can review my work for any spelling, grammar, or punctuation. To my surprise, I was able to discover (this was during the first Sunday) that I skipped answering some sub-questions. I was able naman to insert my answers because, fortunately, my answers were (extremely) short and I use 1 page in answering even sub-questions.

KAT: Third, sa dami ng binasa mo, ano sa tingin mo ung best material/s (pnka marami kang nahugot sa pagsagot sa bar) and worst (na dapat ndi na basahin ng isang barrista) for each bar subject?

ME: Honestly, I have not read any reference book in the entire review (I tried to borrow some books, but I never had the chance to read it). In our case (Bar 2017), there is no single best material that you can use to survive the exam.  You really have to rely on the years of preparation you have in law school. In my case, I relied mostly on ABRP materials including our very own Pre-Week materials. My observation is that all other review materials are practically the same. They just differ in the presentation and emphasis on certain topics. But they are just like any other review material.

Take note I did not enroll in any other Bar Review simultaneous with the ABRP. To me, simultaneous schooling is not good at all because you will hear different approaches and answers to the same question, which later on may affect you while answering the bar exam. Just choose one set of materials that you are comfortable with. Stick with it, and just be able to identify which part is “poisonous” LoL. 

KAT: Best material (to read) and worst material (to avoid)
Poli-
Labor-
Civil law-
Tax-
Com-
Crim-
Remedial law-
Ethics-

ME: Following my answer above, I do not recommend any best or worst material for any subject. Given enough value and appreciation, our very own ABRP materials are good enough. You will later discover that some of Arellano barristers are reading “Blue Notes”, “Red Notes”, UP Notes, etc. But you will also be amazed to see some Ateneo, San Beda, and UP barristers reading Arellano Last Minute Tips (LMTs) LoL. Just choose which materials are most comfortable for you to use.

Bar materials and LMTs by itself will not, by itself, save you. They are just intended as reminders to what you should have known already way back law school days.

However, there are some notable exceptions to this like in the case of Political Law and Civil Law. AUSL is known to have very good predictions on Political Law (average 50%) and it was maintained.

Labor Law is likewise fair enough. Using Atty. Chan’s pre-week notes is more than enough arsenal.

In the case of Civil Law, there are a lot of basic ObliCon questions and our very own Atty. Rabuya discussed many of the questions which were lifted from the J.Bersamin cases.

Taxation law is again a killer (to me). I cannot give advice on this. But if you have read enough recent tax cases, it will be less painful.

Commercial law is also a pain in the a**. A handful of questions were lifted from the Financial Rehabilitation and Insolvency Act (FRIA). But the questions were basic, so I suggest reading the law (note, it is lengthy) and at least understanding the terms, just in case a “boomerang” happens in your bar exam.

Criminal Law is also complained as a killer subject, but I disagree. The questions are basic. The problem is its presentation. You will get confused by the manner the questions are presented. But I believe the questions are phrased that way to see if the examinee can discern the issue and use only material facts to arrive at a conclusion applying the law. The exceptional term “doli incapax” can be answered if you are familiar with latin root words “dolus” (dolo).  But never mind.

Remedial law is just a walk in the park (Jurassic park LoL) if you have been under Atty. Brondial’s class. If you have not, I suggest you get a copy of Atty. Brondial’s latest syllabus and start reading the cases there. It will be a smooth ride after finishing it.

Legal Ethics questions were mostly recycled questions in the past bar exams. Be prepared on legal forms because it may drain your time in preparing one if you have not practiced doing it. 

 

KAT: Your response will be much appreciated hehe.. thank you!

P.S. sa free time mo po gawin. I am willing to wait.

ME: I don’t want you to wait. Start early and feel relieved early. I hope, though, that I have not increased your stress levels by promptly replying to your queries.

Good luck!

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Chua, et al. v. United Coconut Planters Bank, et al., G.R. No. 215999, 16 August 2017

Third Division

[BERSAMIN, J.]

FACTS: It is undisputed that petitioners Spouses Chua and LGCTI as well as respondents Jose Go, had existing loan obligations with UCPB prior to the March 1997 JVA. As an offshoot of the JVA, two deeds of trust were executed by the parties involving petitioners’ 44-hectare property covered by 32 titles. The deeds of trust were neither expressly cancelled not rescinded despite the fact that the project under the JVA never came to fruition. On March 21, 2000, UCPB and petitioners entered into the MOA consolidating the outstanding obligations of the Spouses Chua and LGCTI.

