Pelaez V Auditor General PDF

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SUPREMECOURTREPORTSANNOTATEDVOLUME015
VOL.15,DECEMBER24,1965
569
Pelaezvs.AuditorGeneral
No.L23825.December24,1965.
EMMANUEL PELAEZ,
GENERAL,respondent.
petitioner, vs.
THE
AUDITOR
Administrative law Power of President to create municipalities.

Since January 1, 1960, when Republic Act No. 2370 became effective,
barrios may "not be created or their boundaries altered nor their names
changed" except by Act of Congress or of the corresponding" provincial
board"uponpetitionofamajorityofthevotersintheareasaffected"andthe
"recommendation of the council of the municipality or municipalities in
which the proposed barrio is situated." This statutory denial of the
presidentialauthoritytocreateanewbarrioimpliesanegationofthebigger
powertocreatemunicipalities,eachofwhichconsistsofseveralbarrios.
SameSame Nature of power to create municipalities.Whereas the
power to f ix a common boundary, in order to avoid or settle conflicts of
jurisdiction between adjoining municipalities, may partake of an
administrativenatureinvolving,asitdoes,theadoptionofmeansandways
to carry into effect the law creating" said municipalitiesthe authority to
createmunicipalcorporationsisessentiallylegislativeinnature,
Same Same Same Requisites for valid delegation of power.
AlthoughCongressmaydelegatetoanotherbranchofthegovernmentthe
powertofillinthedetailsintheexecution,enforcementoradministrationof
alaw,itisessentialthatsaid
570
570
SUPREMECOURTREPORTSANNOTATED
law:(a)becompleteinitself,settingforththereinthepolicytobeexecuted,
carriedoutorimplementedbythedelegateand(b)fixastandardthelimits
ofwhicharesufficientlydeterminateordeterminabletowhichthedelegate
mustconformintheperformanceofhisfunctions.
http://www.central.com.ph/sfsreader/session/00000159c1dd6bdfe441757f003600fb002c009e/t/?o=False
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SameSameSameSameRequirementsofduedelegationofpowernot
met by Section 68 of Revised Administrative Code.Section 68 of the
RevisedAdministrativeCode,insofarasitgrantstothePresidentthepower
to create municipalities, does not meet the wellsettled requirements for a
validdelegationofthepowertofixthedetailsintheenforcementofalaw.It
does not enunciate any policy to be carried out or implemented by the
President.
SameSameSameSameSameAbdicationofpowersofCongressin
favoroftheExecutive.Ifthevalidityofsaiddelegationofpowers,madein
Section68oftheRevisedAdministrativeCode,wereupheld.therewouldno
longer be any legal impediment to a statutory grant of authority to the
President to do anything which, in his opinion, may be required by public
welfare or public interest. Such grant of authority would be a virtual
abdicationofthe powers of Congress in favor of the Executive, and would
bring about a total collapse of the democratic system established by the
Constitution.
SameSameSameNature of powers dealt with in Section 68 of the
RevisedAdministrativeCode.It is true that in Calalang vs. WiIliams (70
Phil. 726) and People vs. Rosenthal (68 Phil. 328), this Court had upheld
"public welfare" and "public interest," respectively, as sufficient standards
for a valid delegation of the authority to execute the law. But the doctrine
laid down in these cases must be construed in relation to the specific facts
and Issues involved therein, outside of which they do not constitute
precedents and have no binding effect. Both cases involved grants to
administrative officers of powers related to the exercise of their
administrative functions, calling for the determination of questions of fact.
SuchisnotthenatureofthepowersdealtwithinSection68oftheRevised
Administrative Code. The creation of municipalities being essentially and
eminently legislative in character, the question whether or not "public
interest"demandstheexerciseofsuchpowerisnotoneoffactItispurelya
legislative question (CarolinaVirginia Coastal Highway vs. Coastal
Turnpike Authority, 74 S.E. 2d. 310313, 315318), or a political question
(Udallvs.Severn,79P.2d.347349).
SameSameSameSameProof that issuance of Executive Orders in
question enteils exercise of purely legislative functions.The fact that
Executive Orders Nos. 93 to 121, 124 and 128 to 129, creating thirtythree
municipalities,wereissued
571
571
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afterthelegislativebillsforthecreationofthesaidmunicipalitieshadfailed
topassCongress,isthebestproofthattheirissuanceentailstheexerciseof
purelylegislativefunctions.
Same Same Same Power of control over local governments.The
power of control under Section 10 (a) of Article X of the Constitution
implies the right of the President to interfere in the exercise of such
discretion as may be vested by law in the officers of the executive
departments,bureausorofficesofthenationalgovernment,aswellastoact
in lieu of such officers. This power is denied by the Constitution to the
Executive, insofar as local governments are concerned. With respect to the
latter,thefundamentallawpermitshimtowieldnomoreauthoritythanthat
of checking whether said local governments or the officers thereof perform
theirdutiesasprovidedbystatutoryenactments.Hence,thePresidentcannot
interfere with local governments, so long as the same or its officers act
within the scope of their authority. He may not, for instance, suspend an
elective official of a regular municipality or take any disciplinary action
against him, 'except on appeal from a decision of the corresponding
provincial board. If, on the other hand, the President could create a
municipality, he could, in effect, remove any of' its officials, by creating a
new municipality and including therein the barrio in which the official
concerned resides, for his office would thereby become vacant (Section
2179, Revised Administrative Code). Thus, by merely brandishing the
power to create a new municipality, without actually creating it, he could
compellocalofficialstosubmittohisdictationthereby,ineffect,exercising
overthemthepowerofcontroldeniedtohimbytheConstitution.
Same Same Same Same Section 68, Revised Administrative Code
repealed by the Constitution.The power of control of the President over
executivedepartments,bureausorofficesunderSection10(a)ofArticleXof
the Constitution implies no more than the authority to assume directly the
functionsthereofortointerfereintheexerciseofdiscretionbyitsofficials.
Manifestly, such control does not include the authority either to abolish an
executive department or bureau, or to create a new one. As a consequence,
the alleged power of the President to create municipal corporations would
necessarily connote the 'exercise by him of an authority even greater than
that of control which he has over the executive departments, bureaus or
offices, Instead of giving the President less power over local governments
thanthatvestedinhimovertheexecutivedepartments,bureausoroffices,it
reverses the process and does the exact opposite, by conferring upon him
more power over municipal corporations than that which he has over
executivedepartments,bureausoroffices.Evenif,therefore,itdidnotentail
anunduedelegationoflegislativepowers,as
572
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it certainly does, said Section 68, as part of the Revised Administrative

