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EMMANUEL PELAEZ, petitioner,

vs.
THE AUDITOR GENERAL, respondent.
Zulueta, Gonzales, Paculdo and Associates for petitioner.
Office of the Solicitor General for respondent.
CONCEPCION, J.:
During the period from September 4 to October 29, 1964 the President of the
Philippines, purporting to act pursuant to Section 6 of the !evised
"dministrative #ode, issued $%ecutive Orders &os. 9' to 121, 124 and 126 to
129( creating thirt)*three +'', municipalities enumerated in the margin.
1
Soon
after the date last mentioned, or on &ovember 1-, 1964 petitioner $mmanuel
Pelae., as /ice President of the Philippines and as ta%pa)er, instituted the
present special civil action, for a 0rit of prohibition 0ith preliminar) in1unction,
against the "uditor 2eneral, to restrain him, as 0ell as his representatives and
agents, from passing in audit an) e%penditure of public funds in implementation
of said e%ecutive orders and3or an) disbursement b) said municipalities.
Petitioner alleges that said e%ecutive orders are null and void, upon the ground
that said Section 6 has been impliedl) repealed b) !epublic "ct &o. 2'4- and
constitutes an undue delegation of legislative po0er. !espondent maintains the
contrar) vie0 and avers that the present action is premature and that not all
proper parties 5 referring to the officials of the ne0 political subdivisions in
6uestion 5 have been impleaded. Subse6uentl), the ma)ors of several
municipalities adversel) affected b) the aforementioned e%ecutive orders 5
because the latter have ta7en a0a) from the former the barrios composing the
ne0 political subdivisions 5 intervened in the case. 8oreover, "ttorne)s $nri6ue
8. 9ernando and $mma :uisumbing*9ernando 0ere allo0ed to and did appear
as amici curiae.
;he third paragraph of Section ' of !epublic "ct &o. 2'4-, reads<
=arrios shall not be created or their boundaries altered nor their names
changed e%cept under the provisions of this "ct or b) "ct of #ongress.
Pursuant to the first t0o +2, paragraphs of the same Section '<
"ll barrios e%isting at the time of the passage of this "ct shall come under
the provisions hereof.
>pon petition of a ma1orit) of the voters in the areas affected, a ne0 barrio
ma) be created or the name of an e%isting one ma) be changed b) the
provincial board of the province, upon recommendation of the council of
the municipalit) or municipalities in 0hich the proposed barrio is
stipulated. ;he recommendation of the municipal council shall be
embodied in a resolution approved b) at least t0o*thirds of the entire
membership of the said council< Provided, ho0ever, ;hat no ne0 barrio
ma) be created if its population is less than five hundred persons.
?ence, since @anuar) 1, 196-, 0hen !epublic "ct &o. 2'4- became effective,
barrios ma) Anot be created or their boundaries altered nor their names changedA
e%cept b) "ct of #ongress or of the corresponding provincial board Aupon petition
of a ma1orit) of the voters in the areas affectedA and the Arecommendation of the
council of the municipalit) or municipalities in 0hich the proposed barrio is
situated.A Petitioner argues, accordingl)< ABf the President, under this ne0 la0,
cannot even create a barrio, can he create a municipalit) 0hich is composed of
several barrios, since barrios are units of municipalitiesCA
!espondent ans0ers in the affirmative, upon the theor) that a ne0 municipalit)
can be created 0ithout creating ne0 barrios, such as, b) placing old barrios
under the 1urisdiction of the ne0 municipalit). ;his theor) overloo7s, ho0ever, the
main import of the petitionerDs argument, 0hich is that the statutor) denial of the
presidential authorit) to create a ne0 barrio implies a negation of the bigger
po0er to create municipalities, each of 0hich consists of several barrios. ;he
cogenc) and force of this argument is too obvious to be denied or even
6uestioned. 9ounded upon logic and e%perience, it cannot be offset e%cept b) a
clear manifestation of the intent of #ongress to the contrar), and no such
manifestation, subse6uent to the passage of !epublic "ct &o. 2'49, has been
brought to our attention.