Petitioners exchanged their 30 parcels of land to effectively reduce their total unpaid obligations to only P68,000,000.00. To settle the balance, they agreed to convert it into equity in LGCTI in case they would default in their payment. To implement the MOA, they signed the REM drafted by UCPB, which included the properties listed in the MOA as security for the credit accommodation of P404,597,177.04. Unknown to them, however, Jose Go, acting in behalf of Revere, likewise executed another REM covering the properties that Revere was holding in trust for them. When UCPB foreclosed the mortgages, it applied about P75.09 million out of the P227,700,000.00 proceeds of the foreclosure sale to the obligations of Revere and Jose Go. Moreover, UCPB pursued petitioners for their supposed deficiency amounting to P68,000,000.00, which was meanwhile assigned to respondent Asset Pool A by UCPB.

 

ISSUE#1: Did the REM subsist even after the foreclosure sale of the subject properties?

HELD#1: NO.

A review of the MOA dated March 21, 2000 would reveal that petitioners’ outstanding obligation referred to, after deducting the amount of the thirty properties, was reduced to only P68,000,000.00. To settle this balance, petitioners agreed to convert this into equity in LGCTI in case they defaulted in their payment. In this case, what prompted the foreclosure sale of the mortgaged properties was petitioners’ failure to pay their obligations. When the proceeds of the foreclosure sale were applied to their outstanding obligations, the payment of the balance of the P68,000,000.00 was deliberately left out, and the proceeds were conveniently applied to settle P75,000,000.00 of Revere and/or Jose Go’s unpaid obligations with UCPB. This application was in blatant contravention of the agreement that Revere’s or Jose Go’s obligations would be paid only if there were excess in the application of the foreclosure proceeds. Accordingly, the CA should have applied the proceeds to the entire outstanding obligations of petitioners, and only the excess, if any, should have been applied to pay off Revere and/or Jose Go’s obligations.

ISSUE#2: Was the deed of assignment covering the deficiency in petitioner’s obligations to UPCB valid?

HELD#2: NO.

Based on the foregoing, therefore, we conclude that the deed of assignment of liabilities covering the deficiency in its obligation to UCPB in the amount of P68,000,000.00 was null and void. According to the apportionment of bid price executed by UCPB ‘s account officer, the bidamounting to P227,700,000.00 far exceeded the indebtedness of the Spouses Chua and LGCTI in the amount of P204,597,177.04, which was inclusive of the P68,000,000.00 subject of the deed of assignment of liabilities as well as the P32,703,893,450.00 corresponding to the interests and penalties that UCPB waived in favor of petitioners.

It can be further concluded that UCPB could not have validly assigned to Asset Pool A any right or interest in the P68,000,000.00 balance because the proper application of the proceeds of the foreclosure sale would have necessarily resulted in the full extinguishment of petitioners’ entire obligation. Otherwise, unjust enrichment would ensue at the expense of petitioners. There is unjust enrichment when a person unjustly retains a benefit to the loss of another, or when a person retains money or property of another against the fundamental principles of justice, equity and good conscience. The principle of unjust enrichment requires the concurrence of two conditions, namely: (1) that a person is benefited without a valid basis or justification; and (2) that such benefit is derived at the expense of another. The main objective of the principle against unjust enrichment is to prevent a person from enriching himself at the expense of another without just cause or consideration. This principle against unjust enrichment would be infringed if we were to uphold the decision of the CA despite its having no basis in law and in equity.

 
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Posted by on January 27, 2018 in Case Digests, Civil Law

 

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Re: Non-disclosure Before the Judicial and Bar Council of the Administrative Case Filed Against Judge Jaime V. Quitain, in His Capacity as the then Asst. Regional Director of the National Police Commission, Regional Office XI, Davao City. JBC No. 013, 22 August 2007

En Banc

[PER CURIAM]