Code, approved on March 10, 1967, must be deemed repealed by the
subsequent adoption of the Constitution in 1935, which is utterly
incompatible and inconsistent with said statutory enactment. (De los Santos
vs.Mallare,87Phil.289,298299.)
SameSameSameMunicipal officials concerned duly represented in
present case.lt is contended that not all the proper parties have been
impleadedinthepresentcase.Sufficeittosaythattherecordsdonotshow,
and the parties do not claim, that the officers of any of the municipalities
concerned have been appointed or elected and have assumed office. At any
rate, the Solicitor General, who has appeared on behalf of respondent
Auditor General, is the officer authorized by law "to act and represent the
Government of the Philippines, its offices and agents, in any official
investigation, proceeding or matter requiring the services of a lawyer"
(Section 1661, Revised Administrative Code), and, in connection with the
creation of the municipalities involved in this case, which involves a
political,notproprietaryfunction.saidlocalofficials,ifany,aremereagents
or representatives of the national government. Their interest in the case has
accordinglybeendulyrepresented.(Mangubatvs.Osmea,Jr.,G.R.No.L
12837,April30,1959CityofCebuvs.JudgePiccio,G.R.NosL13012&
14876.December81,1960.)
SameSameActionnotpremature.Thepresentactioncannotbesaid
tobeprematuresimplybecauserespondentAuditorGeneralhasnotyetacted
on any of the executive orders in question and has not intimated how he
wouldactinconnectiontherewith.Itisamatterofcommonknowledgethat
thePresidenthasformanyyearsissuedexecutiveorderscreatingmunicipal
corporations and that the same have been organized and are in actual
operation, thus indicating without peradventure or doubt, that the
expenditures incidental thereto have been sanctioned, approved or passed in
auditbytheGeneralAuditingOfficeanditsofficials.Thereisnoreasonto
believe that respondent would adopt a different policy as regards the new
municipalities involved in this case, in the absence of an allegation to such
effect,andnonehasbeenmadebyhim.
ORIGINAL ACTION in the Supreme Court. Prohibition with

preliminaryinjunction.
ThefactsarestatedintheopinionoftheCourt.
Zulueta,Gonzales,Paculdo&Associatesforpetitioner.
SolicitorGeneralforrespondent.
573
573
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CONCEPCION,J.:
During the period from September 4 to October 29, 1064 the
PresidentofthePhilippines,purportingtoactpursuanttoSection68
of the Revised Administrative Code, issued Executive Orders Nos,
93 to 121, 124 and 126 to 129 creating
thirtythree (33)
1
municipalities enumerated in the margin. Soon after the date last
mentioned, or on November 10, 1964 petitioner Emmanuel Pelaez,
as Vice President of the Philippines and as taxpayer, instituted the
presentspecialcivilaction,forawritofprohibitionwithpreliminary
injunction, against the Auditor General, to restrain him, as well as
hisrepresentativesandagentsfrompassinginauditanyexpenditure
of public funds in implementation of said executive orders and/or
anydisbursementby,saidmunicipalities.
Petitioner alleges that said executive orders are null and void,
uponthegroundthatsaidSection68hasbeenimpliedlyrepealedby
Republic Act No. 2370 and constitutes an undue delegation of
legislativepower,Respondentmaintainsthecontraryviewandavers
thatthepresentaction
_______________
1
Executive
OrderNo.
Municipality Province
Date
Promulgated
93
Nilo
Zamboangadel Sept.4,1961 A
Sur
94
Midsalip
"""
"""
95
Pitogo
"""
"""
96
Maruing
"""
"""
97
Naga
"""
"""
"
99
Sebaste
Antique
"26"
"
100
Molugan
Misamis
Oriental
"""
"
101
Malixi
SurigaodelSur "28"
"
102
Roxas
Davao
"""
"
103
Magsaysay
"
"""
"
104
Sta,Maria
"
"""
"
105
Badiangan
Iloilo
"""
"
106
Mina
"
Oct.1"
"
107
Andong
LanaodelSur
"""
"
108
SultanAlonto """
"""
"
109
Maguing
"""
"""
"
110
Dianaton
"""
"""
"
111
Elpidio
Quirino
Mt.Province
"""
"
112
Bayog
Zamboangadel """
Sur
"
Executive
Date
Annex(Original
Petition)
Annex(Original
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Executive
OrderNo.
Date
Promulgated
Annex(Original
Petition)
117
Gloria
Oriental
Mindoro
"""
GG (Attachedhere
to)
113
Maasin
Cotabato
"""
114
Siayan
Zamboangadel """
Norte
LC
115
Roxas
"""
"""
116P
Panganuran
"""
"""
118
Kalilangan
Bukidnon
"""
119
Lantapan
"
"""
120
Libertad
Zamboangadel """
Sur
121
General
Aguinaldo
"""
"""
AA
124
Rizal
Surigaodel
Norte
"3"
BB
126
Tigao
SurigaodelSur "23"
CC
127
Tampakan
Cotabato
"26"
DD
128
Maco
Davao
"29"
EE
129
NewCorella "
"""
FF
574
574
is premature and that not all proper partiesreferring: to the

officials of the new political subdivisions in questionhave been
impleaded, Subsequently, the mayors of several municipalities
adverselyaffectedbytheaforementionedexecutiveordersbecause
the latter have taken sway from the former the barrios composing
the new political subdivisionsintervened in the case. Moreover,
Attorneys Enrique M. Fernando and Emma QuisumbingFernando
wereallowedtoanddidappearasamicicuriae.
The third paragraph of Section 3 of Republic Act No. 2370,
reads:
"Barrios shall not be created or their boundaries altered nor their names
changedexceptundertheprovisionsofthisActorbyActofCongress."
Pursuanttothefirsttwo(2)paragraphsofthesameSection3:
"AllbarriosexistingatthetimeofthepassageofthisActshallcomeunder
theprovisionshereof.
"Upon petition of a majority of the voters in the areas affected, a new
barriomaybecreatedorthenameofanexistingonemay'bechangedbythe
provincialboardoftheprovince,uponrecommendationofthecouncilofthe
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municipalityormunicipalitiesinwhichtheproposedbarrioisstipulated.The
recommendation of the municipal council shall be embodied in a resolution
approvedbyatleasttwothirdsoftheentiremembershipofthesaidcouncil:
Provided,however, That no new barrio may be created if its population is
lessthanfivehundredpersons."
Hence,sinceJanuary1,1960,whenRepublicActNo.2370became
effective,barriosmay"notbecreatedortheirboundariesalterednor
their names changed'' except by Act of Congress or of the
corresponding provincial board "upon petition of a majority of the
votersintheareasaffected"andthe"recommendationofthecouncil
ofthemunicipalityormunicipalitiesinwhichtheproposedbarriois
situated."Petitionerargues,accordingly:"IfthePresident,underthis
new law, cannot even create a barrio, can he create a municipality
which is composed of several barrios, since barrios are units of
municipalities?"
575
575
Respondent answers in the affirmative, upon the theory that a new

municipality can be created without creating new barrios, such as,
byplacingoldbarriosunderthejurisdictionofthenewmunicipality.
Thistheoryoverlooks,however,themainimportofthepetitioner's
argument, which is that the statutory denial of the presidential
authority to create a new barrio implies a negation of the bigger
power to create municipalities, each of which consists of se everal
barrios.Thecogencyandforceofthisargumentistooobvioustobe
denied or even questioned. Founded upon logic and experience, it
cannot be offset except by a clear manifestation of the intent of
Congress to the contrary, and no such manifestation, subsequent to
the passage of Republic Act No. 2379, has been brought to our
attention.
Moreover,section68oftheAdministrativeCode,uponwhichthe
disputedexecutiveordersarebased,provides:
"The (GovernorGeneral) President of the Philippines may by executive
order define the or boundaries, of any province, subprovince, municipality,
[township] district, or other political subdivision, and increase or diminish
the territory comprised therein, may divide any province into one or more
subprovices, separate any political division other than a province, into such
portions as may be required, merge any of such subdivisions or portions
withanother,nameanynewsubdivisionso created, may change the seat of
government within any subdivision to such place therein as the public
welfare may require: Provided, That the authorization of the (Philippine
Legislature)CongressofthePhilippinesshallfirstbeobtainedwheneverthe
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boundaryofanyprovinceorsubprovinceistobedefinedoranyprovinceis
tobedividedintooneormoresubprovinces.Whenactionbythe(Governor
General) President of the Philippines in accordance herewith makes
necessary a change of the territory under the jurisdiction of any
administrative officer or any judicial officer, the (GovernorGeneral)
PresidentofthePhilippines,withtherecommendationandadviceofthehead
of the Department having executive control of such officer, shall redistrict
the territory of the several officers affected and assign such officers to the
newdistrictssoformed.
"Uponthechangingofthelimitsofpoliticaldivisionsinpursuanceofthe
foregoingauthority,anequitabledistributionofthefundsandobligationsof
thedivisionstherebyaffected
576
576
shall be made in such manner as may be recommended by the (Insular