8oreover, section 6 of the !evised "dministrative #ode, upon 0hich the
disputed e%ecutive orders are based, provides<
;he +2overnor*2eneral, President of the Philippines ma) b) e%ecutive
order define the boundar), or boundaries, of an) province, subprovince,
municipalit), Eto0nshipF municipal district, or other political subdivision,
and increase or diminish the territor) comprised therein, ma) divide an)
province into one or more subprovinces, separate an) political division
other than a province, into such portions as ma) be re6uired, merge an)
of such subdivisions or portions 0ith another, name an) ne0 subdivision
so created, and ma) change the seat of government 0ithin an)
subdivision to such place therein as the public 0elfare ma) re6uire<
Provided, ;hat the authori.ation of the +Philippine Gegislature, #ongress
of the Philippines shall first be obtained 0henever the boundar) of an)
province or subprovince is to be defined or an) province is to be divided
into one or more subprovinces. Hhen action b) the +2overnor*2eneral,
President of the Philippines in accordance here0ith ma7es necessar) a
change of the territor) under the 1urisdiction of an) administrative officer or
an) 1udicial officer, the +2overnor*2eneral, President of the Philippines,
0ith the recommendation and advice of the head of the Department
having e%ecutive control of such officer, shall redistrict the territor) of the
several officers affected and assign such officers to the ne0 districts so
formed.
>pon the changing of the limits of political divisions in pursuance of the
foregoing authorit), an e6uitable distribution of the funds and obligations
of the divisions thereb) affected shall be made in such manner as ma) be
recommended b) the +Bnsular "uditor, "uditor 2eneral and approved b)
the +2overnor*2eneral, President of the Philippines.
!espondent alleges that the po0er of the President to create municipalities
under this section does not amount to an undue delegation of legislative po0er,
rel)ing upon Municipality of Cardona vs. Municipality of ina!"onan +'6 Phil.
I44,, 0hich, he claims, has settled it. Such claim is untenable, for said case
involved, not the creation of a ne0 municipalit), but a mere transfer of territory 5
from an already e#istin" municipalit) +#ardona, to another municipalit)
+=inaJgonan,, li$e%ise, e#istin" at the time of and prior to said transfer +See
2ovDt of the P.B. e% rel. 8unicipalit) of #ardona vs. 8unicipalit), of =inaJgonan
E'4 Phil. I1, I19*I2-1, 5 in conse6uence of the fi%ing and definition, pursuant
to "ct &o. 144, of the common boundaries of t0o municipalities.
Bt is obvious, ho0ever, that, 0hereas the po0er to fi% such common boundar), in
order to avoid or settle conflicts of 1urisdiction bet0een ad1oining municipalities,
ma) parta7e of an administrative nature 5 involving, as it does, the adoption of
means and 0a)s to carry into effect the la0 creating said municipalities 5 the
authorit) to create municipal corporations is essentiall) le"islative in nature. Bn
the language of other courts, it is Astrictl) a legislative functionA +State e% rel.
?iggins vs. "ic7len, 119 S. 42I, @anuar) 2, 19I9, or Asolel) and e#clusively the
e%ercise of le"islative po0erA +>dall vs. Severn, 8a) 29, 19', 49 P. 2d '44*
'49,. "s the Supreme #ourt of Hashington has put it +;erritor) e% rel. Kell) vs.
Ste0art, 9ebruar) 1', 19-, 2' Pac. 4-I, 4-9,, Amunicipal corporations are
purely the creatures of statutes.A
"lthough
1a
#ongress ma) delegate to another branch of the 2overnment the
po0er to fill in the details in the e%ecution, enforcement or administration of a
la0, it is essential, to forestall a violation of the principle of separation of po0ers,
that said la0< +a, be complete in itself 5 it must set forth therein the polic) to be
e%ecuted, carried out or implemented b) the delegate
2
5 and +b, fi% a standard
5 the limits of 0hich are sufficientl) determinate or determinable 5 to 0hich the
delegate must conform in the performance of his functions.
2a
Bndeed, 0ithout a
statutor) declaration of polic), the delegate 0ould in effect, ma7e or formulate
such polic), 0hich is the essence of ever) la0( and, 0ithout the aforementioned
standard, there 0ould be no means to determine, 0ith reasonable certaint),
0hether the delegate has acted 0ithin or be)ond the scope of his authorit).
2b

?ence, he could thereb) arrogate upon himself the po0er, not onl) to ma7e the
la0, but, also 5 and this is 0orse 5 to unma7e it, b) adopting measures
inconsistent 0ith the end sought to be attained b) the "ct of #ongress, thus
nullif)ing the principle of separation of po0ers and the s)stem of chec7s and
balances, and, conse6uentl), undermining the ver) foundation of our !epublican
s)stem.