FACTS: Judge Jaime Vega Quitain was appointed Presiding Judge of the Regional Trial Court (RTC), Branch 10, Davao City. Subsequent thereto, the Office of the Court Administrator (OCA) received confidential information that administrative and criminal charges were filed against Judge Quitain in his capacity as then Assistant Regional Director, National Police Commission (NAPOLCOM), Regional Office 11, Davao City, as a result of which he was dismissed from the service. This fact did not appear in his Personal Data Sheet (PDS) submitted with his application as judge. Quitain explained that he was not aware of his administrative dismissal in NAPOLCOM. However, there were newspaper articles that even featured his ouster and his subsequent appeal to clear his name. Thus, the OCA recommended that: (1) the instant administrative case against respondent be docketed as an administrative matter; and (2) that he be dismissed from the service with prejudice to his reappointment to any position in the government, including government-owned or controlled corporations, and with forfeiture of all retirement benefits except accrued leave credits. When the case reaches the Supreme Court, Quitain tendered his resignation which was accepted without prejudice to the decision of the administrative case.

 

ISSUE#1: Does the resignation of the judge renders the administrative proceedings against him moot and academic?

HELD#1: NO.

[T]he resignation of Judge Quitain which was accepted by the Court without prejudice does not render moot and academic the instant administrative case. The jurisdiction that the Court had at the time of the filing of the administrative complaint is not lost by the mere fact that the respondent judge by his resignation and its consequent acceptance – without prejudice – by this Court, has ceased to be in office during the pendency of this case. The Court retains its authority to pronounce the respondent official innocent or guilty of the charges against him. A contrary rule would be fraught with injustice and pregnant with dreadful and dangerous implications. Indeed, if innocent, the respondent official merits vindication of his name and integrity as he leaves the government which he has served well and faithfully; if guilty, he deserves to receive the corresponding censure and a penalty proper and imposable under the situation.

 

ISSUE#2: (Judicial Ethics) Can the judge be excused of his omission in the PDS?

HELD#2: NO.

We cannot overemphasize the need for honesty and integrity on the part of all those who are in the service of the Judiciary. We have often stressed that the conduct required of court personnel, from the presiding judge to the lowliest clerk of court, must always be beyond reproach and circumscribed with the heavy burden of responsibility as to let them be free from any suspicion that may taint the Judiciary. We condemn, and will never countenance any conduct, act or omission on the part of all those involved in the administration of justice, which would violate the norm of public accountability and diminish or even just tend to diminish the faith of the people in the Judiciary.

 

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Fabian v. Desierto, G.R. No. 129742, 16 September 1998

En Banc

[REGALADO, J.]

FACTS: Petitioner Teresita G. Fabian was the major stockholder and president of PROMAT Construction Development Corporation (PROMAT) which participated in the bidding for government construction projects including those under the First Manila Engineering District (FMED), and private respondent Nestor V. Agustin, incumbent District Engineer, reportedly taking advantage of his official position, inveigled petitioner into an amorous relationship. After misunderstandings and unpleasant incidents, Fabian eventually filed the aforementioned administrative case against Agustin in a letter-complaint. The  Graft Investigator of the Ombudsman issued a resolution finding private respondent guilty of grave misconduct and ordering his dismissal from the service with forfeiture of all benefits under the law. On a motion for reconsideration, Agustin was exonerated of the administrative charges.

In the present appeal, petitioner argues that Section 27 of Republic Act No. 6770 (Ombudsman Act of 1989) pertinently provides that —

In all administrative disciplinary cases, orders, directives or decisions of the Office of the Ombudsman may be appealed to the Supreme Court by filing a petition for certiorari within ten (10) days from receipt of the written notice of the order, directive or decision or denial of the motion for reconsideration in accordance with Rule 45 of the Rules of Court (Emphasis supplied)

 

ISSUE#1: Can the Court resolve the constitutionality of Section 27 of Republic Act No. 6770 not raised in the trial?

HELD#1: YES.

Constitutional questions, not raised in the regular and orderly procedure in the trial are ordinarily rejected unless the jurisdiction of the court below or that of the appellate court is involved in which case it may be raised at any time or on the court’s own motion.  The Court ex mero motu may take cognizance of lack of jurisdiction at any point in the case where that fact is developed. The court has a clearly recognized right to determine its own jurisdiction in any proceeding.

ISSUE#2: Is Section 27 of Republic Act No. 6770 unconstitutional?

HELD#2: YES.