Auditor)AuditorGeneralandapprovedbythe(GovernorGeneral)President
ofthePhilippines,"
Respondent alleges that the power of the President to create

municipalities under this section does not amount to an undue
delegation of legislative power, relying upon Municipality of
Cardona vs, Municipality of Binagonan (86 Phil. 547), which, he
claims, has settled it. Such claim is untenable, for said case
involved,notthecreationofanewmunicipality,butameretransfer
of territoryfrom an already existing municipality (Cardona) to
anothermunicipality(Binagonan),likewise,existingatthetimeof
andpriortosaidtransfer(SeeGov'toftheP.I.exrel.Municipality
ofCardonavs.MunicipalityofBinagonan[34Phil.518,519520])
inconsequenceofthefixinganddefinition,pursuanttoAct.No.
1748,ofthecommonboundariesoftwomunicipalities.
It is obvious, however, that, whereas the power to fix such
commonboundary,inordertoavoidorsettleconflictsofjurisdiction
betweenadjoiningmunicipalities,maypartakeofanadministrative
natureinvolving, as it does, the adoption of means and ways to
carryintoeffectthelawcreatingsaidmunicipalitiestheauthority
tocreate municipal corporations is essentially legislativeinnature,
Inthelanguageofothercourts,itis"strictlyalegislativefunction"
(State ex rel. Higgins vs. Aicklen, 119 S. 425, January 2, 1959) or
"solelyandexclusivelytheexerciseoflegislativepower"(Udallvs.
Severn,May29,1938,79P.2d347349).AstheSupremeCourtof
Washingtonhasputit(Territoryexrel.Kellyvs.Stewart,February
13,1890,23Pac.405,409),"municipalcorporationsarepurelythe
creaturesofstatutes."
1a
Although Congress may delegate to another

branch of the
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1a
Although Congress may delegate to another branch of the

Government the power to fill in the details in the execution,
enforcementoradministrationofalaw,itisessential,toforestalla
violationoftheprincipleofseparationofpowers,thatsaidlaw:(a)
becompleteinitself
______________
1a
Except to local governments, to which legislative powers, with respect to
mattersoflocalconcern,maybedelegated.
577
577
itmustsetforththereinthepolicytobeexecuted,carriedoutor
2
implementedbythedelegate and(b)fixastandardthelimitsof
which are sufficiently determinate or determinableto which
the
2a
delegatemustconformintheperformanceofhisfunctions. Indeed,
without a statutory declaration of policy, the delegate would in
effect,makeorformulatesuchpolicy,whichistheessenceofevery
law and without the aforementioned standard, there would be no
meanstodetermine,withreasonablecertainty,whetherthedelegate
2b
has acted within or beyond the scope of his authority. Hence, he
couldtherebyarrogateuponhimselfthepower,notonlytomakethe
law, but, alsoand this is worseto unmake it, by adopting
measuresinconsistentwiththeendsoughttobeattainedbytheAct
of Congress, thus nullifying the principle of separation of powers
and the system of checks and balances, and, consequently,
underminingtheveryfoundationofourRepublican.system.
Section 68 of the Revised Administrative Code does not meet
thesewellsettledrequirementsforavaliddelegationofthepowerto
fixthedetailsintheenforcementofalaw,
_____________
2Calalangvs.Williams,70Phil.726Pangasinan Transp. Co. vs. Public Service
Commission,70Phil.221Cruzvs.Youngberg,56Phil.234Alegre vs. Collector of

Customs,53Phil.394Mulfordvs.Smith,307U.S.38.
2aPeople vs. Lim Ho, L 120912, January 28, 1960 People vs. Jolliffe. L9553,
May 13, 1959 People vs. Vera, 65 Phil. 56 U.S. vs. Ang Tang Ho, 43 Phil. 1
CompaiaGeneraldeTabacosvs.BoardofPublicUtility,34Phil.136MutualFilm
Co. vs. Industrial Commission,236 U.S. 247, 59 L. Ed. 561 Mutual Film Corp. vs.
IndustrialCommission,236U.S.230,59L.Ed.552PamanaRefiningCo.vs.Ryan,
293U.S.388,79L.Ed.446A.L.A.SchechterPoultryCorp.vs.U.S.,295U.S.495,79
L Ed. 1570 U S. vs. Rock Royal Coop., 307 U.S. 533, 83 L. Ed. 1446 Bowles vs.
Willingham,321 U.S. 503, 88 L. Ed. 892 Araneta vs. Gatmaitan, L8895, April 30,
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1957 Cervantes vs. Auditor General, L4043, May 26,1952 Phil. Association of
Colleges vs. See. of Education, 51 Off. Gaz. 6230 People vs. Arnault, 48 Off. Gaz.
4805AntamokGoldFieldsvs.CIR,68Phil.340U.S.vs.Barrias,11Phil.327Yakus
vs.White,321U.S.414Ammannvs.Mailonce.332U.S.245
2b Vigan Electric Light Company, Inc. vs. The Public Service Commission, L
19850,January30,1964.
578
578
Itdoesnotenunciateanypolicytobecarriedoutorimplementedby
thePresidentNeitherdoesitgiveastandardsufficientlypreciseto
avoidtheevileffectsabovereferredto,Inthisconnection,wedonot
overlook the fact that, under the last clause of the first sentence of
Section68,thePresident:
"xxxmaychangetheseatofthegovernmentwithinanysubdivisiontosuch
placethereinasthepublicwelfaremayrequire"
it is apparent, however, from the language of this clause, that the

phrase"asthepublicwelfaremayrequire"qualified,nottheclauses
precedingtheonejustquoted,butonlytheplacetowhichtheseatof
the government may be transferred. This fact becomes more
apparent when we consider
that said Section 68 was originally
3
Section1ofActNo.1748, which provided that, "whenever in the
judgment of the GovernorGeneral the public welfare, requires, he
may,byexecutiveorder,"effectthechangesenumeratedtherein(as
in said section 68), including the change of the seat of the
government"tosuchplacexxx
_____________
3WheneverinthejudgmentoftheGovernorGeneralthepublicwelfarerequires,
hemay,byexecutiveorder,enlarge,contract,orotherwisechangetheboundaryofany
province, subprovince, municipality or township or other political subdivision, or
separate any such subdivision into such portions as may be required as aforesaid,
mergeanyofsuchsubdivisionsorportionswithanother,divideanyprovinceintoone
ormoresubprovincesasmayberequiredasaforesaid,nameanynewsubdivisionso
created, change the seat of government within any subdivision, 'existing or created
hereunder,tosuchplacethereinasthepublicinterestsrequire,andshallfixinsuch
executive order the date when the change, merger, separation, or other action shall
takeeffect.Wheneversuchactionasaforesaidcreatesanewpoliticalsubdivisionthe
GovernorGeneralshallappointsuchofficersforthenewsubdivisionwithsuchpowers
anddutiesasmayberequiredbytheexistingprovisionsoflawapplicabletothecase
and fix their salaries such appointees shall hold office until their successors are
electedorappointedandqualified.Successorstotheelectiveofficesshallbeelected
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atthenextgeneralelectionfollowingsuchappointment,Suchequitabledistributionof
the funds of changed subdivisions between the subdivisions affected shall be as is
recommendedbytheInsularAuditorandapprovedbytheGovernorGeneral.
579
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as the public interest requires" The opening statement of said