Section 6 of the !evised "dministrative #ode does not meet these 0ell settled
re6uirements for a valid delegation of the po0er to fi% the details in the
enforcement of a la0. Bt does not enunciate an) polic) to be carried out or
implemented b) the President. &either does it give a standard sufficientl) precise
to avoid the evil effects above referred to. Bn this connection, 0e do not overloo7
the fact that, under the last clause of the first sentence of Section 6, the
President<
... ma) change the seat of the government 0ithin an) subdivision to such
place therein as the public %elfare may re&uire.
Bt is apparent, ho0ever, from the language of this clause, that the phrase Aas the
public 0elfare ma) re6uireA 6ualified, not the clauses preceding the one 1ust
6uoted, but only the place to 0hich the seat of the government ma) be
transferred. ;his fact becomes more apparent 0hen 0e consider that said
Section 6 0as originall) Section 1 of "ct &o. 144,
'
0hich provided that,
A0henever in the 1udgment of the 2overnor*2eneral the public %elfare re6uires,
he ma), b) e%ecutive order,A effect the changes enumerated therein +as in said
section 6,, including the change of the seat of the government Ato such place ...
as the public interest re&uires.A ;he opening statement of said Section 1 of "ct
&o. 144 5 0hich 0as not included in Section 6 of the !evised "dministrative
#ode 5 governed the time at 0hich, or the conditions under 0hich, the po0ers
therein conferred could be e%ercised( 0hereas the last part of the first sentence
of said section referred e#clusively to the place to 0hich the seat of the
government 0as to be transferred.
"t an) rate, the conclusion 0ould be the same, insofar as the case at bar is
concerned, even if 0e assumed that the phrase Aas the public 0elfare ma)
re6uire,A in said Section 6, 6ualifies all other clauses thereof. Bt is true that in
Calalan" vs. 'illiams +4- Phil. 426, and People vs. (osenthal +6 Phil. '2,, this
#ourt had upheld Apublic 0elfareA and Apublic interest,A respectivel), as sufficient
standards for a valid delegation of the authorit) to e%ecute the la0. =ut, the
doctrine laid do0n in these cases 5 as all 1udicial pronouncements 5 must be
construed in relation to the specific facts and issues involved therein, outside of
0hich the) do not constitute precedents and have no binding effect.
4
;he la0
construed in the #alalang case conferred upon the Director of Public Hor7s, 0ith
the approval of the Secretar) of Public Hor7s and #ommunications, the po0er to
issue rules and regulations to promote safe transit upon national roads and
streets. >pon the other hand, the !osenthal case referred to the authorit) of the
Bnsular ;reasurer, under "ct &o. 2I1, to issue and cancel certificates or permits
for the sale of speculative securities. =oth cases involved grants to
administrative officers of po0ers related to the e%ercise of their administrative
functions, calling for the determination of 6uestions of fact.
Such is not the nature of the po0ers dealt 0ith in section 6. "s above indicated,
the creation of municipalities, is not an administrative function, but one 0hich is
essentiall) and eminently le"islative in character. ;he 6uestion of 0hether or not
Apublic interestA demands the e%ercise of such po0er is not one of fact. it is
Apurely a le"islative 6uestion A+#arolina*/irginia #oastal ?igh0a) vs. #oastal
;urnpi7e "uthorit), 44 S.$. 2d. '1-*'1', '1I*'1,, or a political 6uestion +>dall
vs. Severn, 49 P. 2d. '44*'49,. "s the Supreme #ourt of Hisconsin has aptl)
characteri.ed it, Athe 6uestion as to 0hether incorporation is for the best interest
of the communit) in an) case is emphaticall) a &uestion of public policy and
statecraftA +Bn re /illage of &orth 8il0au7ee, 64 &.H. 1-'', 1-'I*1-'4,.