Section 27 of Republic Act No. 6770 cannot validly authorize an appeal to this Court from decisions of the Office of the Ombudsman in administrative disciplinary cases. It consequently violates the proscription in Section 30, Article VI of the Constitution against a law which increases the appellate jurisdiction of this Court. No countervailing argument has been cogently presented to justify such disregard of the constitutional prohibition which, as correctly explained in First Lepanto Ceramics, Inc. vs. The Court of Appeals, et al.  was intended to give this Court a measure of control over cases placed under its appellate jurisdiction. Otherwise, the indiscriminate enactment of legislation enlarging its appellate jurisdiction would unnecessarily burden the Court.

As a consequence of our ratiocination that Section 27 of Republic Act No. 6770 should be struck down as unconstitutional, and in line with the regulatory philosophy adopted in appeals from quasi-judicial agencies in the 1997 Revised Rules of Civil Procedure, appeals from decisions of the Office of the Ombudsman in administrative disciplinary cases should be taken to the Court of Appeals under the provisions of Rule 43.

 
 

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Tañada and Macapagal v. Cuenco, et al., G.R. No. L-10520, February 28, 1957

En Banc

[CONCEPCION, J.]

FACTS:  Petitioners pray that a writ of preliminary injunction be immediately issued directed to respondents Mariano J. Cuenco, Francisco A. Delgado, Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes, restraining them from continuing to usurp, intrude into and/ or hold or exercise the said public offices respectively being occupied by them in the Senate Electoral Tribunal, and to respondent Fernando Hipolito restraining him from paying the salaries of respondent Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes, pending this action. Petitioners likewise prayed that judgment be rendered ousting respondents from the aforementioned public offices in the Senate Electoral Tribunal and that they be altogether excluded therefrom and making the preliminary injunction permanent.

Respondents have admitted the main allegations of fact in the petition, except insofar as it questions the legality, and validity of the election of respondents Senators Cuenco and Delgado, as members of the Senate Electoral Tribunal, and of the appointment of respondent Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes as technical assistants and private secretaries to said respondents Senators. Respondents, likewise, allege, by way of special and affirmative defenses, that: (a) this Court is without power, authority of jurisdiction to direct or control the action of the Senate in choosing the members of the Electoral Tribunal

ISSUE: Was the dispute regarding the election of Senators Cuenco and Delgado as members of the Senate Electoral Tribunal in the nature of a political question that will divest the Court of jurisdiction?

HELD: NO.

[T]he term “political question” connotes, in legal parlance, what it means in ordinary parlance, namely, a question of policy. In other words, in the language of Corpus Juris Secundum (supra), it refers to “those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the Government.” It is concerned with issues dependent upon the wisdom, not legality, of a particular measure.

Such is not the nature of the question for determination in the present case. Here, we are called upon to decide whether the election of Senators Cuenco and Delgado, by the Senate, as members of the Senate Electoral Tribunal, upon nomination by Senator Primicias-a member and spokesman of the party having the largest number of votes in the Senate-on behalf of its Committee on Rules, contravenes the constitutional mandate that said members of the Senate Electoral Tribunal shall be chosen “upon nomination .. of the party having the second largest number of votes” in the Senate, and hence, is null and void. This is not a political question. The Senate is not clothed with “full discretionary authority” in the choice of members of the Senate Electoral Tribunal. The exercise of its power thereon is subject to constitutional limitations which are claimed to be mandatory in nature. It is clearly within the legitimate prove of the judicial department to pass upon the validity the proceedings in connection therewith.

“.. whether an election of public officers has been in accordance with law is for the judiciary. Moreover, where the legislative department has by statute prescribed election procedure in a given situation, the judiciary may determine whether a particular election has been in conformity with such statute, and, particularly, whether such statute has been applied in a way to deny or transgress on the constitutional or statutory rights ..” (16 C.J.S., 439).

It is, therefore, our opinion that we have, not only jurisdiction, but, also, the duty, to consider and determine the principal issue raised by the parties herein.

 
 

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J. M. Tuason & Co., Inc. v. Court of Appeals, 3 SCRA 696, No. L-18128, No. L-18672 December 26, 1961

En Banc

[REYES, J.B.L., J.]

FACTS: Bruna Rosete and Tranquilino Dizon, petitioned the Court of First Instance to suspend the order of demolition of their houses, on the ground that they were tenants of the Tatalon Estate; that Republic Act No. 2616, after specifically authorizing the expropriation of the Tatalon Estate. However, Judge Nicasio Yatco of the Court of First Instance of Quezon City denied the suspension because no expropriation proceedings had been actually filed. On certiorari, the Court of Appeals ordered the issuance ex parte of the preliminary injunction.