Section1ofActNo,1748whichwasnotincludedinSection68of
the Revised Administrative Codegoverned the time at which, or
the conditions under which, the powers therein conferred could be
exercisedwhereasthelastpartofthefirstsentenceofsaidsection
referredexclusivelytotheplacetowhichtheseatofthegovernment
wastobetransferred.
Atanyrate,theconclusionwouldbethesame,insofarasthecase
at bar is concerned, even if we assumed that the phrase "as the
public welfare may require," in said Section 68, qualifies all other
clausesthereof.ItistruethatinCalalangvs.Williams(70Phil.726)
and People vs. Rosenthal (68 Phil. 328), this Court had upheld
"public welfare" and "public interest," respectively, as sufficient
standardsforavaliddelegationoftheauthoritytoexecutethelaw,
But, the doctrine laid down in these casesas all judicial
pronouncementsmustbeconstruedinrelationtothespecificfacts
andissuesinvolved'therein,outsideofwhichtheydonotconstitute
4
precedents and have no binding effect. The law construed in the
CalalangcaseconferredupontheDirectorofPublicWorks,withthe
approvaloftheSecretaryofPublicWorksandCommunications,the
power to issue rules and regulations to promote safe transit upon
nationalroadsandstreets.Upontheotherhand,theRosenthalcase
referred to the authority of the Insular Treasurer, under Act No.
2581, to issue and cancel certificates or permits for the sale of
speculativesecurities.Bothcasesinvolvedgrantsto.administrative
officers of powers related to the exercise of their administrative
functions,callingforthedeterminationofquestionsoffact.
Suchisnotthenatureofthepowersdealtwithinsection880As
aboveindicated,thecreationofmunicipalities,
_____________
4McGirrvs.Hamilton,30Phil.563Hebronvs.Reyes,L9124.July28,1958U.S.
vs.More,3Cranch159,172U.S.vs.Sanges,144U.S.310,319Crossvs.Burke,146
U.S.82LouisvilleTrustCo.vs.Knott,191 U.S. 225. See also, 15 C.J., 929940 21
C.J.S.297,29914Am.Jur.345.
580
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580
is not an administrative function, but one which is essentially and

eminently legislative in character. The question of whether or not
"public interest" demands the exercise of such power is notoneof
fact. It is "purely a legislative question "(CarolinaVirginia Coastal
Highwayvs.CoastalTurnpikeAuthority,74S.E.2d.310313,315
318), or a political question (Udall vs. Severn, 79 P. 2d. 347349),
AstheSupremeCourtofWisconsinhasaptlycharacterizedit,"the
question as to whether incorporation is for the best interest of the
community in any case is emphatically a question of public policy
and statecraft" (In re Village of North Milwaukee, 67 N.W. 1033,
10351037).
For this reason, courts of justice have annulled, as constituting
undue delegation of legislative powers, state laws granting the
judicial department the power to determine whether certain
territoriesshouldbeannexedtoaparticularmunicipality(Udallvs.
Severn, supra, 258359) or vesting in a Commission the right to
determine the plan and frame of government of proposed villages
and what functions shall be exercised by the same, although the
powersandfunctionsofthevillagearespecificallylimitedbystatute
(In re Municipal Charters, 86 Atl. 307308) or conferring upon
courtstheauthoritytodeclareagiventownorvillageincorporated,
and designate its metes and bounds, upon petition of a majority of
the taxable inhabitants thereof, setting forth the area desired to be
includedinsuchvillage(TerritoryexrelKellyvs.Stewart,28Pac.
405409)orauthorizingtheterritoryofatown,containingagiven
areaandpopulation,tobeincorporatedasatown,oncertainsteps,
beingtakenbytheinhabitantsthereofandoncertaindetermination
by a court and subsequent vote of the inhabitants in favor thereof,
insofar as the court is allowed to determine whether the lands
embracedinthepetition"oughtjustly"tobeincludedinthevillage,
andwhethertheinterestoftheinhabitantswillbepromotedbysuch
incorporation, and to enlarge and diminish the boundaries of the
proposed village "as justice may require" (In re Villages of North
Milwaukee, 67 N.W. 10351037) or creating a Municipal Board of
Control which shall 'determine whether or not the laying out,
construc
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tionoroperationofatollroadisinthe"publicinterest"andwhether
therequirementsofthelawhadbeencompliedwith,inwhichcase
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theboardshallenteranordercreatingamunicipalcorporationand
fixingthenameofthesame(CarolinaVirginiaCoastalHighwayvs.
CoastalTurnpikeAuthority,74S.E.2d.310).
Insofar as the validity of a delegation of power by Congress to
the President is concerned, the case of Schechter Poultry
Corporationvs.U.S.(79L.Ed.1570)isquiterelevanttotheoneat
bar.TheSchechtercaseinvolvedtheconstitutionalityofSection3of
theNationalIndustrialRecoveryActauthorizingthePresidentofthe
United States to approve "codes of fair competiton" submitted to
himbyoneormoretradeorindustrialassociationsorcorporations
which "impose no inequitable restrictions on admission to
membershipthereinandaretrulyrepresentative,"providedthatsuch
codes are not designed "to promote monopolies or to eliminate or
oppresssmallenterprisesandwillnotoperatetodiscriminateagainst
them,andwilltendtoeffectuatethepolicy"ofsaidAct.TheFederal
SupremeCourtheld:
"Tosummarizeandconcludeuponthispoint:Sec.3oftheRecoveryActis
without precedent. It supplies no standards for any trade, industry or
activity.Itdoesnotundertaketoprescriberulesofconducttobeappliedto
particular states of fact determined by appropriate administrative procedure.
Insteadofprescribingrulesofconduct,itauthorizesthemakingofcodesto
prescribethem.Forthatlegislativeundertaking,Sec.3setsupnostandards,
asidefromthestatementofthegeneralaimsofrehabilitation.correctionand
expansiondescribedinSec.1.Inviewofthescopeofthatbroaddeclaration,
and of the nature of the few restrictions that are imposed, the discretion of
the President in approving or prescribing codes, and thus enacting laws for
the government of trade and industry throughout the country, is virtually
unfettered. We think that the code making authority thus conferred is an un
constitutionaldelegationoflegislativepower."
If the term "unfair competition" is so broad as to vest in the

President a discretion that is "virtually unfettered." and,
consequently, tantamount to a delegation of legislative power, it is
obviousthat"publicwelfare,"whichhasevenabroaderconnotation,
leadstothesameresult.In
582
582
fact,ifthevalidityofthedelegationofpowersmadeinSection88
were upheld, there would no longer be any legal impediment to a
statutorygrantofauthoritytothePresidenttodoanythingwhich,in
his opinion, may be required by public welfare or public interest.
Suchgrantofauthoritywouldbeavirtualabdicationofthepowers
ofCongressinfavoroftheExecutive,andwouldbringaboutatotal
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collapse of the democratic system established by our Constitution,