9or this reason, courts of 1ustice have annulled, as constituting undue delegation
of legislative po0ers, state la0s granting the 1udicial department, the po0er to
determine 0hether certain territories should be anne%ed to a particular
municipalit) +>dall vs. Severn, supra, 2I*'I9,( or vesting in a #ommission the
right to determine the plan and frame of government of proposed villages and
0hat functions shall be e%ercised b) the same, although the po0ers and
functions of the village are specificall) limited b) statute +Bn re 8unicipal
#harters, 6 "tl. '-4*'-,( or conferring upon courts the authorit) to declare a
given to0n or village incorporated, and designate its metes and bounds, upon
petition of a ma1orit) of the ta%able inhabitants thereof, setting forth the area
desired to be included in such village +;erritor) e% rel Kell) vs. Ste0art, 2' Pac.
4-I*4-9,( or authori.ing the territor) of a to0n, containing a given area and
population, to be incorporated as a to0n, on certain steps being ta7en b) the
inhabitants thereof and on certain determination b) a court and subse6uent vote
of the inhabitants in favor thereof, insofar as the court is allo0ed to determine
0hether the lands embraced in the petition Aought 1ustl)A to be included in the
village, and 0hether the interest of the inhabitants 0ill be promoted b) such
incorporation, and to enlarge and diminish the boundaries of the proposed village
Aas 1ustice ma) re6uireA +Bn re /illages of &orth 8il0au7ee, 64 &.H. 1-'I*1-'4,(
or creating a 8unicipal =oard of #ontrol 0hich shall determine 0hether or not the
la)ing out, construction or operation of a toll road is in the Apublic interestA and
0hether the re6uirements of the la0 had been complied 0ith, in 0hich case the
board shall enter an order creating a municipal corporation and fi%ing the name
of the same +#arolina*/irginia #oastal ?igh0a) vs. #oastal ;urnpi7e "uthorit),
44 S.$. 2d. '1-,.
Bnsofar as the validit) of a delegation of po0er b) #ongress to the President is
concerned, the case of Schechter Poultry Corporation vs. ).S. +49 G. $d. 1I4-,
is 6uite relevant to the one at bar. ;he Schechter case involved the
constitutionalit) of Section ' of the &ational Bndustrial !ecover) "ct authori.ing
the President of the >nited States to approve Acodes of fair competitionA
submitted to him b) one or more trade or industrial associations or corporations
0hich Aimpose no ine6uitable restrictions on admission to membership therein
and are trul) representative,A provided that such codes are not designed Ato
promote monopolies or to eliminate or oppress small enterprises and 0ill not
operate to discriminate against them, and 0ill tend to effectuate the polic)A of
said "ct. ;he 9ederal Supreme #ourt held<
;o summari.e and conclude upon this point< Sec. ' of the !ecover) "ct is
0ithout precedent. Bt supplies no standards for an) trade, industr) or
activit). Bt does not underta7e to prescribe rules of conduct to be applied to
particular states of fact determined b) appropriate administrative
procedure. Bnstead of prescribing rules of conduct, it authori.es the
ma7ing of codes to prescribe them. 9or that legislative underta7ing, Sec. '
sets up no standards, aside from the statement of the general aims of
rehabilitation, correction and e%pansion described in Sec. 1. Bn vie0 of the
scope of that broad declaration, and of the nature of the fe0 restrictions
that are imposed, the discretion of the President in approving or
prescribing codes, and thus enacting la0s for the government of trade and
industr) throughout the countr), is virtuall) unfettered. He thin7 that the
code ma7ing authorit) thus conferred is an unconstitutional delegation of
legislative po0er.
Bf the term Aunfair competitionA is so broad as to vest in the President a discretion
that is Avirtuall) unfettered.A and, conse6uentl), tantamount to a delegation of
legislative po0er, it is obvious that Apublic 0elfare,A 0hich has even a broader
connotation, leads to the same result. Bn fact, if the validit) of the delegation of
po0ers made in Section 6 0ere upheld, there 0ould no longer be an) legal
impediment to a statutor) grant of authorit) to the President to do an)thing 0hich,
in his opinion, ma) be re6uired b) public 0elfare or public interest. Such grant of
authorit) 0ould be a virtual abdication of the po0ers of #ongress in favor of the
$%ecutive, and 0ould bring about a total collapse of the democratic s)stem
established b) our #onstitution, 0hich it is the special dut) and privilege of this
#ourt to uphold.
Bt ma) not be amiss to note that the e#ecutive orders in &uestion %ere issued
after the le"islative bills for the creation of the municipalities involved in this case
had failed to pass Con"ress. " better proof of the fact that the issuance of said
e%ecutive orders entails the e%ercise of purel) legislative functions can hardl) be
given.