Respondent Tuason & Company, Inc., moved to dissolve the preliminary injunction of the Court of Appeals, that the prohibition proceedings a question of constitutionality of a statute is not appealable to the Court of Appeals; It is urged by amicus curiae that Courts of First Instance have no jurisdiction to entertain actions assailing the constitutionality of statutes or treaties, because section 10 of Article VIII of the Constitution prescribes that — No treaty or law may be declared unconstitutional without the concurrence of two-thirds of all the members of the (Supreme) Court.

ISSUE: Are trial courts vested with jurisdiction to decide on the constitutionality of statutes or treaties?

HELD: YES.

[T]he Constitution itself inhibits Congress from depriving the Supreme Court —

of its jurisdiction to review, revise, reverse, modify, or affirm on appeal, certiorari or writ of error, as the law or the rules of court may provide, final judgments and decrees of inferior courts in —

(1) All cases in which the constitutionality or validity of any treaty, law, ordinance or executive orders or regulations is in question (Emphasis supplied).

Plainly the Constitution contemplates that the inferior courts should have jurisdiction in cases involving constitutionality of any treaty or law, for it speaks of appellate review of final judgments of inferior courts in cases where such constitutionality happens to be in issue. Construing both provisions together, it is readily discerned that the two-third vote of the Supreme Court, required by Section 10 of Article VIII, conditions only the decisions of the Supreme Court in the exercise of its appellate jurisdiction.

 
 

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Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Commission on Elections, 289 SCRA 337, G.R. No. 132922 April 21, 1998

En Banc

[MENDOZA, J.]

FACTS: Section 92 of Batas Pambansa (BP) Blg. 881, as amended, reads as follows:

Sec. 92. Comelec time. — The commission shall procure radio and television time to be known as “Comelec Time” which shall be allocated equally and impartially among the candidates within the area of coverage of all radio and television stations. For this purpose, the franchise of all radio broadcasting and television stations are hereby amended so as to provide radio or television time, free of charge, during the period of the campaign.

Petitioners contend that §92 of BP Blg. 881 violates the due process clause and the eminent domain provision of the Constitution by taking airtime from radio and television broadcasting stations without payment of just compensation. Petitioners claim that the primary source of revenue of the radio and television stations is the sale of airtime to advertisers and that to require these stations to provide free airtime is to authorize a taking which is not “a de minimis temporary limitation or restraint upon the use of private property.” According to petitioners, in 1992, the GMA Network, Inc. lost P22,498,560.00 in providing free airtime of one (1) hour every morning from Mondays to Fridays and one (1) hour on Tuesdays and Thursdays from 7:00 to 8:00 p.m. (prime time) and, in this year’s elections, it stands to lose P58,980,850.00 in view of COMELEC’s requirement that radio and television stations provide at least 30 minutes of prime time daily for the COMELEC Time.

 

ISSUE#1: Does GMA Network, Inc. have the standing to bring the constitutional question on the assailed provision?

HELD#1YES.

[W]e have decided to take this case since the other petitioner, GMA Network, Inc., appears to have the requisite standing to bring this constitutional challenge. Petitioner operates radio and television broadcast stations in the Philippines affected by the enforcement of §92 of B.P. Blg. 881 requiring radio and television broadcast companies to provide free airtime to the COMELEC for the use of candidates for campaign and other political purposes. Petitioner claims that it suffered losses running to several million pesos in providing COMELEC Time in connection with the 1992 presidential election and the 1995 senatorial election and that it stands to suffer even more should it be required to do so again this year. Petitioner’s allegation that it will suffer losses again because it is required to provide free airtime is sufficient to give it standing to question the validity of §92.

ISSUE#2: Is Section 92 of BP. Blg. 881 violative of the due process clause and unlawful taking of private property for public use without just compensation?

HELD#2: NO.

Petitioners’ argument is without merit. All broadcasting, whether by radio or by television stations, is licensed by the government. Airwave frequencies have to be allocated as there are more individuals who want to broadcast than there are frequencies to assign. A franchise is thus a privilege subject, among other things, to amendment by Congress in accordance with the constitutional provision that “any such franchise or right granted . . . shall be subject to amendment, alteration or repeal by the Congress when the common good so requires.”

 
 

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