whichitisthespecialdutyandprivilegeofthisCourttouphold.
Itmaynotbeamisstonotethattheexecutiveordersinquestion
were issued after the legislative bills for the creation of the
municipalities involved in this case had failed to pass Congress. A
better proof of the fact that the issuance of said executive orders
entails the exercise of purely legislative functions can hardly be
given.
Again, Section 10(1) of Article VII of our fundamental law
ordains:
"The President shall have control of all the executive departments, bureaus,
oroffices,exercisegeneralsupervisionoveralllocalgovernmentsasmaybe
providedbylaw,andtakecarethatthelawsbefaithfullyexecuted."
The power of control under this provision implies the right of the
President to interfere in the exercise of such discretion as may be
vestedbylawintheofficersoftheexecutivedepartments,bureaus,
orofficesofthenationalgovernment,aswellastoactinlieuofsuch
officers.Thispoweris,deniedbytheConstitutiontotheExecutive,
insofar as local governments are concerned. With respect to the
latter,thefundamentallawpermitshimtowieldno more authority
thanthatofcheckingwhethersaidlocalgovernmentsortheofficers
thereof perform their duties as provided by statutory enactments.
Hence, the President cannot interfere with local governments, so
long as the same or its officers act within the scope of their
authority, He may not enact an ordinance which the municipal
councilhasfailedorrefusedtopass,evenifithadtherebyviolateda
duty imposed thereto by law, although he may see to it that the
corresponding provincial officials take appropriate disciplinary
actiontherefor.
583
583
Neithermayhevote,setasideorannulanordinancepassedbysaid
councilwithinthescope of its jurisdiction, no matter how patently
unwiseitmaybe.Hemaynotevensuspendanelectiveofficialofa
regular municipality or take any disciplinary action against him,
except5 on appeal from a decision of the corresponding provincial
board.
Upontheotherhand,ifthePresidentcouldcreateamunicipality,
he could, in effect, remove any of its officials, by creating a new
municipality and including therein the barrio in which the official6
concerned resides, for his office would thereby become vacant,
Thus,bymerelybrandishingthepowertocreateanewmunicipality
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(if he had it), without actually creating it, he could compel local
officialstosubmittohisdictation,thereby,ineffect,exercisingover
themthepowerofcontroldeniedtohimbytheConstitution.
Then,also,thepowerofcontrolofthePresidentoverexecutive
departments,bureausorofficesimpliesnomorethantheauthorityto
assumedirectlythefunctionsthereofortointerfereintheexercise
of discretion by its officials. Manifestly, such control does not
include the authority either to abolish an executive department or
bureau,ortocreateanewone.Asaconsequence,theallegedpower
ofthePresidenttocreatemunicipalcorporationswouldnecessarily
connotetheexercisebyhimofanauthorityevengreaterthanthatof
control which he has over the executive departments, bureaus or
offices. In other words, Section 68 of the Revised Administrative
Codedoesnotmere
_____________
5Hebronvs.Reyes,L9124,July28,1958Mondanovs.Silvosa,51Off.Gaz.2884
Rodriguez vs. Montinola, 50 Off. Gaz, 4820 Querubin vs. Castro, L9779, July 31,
1958.
6PursuanttoSection2179oftheRevisedAdministrativeCode:
"Whenapart01abarrioisdetachedfromamunicipalitytoformanewmunicipalityortobe
added to an existing municipality, any officer of the old municipality living in the detached
territorymaycontinuetoholdhisofficeandexertthefunctionsthereoffortheremainderof
his term but if he is resident of a barrio the whole of which is detached, his office shall be
deemedtobevacated"
584
584
ly fail to comply with the constitutional mandate above quoted.

Instead of giving the President less power over local governments
than that vested in him over the executive departments, bureaus or
offices, it reverses the pro cess and does the exact opposite, by
conferring upon him more power over municipal corporations than
that which he has over said executive departments, bureaus or
offices.
In short, even if it did entail an undue delegation of legislative
powers,asitcertainlydoes,saidSection68,aspartoftheRevised
AdministrativeCode,approvedonMarch10,1917,mustbedeemed
repealed by the subsequent adoption of the Constitution, in 1935,
which is utterly
incompatible and inconsistent with said statutory
7
enactment.
Thereareonlytwo(2)otherpointsleftforconsideration,namely,
respondent'sclaim(a)that"notalltheproperparties"referringto
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the officers of the newly created municipalities"have been

impleaded in this case," and (b) that "the present petition is
premature/'
Asregardsthefirstpoint,sufficeittosaythattherecordsdonot
show,andthepartiesdonotclaim,thattheofficers,ofanyofsaid
municipalities have been appointed or elected and assumed office.
At any rate, the Solicitor General. who has appeared on behalf of
respondentAuditorGeneral,istheofficerauthorizedbylaw"toact
and represent the Government of the Philippines, its offices and
agents, in any official investigation, proceeding or matter requiring
the services of a lawyer" (Section 1661, Revised Administrative
Code), and, in connection with the creation of the aforementioned
municIpalities,whichinvolvesapolitical,notproprietary,function,
saidlocalofficials,ifany,aremereagentsorrepresentativesofthe
national government. Their interest in the
case at bar has,
8
accordingly,been,ineffect,dulyrepresented.
Withrespecttothesecondpoint,respondentallegesthat
______________
7DelosSantosvs.Mallare,87Phil,289,298299.
8Mangubatvs.Osmea,Jr.,L12837,April20,1959CityofCebuvs.JudgePiccio.
L13012&L14876,December31,1960,
585
585
he has not as yet acted on any of the executive orders in question

andhasnotintimatedhowhewouldactinconnectiontherewith.It
is, however, a matter of common, public knowledge, subject to
judicial cognizance, that the President has, for many years, issued
executive orders creating municipal corporations and that the same
havebeenorganizedandinactualoperation,thusindicating,without
peradventureofdoubt,thattheexpendituresincidentaltheretohave
been sanctioned, approved or passed in audit by the General
Auditing Office and its officials. There is no reason to believe,
therefore,thatrespondentwouldadoptadifferentpolicyasregards
the new municipalities involved in this case, in the absence of an
allegationtosucheffect,andnonehasbeenmadebyhim
WHEREFORE, the Executive Orders in question are hereby
declared null and void ab initio and the respondent permanently
restrainedfrompassinginauditanyexpenditureofpublicfundsin
implementationofsaidExecutiveOrdersoranydisbursementbythe
municipalitiesabovereferredto.Itissoordered.
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Bengzon,C.J.,BautistaAngelo,Reyes,J.B.L.,Barrera and
Dizon,JJ.,concur.
Zaldivar,J.,tooknopart.
Bengzon,J.P.,J.,concursanddessentsisaseperateopinion.
Makalintal and Regala, JJ., concur with the opinion of
JusticeJ.P.Bengzon.
BENGZON,J.P.,J.,concurringanddissenting:
A sign of progress in a developing nation is the rise of new
municipalities. Fostering their rapid growth has long been the aim
pursuedbyallthreebranchesofourGovernment.
SoitwasthattheGovernorGeneralduringthetimeoftheJones
Law was given authority by the Legislature (Act No. 1748) to act
uponcertaindetailswithrespecttosaidlocalgovernments,suchas
fixing of boundaries, subdivisions and mergers. And the Supreme
Court,withintheframeworkoftheJonesLaw,ruledin1917thatthe
exec
586
586
utionorimplementationofsuchdetails,didnotentailabdicationof
legislativepower(Governmentvs.MunicipalityofBinangonan,34
Phil.518Municipality,ofCardonavs.MunicipalityofBinagonan,
36 Phil. 547). Subsequently, Act No. 1748's aforesaid statutory
authorization was embodied in Section 68 of the Revised
Administrative Code. And Chief Executives since then up to the
presentcontinuedtoavailofsaidprovision,timeandagaininvoking
it to issue executive orders providing for the creation of
municipalities.
FromSeptember4,1964toOctober29,1964thePresidentofthe
Philippines issued executive orders to create thirtythree
municipalitiespursuanttoSection68oftheRevisedAdministrative
Code.Publicfundstherebystoodtobedisbursedinimplementation
ofsaidexecutiveorders.
Suingasprivatecitizenandtaxpayer,VicePresidentEmmanuel
PelaezfiledinthisCourtapetitionforprohibitionwithpreliminary
injunction against the Auditor General. It seeks to restrain the
respondentoranypersonactinginhisbehalf,frompassinginaudit
anyexpenditureofpublicfundsinimplementationoftheexecutive
ordersaforementioned.
Petitioner contends that the President has no power to create a
municipality by executive order. It is argued that Section 68 of the
RevisedAdministrativeCodeof1917,sofarasitpurportstogrant
anysuchpower,isinvalidor,attheleast,alreadyrepealed,inlight
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of the Philippine Constitution and Republic Act 2370 (The Barrio