"gain, Section 1- +1, of "rticle /BB of our fundamental la0 ordains<
;he President shall have control of all the e%ecutive departments,
bureaus, or offices, e%ercise general supervision over all local
governments as ma) be provided b) la0, and ta7e care that the la0s be
faithfull) e%ecuted.
;he po0er of control under this provision implies the right of the President to
interfere in the e%ercise of such discretion as ma) be vested b) la0 in the officers
of the e%ecutive departments, bureaus, or offices of the national government, as
0ell as to act in lieu of such officers. ;his po0er is denied b) the #onstitution to
the $%ecutive, insofar as local governments are concerned. Hith respect to the
latter, the fundamental la0 permits him to 0ield no more authorit) than that of
chec7ing 0hether said local governments or the officers thereof perform their
duties as provided b) statutor) enactments. ?ence, the President cannot
interfere 0ith local governments, so long as the same or its officers act Hithin the
scope of their authorit). ?e ma) not enact an ordinance 0hich the municipal
council has failed or refused to pass, even if it had thereb) violated a dut)
imposed thereto b) la0, although he ma) see to it that the corresponding
provincial officials ta7e appropriate disciplinar) action therefor. &either ma) he
vote, set aside or annul an ordinance passed b) said council 0ithin the scope of
its 1urisdiction, no matter ho0 patentl) un0ise it ma) be. ?e ma) not even
suspend an elective official of a regular municipalit) or ta7e an) disciplinar)
action against him, e%cept on appeal from a decision of the corresponding
provincial board.
I

>pon the other hand if the President could create a municipalit), he could, in
effect, remove an) of its officials, b) creating a ne0 municipalit) and including
therein the barrio in 0hich the official concerned resides, for his office 0ould
thereb) become vacant.
6
;hus, b) merel) brandishing the po0er to create a ne0
municipalit) +if he had it,, 0ithout actuall) creating it, he could compel local
officials to submit to his dictation, thereb), in effect, e%ercising over them the
po0er of control denied to him b) the #onstitution.
;hen, also, the po0er of control of the President over e%ecutive departments,
bureaus or offices implies no more than the authorit) to assume directl) the
functions thereof or to interfere in the e%ercise of discretion b) its officials.
8anifestl), such control does not include the authority either to abolish an
e#ecutive department or bureau, or to create a ne% one. "s a conse6uence, the
alleged po0er of the President to create municipal corporations 0ould
necessaril) connote the e%ercise b) him of an authorit) even greater than that of
control 0hich he has over the e%ecutive departments, bureaus or offices. Bn other
0ords, Section 6 of the !evised "dministrative #ode does not merel) fail to
compl) 0ith the constitutional mandate above 6uoted. Bnstead of giving the
President less po0er over local governments than that vested in him over the
e%ecutive departments, bureaus or offices, it reverses the process and does the
e#act opposite, b) conferring upon him more po0er over municipal corporations
than that 0hich he has over said e%ecutive departments, bureaus or offices.
Bn short, even if it did entail an undue delegation of legislative po0ers, as it
certainl) does, said Section 6, as part of the !evised "dministrative #ode,
approved on 8arch 1-, 1914, must be deemed repealed b) the subse6uent
adoption of the #onstitution, in 19'I, 0hich is utterl) incompatible and
inconsistent 0ith said statutor) enactment.
7

;here are onl) t0o +2, other points left for consideration, namel), respondentDs
claim +a, that Anot all the proper partiesA 5 referring to the officers of the ne0l)
created municipalities 5 Ahave been impleaded in this case,A and +b, that Athe
present petition is premature.A
"s regards the first point, suffice it to sa) that the records do not sho0, and the
parties do not claim, that the officers of an) of said municipalities have been
appointed or elected and assumed office. "t an) rate, the Solicitor 2eneral, 0ho
has appeared on behalf of respondent "uditor 2eneral, is the officer authori.ed
b) la0 Ato act and represent the 2overnment of the Philippines, its offices and
agents, in an) official investigation, proceeding or matter re6uiring the services of
a la0)erA +Section 1661, !evised "dministrative #ode,, and, in connection 0ith
the creation of the aforementioned municipalities, 0hich involves a political, not
proprietar), function, said local officials, if an), are mere agents or
representatives of the national government. ;heir interest in the case at bar has,
accordingl), been, in effect, dul) represented.