Charter),
Section68isagainreproducedhereunderforconvenience:
"SEC. 68. General authority of [GovernorGeneral] President of the
Philippines to fix boundaries and make new subdivisions.The[Governor
General] President of the Philippines may by executive order define the
boundary, or boundaries, of any province, subprovince, municipality,
[township]municipaldistrict,orotherpoliticalsubdivision,andincreaseor
diminishtheterritorycomprisedtherein,maydivideanyprovinceintooneor
moresubprovinces,separateanypoliticaldivisionotherthanaprovince,into
suchportionsasmayberequired.
587
587
merge any of such subdivisions or portions with another, name any new
subdivision so created, and may change the seat of government within any
subdivision to such place therein as the public welfare may require:
Provided,Thattheauthorizationofthe[PhilippineLegislature]Congressof
thePhilippinesshallfirstbeobtainedwhenevertheboundaryofanyprovince
orsubprovinceistobedefinedoranyprovinceistobedividedintooneor
moresubprovinces.Whenactionbythe[GovernorGeneral]Presidentofthe
Philippinesinaccordanceherewithmakesnecessaryachangeoftheterritory
underthejurisdictionofanyadministrativeofficeroranyjudicialofficer,the
[GovernorGeneral] President of the Philippines, with the recommendation
and advice of the head of the Department having executive control of such
officer,shallredistricttheterritoryoftheseveralofficerstothenewdistricts
soformed.
"Uponthechangingofthelimitsofpoliticaldivisionsinpursuanceofthe
foregoingauthority,anequitabledistributionofthefundsandobligationsof
the divisions thereby affected shall be made in such manner as may be
recommendedbythe[InsularAudtior]AuditorGeneralandapprovedbythe
[GovernorGeneral]PresidentofthePhilippines."
FromsuchworkingIbelievethatpowertocreateamunicipalityis
included: to "separate any political division other than a province,
intosuchportionsasmayberequired,mergeanysuchsubdivisions
orportionswithanother,nameanynewsubdivisionsocreated."The
issue,however,iswhetherthelegislaturecanvalidlydelegatetothe
Executivesuchpower,
The power to create a municipality is legislative in character.
Americanauthoritieshavethereforefavoredtheviewthatitcannot
be delegated that what is delegable is not the power to create
municipalitiesbutonlythepowertodeterminetheexistenceoffacts
underwhichcreationofamunicipalitywillresult(37Am.Jur.628).
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Thetestissaidtolieinwhetherthestatuteallowsanydiscretion
on the delegate as to whether the municipal corporation should be
created,Ifso,thereis an attempted delegation of legislative power
andthestatuteisinvalid(Ibid.).NowSection68nodoubtgivesthe
President such discretion, since it says that the President "may by
executive order" exercise the powers therein granted. Furthermore,
Section5ofthesameCodestates:
588
588
"SEC. 5. Exercise of administrative discretion.The exercise of the

permissive powers of all executive or administrative officers and bodies is
based upon discretion, and when such officer or body is given authority to
do any act but not required to do such act, the doing of the same shall be
dependent on a sound discretion to be exercised for the good of the service
and benefit of the public, whether so expressed in the statute giving the
authorityornot"
UndertheprevailingruleintheUnitedStatesandSection68isof
American originthe provision in question would be an invalid
attempt to delegate purely legislative powers, contrary to the
principleofseparationofpowers.
ItisverypertinentthatSection68shouldbeconsideredwiththe
stream of history in mind. A proper knowledge of the past is the
only adequate background for the present. Section 68 was adopted
halfacenturyago.Politicalchange,twoworldwars,therecognition
ofourindependenceandrightfulplaceinthefamilyofnations,have
sincetakenplace.In1917thePhilippineshadforitsOrganicActthe
Jones Law. And under the setup ordained therein 110 strict
separationofpowerswasadheredto.Consequently,Section68was
notconstitutionallyobjectionableatthetimeofitsenactment.
The advent of the Philippine Constitution in 1935 however
alteredthesituation.Fornotonlywasseparationofpowersstrictly
ordained,exceptonlyinspecificinstancesthereinprovided,butthe
power of the Chief Executive over local governments suffered an
explicitreduction.
Formerly, Section 21 of the Jones Law provided that the
GovernorGeneral"shallhavegeneralsupervisionandcontrolofall
the departments and bureaus of the government in the Philippine
Islands," Now Section 10 (1), Article VII of the Philippine
Constitution provides: "The President shall have control of all the
executive departments, bureaus, or offices. exercise general
supervisionoveralllocalgovernmentsasmaybeprovidedbylaw,
andtakecarethatthelawsbefaithfullyexecuted.
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In short, the power of control over local governments had now

beentakenawayfromtheChiefExecutive.Again,
589
589
tofullyunderstandthesignificanceofthisprovision,onemusttrace
itsdevelopmentandgrowth.
As early as April 7, 1900 President McKinley of the United
States,inhisInstructionstotheSecondPhilippineCommission,laid
downthepolicythatourmunicipalgovernmentsshouldbe"subject
to the least degree of supervision and control" on the part of the
national government. Said supervision and control was to be
confinedwithinthe"narrowestlimits"orsomuchonlyas"maybe
necessarytosecureandenforcefaithfulandefficientadministration
bylocalofficers/'Andthenationalgovernment"shallhavenodirect
administration except of matters of purely general concern." (See
Hebronv.Reyes,L9158,July28,1958.)
Allthishadoneaim,toenabletheFilipinostoacquireexperience
intheartofselfgovernment,withtheendinviewoflaterallowing
them to assume complete management and control of the
administration of their local affairs. Such aim is the policy now
embodied in Section 10(1), Article VII of the Constitution
(Rodriguezv.Montinola,50O.G.4820).
It is the evident decree of the Constitution, therefore, that the
President shall have no power of control over local governments.
Accordingly,Congresscannotbylawgranthimsuchpower(Hebron
v. Reyes, supra). And any such power formerly granted under the
Jones Law thereby became unavoidably inconsistent with the
PhilippineConstitution.
Itremainstoexaminetherelationofthepowertocreateandthe
power to control local governments. Said relationship has already
beenpasseduponby this Court in Hebron v. Reyes,supra,Insaid
case, it was ruled that the power to control is an incident of the
power to create or abolish municipalities, Respondent's view
therefore, that creating municipalities and controlling their local
governments are "two worlds apart," is untenable. And since as
stated, the power to control local governments can no longer be
conferredonorexercisedbythePresident,itfollowsafortiorithat
the power to create them, all the more cannot be so conferred or
exercised.
590
590
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I am compelled to conclude, therefore, that Section 10(1), Article

VII of the Constitution has repealed Section 68 of the Revised
Administrative Code as far as the latter empowers the President to
create local governments. Repeal by the Constitution of prior
statutes inconsistent with it has already been sustained in De los
Santos v. Mallare, 87 Phil. 289. And it was there held that such
repealdiffersfromadeclarationofunconstitutionalityofaposterior
legislation, so much so that only a majority vote of the Court is
neededtosustainafindingofrepeal.
SincetheConstitutionrepealedSection68asfarbackas1935,it
is academic to ask whether Republic Act 2370 likewise has
provisionsinconflictwithSection68soastorepealit.Sufficeitto
state, at any rate, that statutory prohibition on the President from
creating a barrio does not, in my opinion, warrant the inference of
statutory prohibition for creating a municipality. For although
municipalitiesconsistofbarrios,thereisnothinginthestatutethat
would preclude creation of new municipalities out of preexisting
barrios.
It is not contrary to the logic of local autonomy to be able to
createlargerpoliticalunitsandunabletocreatesmallerones.Foras
long ago observed in President McKinley's instructions to the
SecondPhilippineCommission,greaterautonomyistobeimparted
tothesmallerofthetwopoliticalunits.Thesmallertheunitoflocal
government, the lesser 'is the need for the national government's
intervention in its political affairs. Furthermore, for practical
reasons, local autonomy cannot be given from the to? downwards.
Thenationalgovernment.insuchacase,couldstillexercisepower
over the supposedly autonomous unit, e.g., municipalities, by
exercising it over the smaller units that comprise them, e.g., the
barrios. A realistic program of decentralization therefore calls for
autonomy from the bottom upwards, so that it is not surprising for
Congresstodenythenationalgovernmentsomepoweroverbarrios
without denying it over municipalities. For this reason, I disagree
withthemajorityviewthatbecausethePresidentcouldnotcreatea
barrio under Republic Act 2370, a fortiori he cannot create a
municipality.
591
591
Itismyview,therefore,thattheConstitution,andnotRepublicAct
2370, repealed Section 68 of the Revised Administrative Code's
provisiongivingthePresidentauthoritytocreatelocalgovernments.
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And for this reason I agree with the ruling in the majority opinion
thattheexecutiveordersinquestionarenullandvoid.
In thus ruling, the Court is but sustaining the fulfillment of our
historicdesiretobefreeandindependentunderarepublicanformof
government, and exercising a function derived from the very
sovereigntythatitupholds,
Executiveordersdeclarednullandvoid.
ANNOTATION
CREATIONOFMUNICIPALITIES
Historical Background of the Power of Creating Municipalities in
thePhilippines.
During the Spanish regime the procedure of the creation of
municipalities has been prescribed by the Leyes de las Indias
(RomanCatholicBishopofJarovs.DirectorofLands,34Phil.528
seealsoLawVIII,TitleVII,BookIVofRecopilacindeLeyesde
losReynosdelasIndias).
In the case of Catbalogan vs. Director of Lands, 17 Phil., 214,
the Court took cognizance of the procedure for the formation of
townsduringtheSpanishregime,Executiveauthoritiesandofficials
whothenrepresentedtheSpanishgovernmentwereobligedtoadjust
theirproceduresinthefulfillmentoftheirdutieswithregardtothe
establishment and laying out of new towns to the Leyes de las
Indias.
An Ayuntamiento corresponds to the English term municipal
corporationandthemunicipalgovernmentintheIslandsfallsshort
of being such a corporation (Government of the Philippine Islands
vs. Abadilla, 46 Phil. 842 see also Roman Catholic Church vs.
MunicipallyofCebu,31Phil.517).
592
592
TheunitoflocaladministrationduringtheSpanishregimewasthe
"pueblo" which ordinarily embraces an area of. many square miles
andcontainednumerousbarriosorvillages.
HistoricalBackgroundundertheAmericanRegime.
ThelawgoverningmunicipalitieswasfirstprovidedforinGeneral
Order No. 43, Series of 1899. This law was followed by General
OrderNo.40,Seriesof1900promulgatedbytheMilitaryGovernor.
President it William McKinley's Instructions to the Second
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PhilippineCommissionalsostressedtheimportanceofthecreation
ofmunicipalgovernments.
The Philippine Commission forthwith enacted Act No. 82 on
January31,1901providingfortheorganizationandgovernmentof
municipalities.ActNo.88waspassedonFebruary5,1901forthe
organizationoftheprovinces.Thelawonprovincialandmunicipal
governments were embodied in Chapters 56, 57, 64 and 67 of the
RevisedAdministrativeCode.
ThePowertoCreateCorporationsisEssentiallyLegislative.
Thepowerofthemunicipalcorporationisessentiallylegislativein
nature.Thepowerisexclusiveandalmostunlimited.Intheabsence
of any constitutional limitations, a legislative body may create any
corporation it deems essential for the more efficient administration
of the government (I McQuillin, Municipal Corporations, 3rd ed.,
50919R.C.L.section2).
The legislative power to create municipal corporations may not
be delegated (Cooley, Municipal Corporations, p. 30), The
delegation, if at all, may be made if the legislature imposes
conditionsonwhichthemunicipalcorporationmaybecreated.The
legislative may prescribe standards for guidance and authorize an
agencytodeterminefactsonwhichthestatutemaybeimplemented
forthecreationofsuchcorporation.
Insomejurisdictions,ithasbeenheldthatthelegislative
593
593
body may vest in a court the power to determine when the

incorporation of the community is necessary or useful or to
determine the extent and boundary of such corporations. (I
McQuillin,MunicipalCorporations,3rdEd.,p.505).Usually,inthe
creationofmunicipalcorporationstheconditionsneededinorderto
obtain its incorporation as a city or town are prescribed. Such
conditions may indicate the extent of the area proposed to
incorporate,thenatureoftheterritory,thecharacterofthelandsand
theusestowhichitmaybedevoted,thenumberofinhabitantsand
even the density and location of the area to be incorporated (I
McQuillin,MunicipalCorporations,p.531).
The Nature of the Power to Create Municipal Corporation in the
Philippines.
The power to create corporation including municipal corporation
resides in the Congress of the Philippines. Such power included in
the general legislative power of Congress states: "The legislative
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power shall be vested in a Congress of the Philippines which shall

consistofaSenateandaHouseofRepresentatives"(ArtVI,Section
1, Constitution of the Philippines Tiacovs.Forbes, 228 U.S. 549
Asuncionvs.Yriarte,37Phil.67).
Under this authority, Congress may enact laws creating
provinces, subprovinces, cities, municipalities, municipal districts,
barrios and other local entities. It may group into one area those
whicharealreadyexisting.Itmaysubdividethemintoseveralother
local areas. It may abolish them. There is no limitation upon Its
power except the provisions of Art. VII, Section 1 of the
Constitution(Aruego,LawonMunicipalGovernment, 1968 Ed., p.
37),
TheProvincialBoardmayalsoorganizebarriosunderRepublic
Act No. 2370. See also Republic Act No. 2264, June 19, 1959,
RepublicActNo,5185andRepublicActNo.1205.Fororganization
of municipalities, see Section 2170 of the Revised Administrative
CodeasamendedbyRepublicActNo.2368.
594
594
The Nature of the Legislative Power to Create the Area For Local
Government.
The legislative power to create an area of the local government
involvestwothings:(1)thedeterminationofwhetheralocalarea
shall be created or not (2) the determination of whether said
decisionshallhavetheforceoflaw.Toleavethedecisiontoanother
agency or person to create or not to create and to determine the
conditions under which he would create, or to have discretion
whether to follow or not to follow the rule laid down in the law,
would be undue delegation of legislative power (Aruego, op. cit.,
1968Ed.,p.37).
There would be no unlawful delegation of legislative power to
create the area when the legislative power determines by law the
conditions under which the local area may be created. Not leaving
this or some of them to be determined by another agency of the
government. It 10 not unlawf ul delegation of legislative power to
createwhentheagencyhastheauthoritytocarryouttheprovisions
ofthelawandthediscretionisonlyastothemannerofexecuting
thelaw(Id.).
CreationofBarriosbyAuthorityofLaw.
UndertheRevisedBarrioCharter(RepublicActNo.3590)barrios
maybecreateddirectlybythelawmakingbody,oracreationofthe
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same may be caused by another agency (Sec. 3, Republic Act No.