Hith respect to the second point, respondent alleges that he has not as )et acted
on an) of the e%ecutive order L in 6uestion and has not intimated ho0 he 0ould
act in connection there0ith. Bt is, ho0ever, a matter of common, public
7no0ledge, sub1ect to 1udicial cogni.ance, that the President has, for man)
)ears, issued e%ecutive orders creating municipal corporations and that the same
have been organi.ed and in actual operation, thus indicating, 0ithout
peradventure of doubt, that the e%penditures incidental thereto have been
sanctioned, approved or passed in audit b) the 2eneral "uditing Office and its
officials. ;here is no reason to believe, therefore, that respondent 0ould adopt a
different polic) as regards the ne0 municipalities involved in this case, in the
absence of an allegation to such effect, and none has been made b) him.
H?$!$9O!$, the $%ecutive Orders in 6uestion are hereb) declared null and
void ab initio and the respondent permanentl) restrained from passing in audit
an) e%penditure of public funds in implementation of said $%ecutive Orders or
an) disbursement b) the municipalities above referred to. Bt is so ordered.
en"zon, C.*., autista An"elo, (eyes, *..+., arrera and ,izon, **., concur.
Zaldivar, *., too7 no part.
Separate Opinions
BENGZON, JP, J., concurring and dissenting<
" sign of progress in a developing nation is the rise of ne0 municipalities.
9ostering their rapid gro0th has long been the aim pursued b) all three branches
of our 2overnment.
So it 0as that the 2overnor*2eneral during the time of the @ones Ga0 0as given
authorit) b) the Gegislature +"ct &o. 144, to act upon certain details 0ith
respect to said local governments, such as fi%ing of boundaries, subdivisions and
mergers. "nd the Supreme #ourt, 0ithin the frame0or7 of the @ones Ga0, ruled
in 1914 that the e%ecution or implementation of such details, did not entail
abdication of legislative po0er +2overnment vs. 8unicipalit) of =inaJgonan, '4
Phil. I1( 8unicipalit) of #ardona vs. 8unicipalit) of =inaJgonan, '6 Phil. I44,.
Subse6uentl), "ct &o. 144Ds aforesaid statutor) authori.ation 0as embodied in
Section 6 of the !evised "dministrative #ode. "nd #hief $%ecutives since then
up to the present continued to avail of said provision, time and again invo7ing it
to issue e%ecutive orders providing for the creation of municipalities.
9rom September 4, 1964 to October 29, 1964 the President of the Philippines
issued e%ecutive orders to create thirt)*three municipalities pursuant to Section
6 of the !evised "dministrative #ode. Public funds thereb) stood to be
disbursed in implementation of said e%ecutive orders.
Suing as private citi.en and ta%pa)er, /ice President $mmanuel Pelae. filed in
this #ourt a petition for prohibition 0ith preliminar) in1unction against the "uditor
2eneral. Bt see7s to restrain the respondent or an) person acting in his behalf,
from passing in audit an) e%penditure of public funds in implementation of the
e%ecutive orders aforementioned.
Petitioner contends that the President has no po0er to create a municipalit) b)
e%ecutive order. Bt is argued that Section 6 of the !evised "dministrative #ode
of 1914, so far as it purports to grant an) such po0er, is invalid or, at the least,
alread) repealed, in light of the Philippine #onstitution and !epublic "ct 2'4-
+;he =arrio #harter,.
Section 6 is again reproduced hereunder for convenience<
S$#. 6. General authority of -Governor.General/ President of the
Philippines to fi# boundaries and ma$e ne% subdivisions. 5 ;he
E2overnor*2eneralF President of the Philippines ma) b) e%ecutive order
define the boundar), or boundaries, of an) province, subprovince,
municipalit), Eto0nshipF municipal district, or other political subdivision,
and increase or diminish the territor) comprised therein, ma) divide an)
province into one or more subprovinces, separate an) political division
other than a province, into such portions as ma) be re6uired, merge an)
of such subdivisions or portions 0ith another, name an) ne0 subdivision
so created, and ma) change the seat of government 0ithin an)
subdivision to such place therein as the public 0elfare ma) re6uire<
Provided, ;hat the authori.ation of the EPhilippine GegislatureF #ongress of
the Philippines shall first be obtained 0henever the boundar) of an)
province or subprovince is to be defined or an) province is to be divided
into one or more subprovinces. Hhen action b) the E2overnor*2eneralF
President of the Philippines in accordance here0ith ma7es necessar) a
change of the territor) under the 1urisdiction of an) administrative officer or
an) 1udicial officer, the E2overnor*2eneralF President of the Philippines,
0ith the recommendation and advice of the head of the Department
having e%ecutive control of such officer, shall redistrict the territor) of the
several officers to the ne0 districts so formed.
>pon the changing of the limits of political divisions in pursuance of the
foregoing authorit), an e6uitable distribution of the funds and obligations
of the divisions thereb) affected shall be made in such manner as ma) be
recommended b) the EBnsular "uditorF "uditor 2eneral and approved b)
the E2overnor*2eneralF President of the Philippines.
9rom such 0or7ing B believe that po0er to create a municipalit) is included< to
Aseparate an) political division other than a province, into such portions as ma)
be re6uired, merge an) such subdivisions or portions 0ith another, name an)
ne0 subdivision so created.A ;he issue, ho0ever, is 0hether the legislature can
validl) delegate to the $%ecutive such po0er.
;he po0er to create a municipalit) is legislative in character. "merican
authorities have therefore favored the vie0 that it cannot be delegated( that 0hat
is delegable is not the po0er to create municipalities but onl) the po0er to
determine the e%istence of facts under 0hich creation of a municipalit) 0ill result
+'4 "m. @ur. 62,.
;he test is said to lie in 0hether the statute allo0s an) discretion on the delegate
as to 0hether the municipal corporation should be created. Bf so, there is an
attempted delegation of legislative po0er and the statute is invalid +0bid.,. &o0
Section 6 no doubt gives the President such discretion, since it sa)s that the
President Ama) b) e%ecutive orderA e%ercise the po0ers therein granted.
9urthermore, Section I of the same #ode states<
S$#. I. 1#ercise of administrative discretion 2 ;he e%ercise of the
permissive po0ers of all e%ecutive or administrative officers and bodies is
based upon discretion, and 0hen such officer or bod) is given authorit) to
do an) act but not re6uired to do such act, the doing of the same shall be
dependent on a sound discretion to be e%ercised for the good of the
service and benefit of the public, 0hether so e%pressed in the statute
giving the authorit) or not.
>nder the prevailing rule in the >nited States 5 and Section 6 is of "merican
origin 5 the provision in 6uestion 0ould be an invalid attempt to delegate purel)
legislative po0ers, contrar) to the principle of separation of po0ers.
Bt is ver) pertinent that Section 6 should be considered 0ith the stream of
histor) in mind. " proper 7no0ledge of the past is the onl) ade6uate bac7ground
for the present. Section 6 0as adopted half a centur) ago. Political change, t0o
0orld 0ars, the recognition of our independence and rightful place in the famil) of
nations, have since ta7en place. Bn 1914 the Philippines had for its Organic "ct
the @ones Ga0. "nd under the setup ordained therein no strict separation of
po0ers 0as adhered to. #onse6uentl), Section 6 0as not constitutionall)
ob1ectionable at the time of its enactment.
;he advent of the Philippine #onstitution in 19'I ho0ever altered the situation.
9or not onl) 0as separation of po0ers strictl) ordained, e%cept onl) in specific
instances therein provided, but the po0er of the #hief $%ecutive over local
governments suffered an e%plicit reduction.
9ormerl), Section 21 of the @ones Ga0 provided that the 2overnor*2eneral Ashall
have general supervision and control of all the departments and bureaus of the
government in the Philippine Bslands.A &o0 Section 1- +1,, "rticle /BB of the
Philippine #onstitution provides< A;he President shall have control of all the
e%ecutive departments, bureaus, or offices, e%ercise general supervision over all
local governments as ma) be provided b) la0, and ta7e care that the la0s be
faithfull) e%ecuted.
Bn short, the po0er of control over local governments had no0 been ta7en a0a)
from the #hief $%ecutive. "gain, to full) understand the significance of this
provision, one must trace its development and gro0th.
"s earl) as "pril 4, 19-- President 8cKinle) of the >nited States, in his
Bnstructions to the Second Philippine #ommission, laid do0n the polic) that our
municipal governments should be Asub1ect to the least degree of supervision and
controlA on the part of the national government. Said supervision and control 0as
to be confined 0ithin the Anarro0est limitsA or so much onl) as Ama) be
necessar) to secure and enforce faithful and efficient administration b) local
officers.A "nd the national government Ashall have no direct administration e%cept
of matters of purel) general concern.A +See ?ebron v. !e)es, G*91I, @ul) 2,
19I.,
"ll this had one aim, to enable the 9ilipinos to ac6uire e%perience in the art of
self*government, 0ith the end in vie0 of later allo0ing them to assume complete
management and control of the administration of their local affairs. Such aim is
the polic) no0 embodied in Section 1- +1,, "rticle /BB of the #onstitution
+!odrigue. v. 8ontinola, I- O.2. 42-,.
Bt is the evident decree of the #onstitution, therefore, that the President shall
have no po0er of control over local governments. "ccordingl), #ongress cannot
b) la0 grant him such po0er +?ebron v. !e)es, supra,. "nd an) such po0er
formerl) granted under the @ones Ga0 thereb) became unavoidabl) inconsistent
0ith the Philippine #onstitution.
Bt remains to e%amine the relation of the po0er to create and the po0er to control
local governments. Said relationship has alread) been passed upon b) this #ourt
in 3ebron v. (eyes, supra. Bn said case, it 0as ruled that the po0er to control is
an incident of the po0er to create or abolish municipalities. !espondentDs vie0,
therefore, that creating municipalities and controlling their local governments are
At0o 0orlds apart,A is untenable. "nd since as stated, the po0er to control local
governments can no longer be conferred on or e%ercised b) the President, it
follo0s a fortiori that the po0er to create them, all the more cannot be so
conferred or e%ercised.
B am compelled to conclude, therefore, that Section 1- +1,, "rticle /BB of the
#onstitution has repealed Section 6 of the !evised "dministrative #ode as far
as the latter empo0ers the President to create local governments. !epeal b) the
#onstitution of prior statutes inconsistent 0ith it has alread) been sustained in
,e los Santos v. Ma0lare, 4 Phil. 29. "nd it 0as there held that such repeal
differs from a declaration of unconstitutionalit) of a posterior legislation, so much
so that onl) a ma1orit) vote of the #ourt is needed to sustain a finding of repeal.
Since the #onstitution repealed Section 6 as far bac7 as 19'I, it is academic to
as7 0hether !epublic "ct 2'4- li7e0ise has provisions in conflict 0ith Section 6
so as to repeal it. Suffice it to state, at an) rate, that statutor) prohibition on the
President from creating a barrio does not, in m) opinion, 0arrant the inference of
statutor) prohibition for creating a municipalit). 9or although municipalities
consist of barrios, there is nothing in the statute that 0ould preclude creation of
ne0 municipalities out of pre*e%isting barrios.
Bt is not contrar) to the logic of local autonom) to be able to create larger political
units and unable to create smaller ones. 9or as long ago observed in President
8cKinle)Ds Bnstructions to the Second Philippine #ommission, greater autonom)
is to be imparted to the smaller of the t0o political units. ;he smaller the unit of
local government, the lesser is the need for the national governmentDs
intervention in its political affairs. 9urthermore, for practical reasons, local
autonom) cannot be given from the top do0n0ards. ;he national government, in
such a case, could still e%ercise po0er over the supposedl) autonomous unit,
e.g., municipalities, b) e%ercising it over the smaller units that comprise them,
e.g., the barrios. " realistic program of decentrali.ation therefore calls for
autonom) from the bottom up0ards, so that it is not surprising for #ongress to
den) the national government some po0er over barrios 0ithout den)ing it over
municipalities. 9or this reason, B disagree 0ith the ma1orit) vie0 that because the
President could not create a barrio under !epublic "ct 2'4-, a fortiori he cannot
create a municipalit).
Bt is m) vie0, therefore, that the #onstitution, and not !epublic "ct 2'4-,
repealed Section 6 of the !evised "dministrative #odeDs provision giving the
President authorit) to create local governments. "nd for this reason B agree 0ith
the ruling in the ma1orit) opinion that the e%ecutive orders in 6uestion are null and
void.
Bn thus ruling, the #ourt is but sustaining the fulfillment of our historic desire to be
free and independent under a republican form of government, and e%ercising a
function derived from the ver) sovereignt) that it upholds. $%ecutive orders
declared null and void.
Ma$alintal and (e"ala, **., concur.