3590).TheBarrioCharterLawdoesnotgivetheuncontrolledpower
to determine whether or not to create the barrio and the conditions
under which such barrio should be created because the law has set
forthspecificconditions(Aruego,Id.).
ConstitutionalValidityofCreationunderAdministrativeCodebythe
Executive.
BeforetheeffectivityoftheAdministrativeCodeof1918,Act1748
was passed authorizing the Governor General of the Philippines to
make adjustment of provincial and municipal boundaries and the
changeofcapitalsof
595
595
provinces from time to time to serve the public convenience and

interest
TheSupremeCourtoverruledthecontentionthattheactwasan
unduedelegationoflegislativepower.TheSupremeCourtruled:
"The delegation of the power referred to on the Governor General does not
involve an abdication of legislative functions on the part of the legislature
with regard to the particular subject matter with which it authorizes the
Governor General to deal. It is simply a transference of certain details with
respect to provinces, municipalities, and townships, many of them newly
created, and all of them subject to more or less rapid change both in
developmentandcenterofpopulation,theproperregulationofwhichmight
requirenotonlypromptactionbutactionofsuchadetailedcharacterasnot
to permit the legislative body, as such, to take it efficiently." (Cardonavs.
Binagonan,36Phil.547).
TheSupremeCourtlikewiseupheldtheconstitutionallegalityofan
executiveorderoftheGovernorGeneralinredefiningtheboundary
between the municipalities of Cardona and Binagonan
(Government of the P.I. vs. Municipality of Binagonan, 35 Phil.
518).
Section 68 of the Revised Administrative Code of 1917 was
enacted.
"SEC. 68. General Authority of the (Governor General) President of the
Philippines to fix boundaries and make new subdivisions.The Governor
General(nowPresidentofthePhilippines)maybyexecutiveorderdefinethe
boundary, or boundaries, of any province, subprovince, municipality,
(township)municipaldistrict(SeeAct27824),orotherpoliticalsubdivision,
and increase or diminish the territory comprised therein, may divide any
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provinceintooneormoresubprovinces,separateanypoliticaldivisionother
than a province, into such portions as may be required, merge any of such
subdivisionsorportionswithanother,nameanynewdivisionsocreated,and
may change the seat of government within any subdivision into such place
thereinasthepublicwelfaremayrequire:Provided.Thattheauthorizationof
the Philippine Legislature (now Congress of the Philippines) shall first be
obtained whenever the boundary of any province or subprovince is to be
definedoranyprovinceistobedividedintooneormoresubprovinces.xx
x."
TheGovernorsGeneralandlaterthePresidentsofthe
596
596
Philippinescreateseveralmunicipalitiesunderthissection.Thislaw
practically gave uncontrolled discretion to the executive to create
newareasasmunicipalitiesandisofdoubtfullegality,Forcaseson
delegationoflegislativepowersasvalidstandardsfordelegationof
power,seePeoplevs.LimHo,L120912,January28,1960People
vs.Jolliffe,L9553,May13,1959Peoplevs.Vera,65Phil.56U.S.
vs. Ang Tang Ho, 43 Phil. 1 Compaia General de Tabacos vs.
BoardofPublicUtility,34Phil.136MutualFilmCo.vs.Industrial
Commission, 236 U.S. 247, 59 L. Ed. 561 Mutual Film Corp. vs.
Industrial Commission, 236 U.S. 230, 59 L. Ed. 552 Pamana
Refining Co. vs. Ryan, 293 U.S. 388, 79 L. Ed. 446 A.L.A.
SchechterPoultryCorp.vs.U.S.,295U.S.79L.Ed.1570,U.S.vs.
Rock Royal Coop., 307 U.S. 533, L. Ed. 1446 Bowles vs.
Willingham,321,U.S.503, 88 L. Ed. 892 Araneta vs. Gatmaitan,
L8895,April30,1957Cervantesvs.AuditorGeneral,L4043,May
30,1952Phil. Association of Colleges vs. Secretary of Education,
51Off.Gaz.6230Peoplevs.Arnault.48Off.Gaz,4805Antamok
Gold Fieldvs. CIR. 68 Phil. 340 U.S. vs. Barrias, 11 Phil. 327
Yajusvs.White,821U.S.414Ammannvs.Mailonce,332U.S.245.
Section68oftheRevisedAdministrativeCodehasbeendeclared
unconstitutional in the case of Pelaez vs. Jimenez, G.R. No. L
23825.December24,1965.TheSupremeCourtthusreiteratedthef
undamental principle that the creation of municipal corporations is
legislativeinnature.
Moreover,Section3ofRepublicActNo.2370whichtookeffect
onJanuary1,1960providedthatbarriosmaynotbecreatedortheir
boundaries altered except by act of Congress or by the
correspondingprovincialboarduponpetitionofthemajorityofthe
voters in the area affected and the recommendation of the
municipalityinwhichtheproposedbarriosaresituated.Ifunderthis
new law the President cannot create a barrio, he cannot create
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municipalitieswhicharecomposedofseveralbarrios(SeeRepublic
ActNo.5185).
Forcreationofbarrios,seeRevisedBarrioCharter(RepublicAct
No.3590).JUDGEJORGECOQUIA
597
597
ANNOTATION
VALIDDELEGATIONOFLEGISLATIVEPOWER
I.Principleofseparationofpowers.
Theseparationofpowersisafundamentalprincipleinoursystemof
government. It obtains not through express provision but by actual
divisioninourConstitution.Eachdepartmentofthegovernmenthas
exclusive cognizance of matters within its jurisdiction and is
supremewithinitsown sphere.(Angara vs. Electoral Commission,
etal.,63Phil.139).
II.Constitutionalprovisionsonseparationofpowers.
The Legislative power shall be vested in a Congress of the
Philippines which shall consist of a Senate and a House of
Representatives.(ArticleVI,Sec,I,Phil.Constitution).
The Executive power shall be vested in a President of the
Philippines.(Art.VII,Sec.1,Phil.Constitution).
TheJudicialpowershallbevestedinoneSupremeCourtandin
suchinferiorcourtsasmaybeestablishedbylaw.(Art.VIII,Sec.1,
Phil.Constitution).
The Government of the United States in the Philippines is one
whose powers have been carefully apportioned between three
distinct departments which have their powers alike, limited and
defined,andareofequaldignityand,withintheirrespectivespheres
ofaction,equallyindependent.(Abuevavs.Wood,46Phil.613).
III.Importanceoftheprinciple.
It has been said that the principle of separation of powers of
government is fundamental to the very existence of every
constitutionalgovernment.Itrepresentsthemostimportantprinciple
ofgovernmentdeclaringandguaranteeingthelibertiesofthepeople.
(Am. Jur. 182) Under our constitutional system, the powers of
government are distributed among three coordinate and
substantially independent organs: the legislative, the executive and
the
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598
598
judicial. Each of these departments of the government derives its

authority from the Constitution, which, in turn, is the highest
expressionofthepopularwill.Eachhasexclusivecognizanceofthe
matterswithinthejurisdictionandissupremewithinitsownsphere.
(Peoplevs.Vera,65Phil.63).
BytheorganiclawofthePhilippineIslandsandtheConstitution
of the United States, all powers are vested in the Legislature,
ExecutiveandJudiciary,ItisthedutyoftheLegislaturetomakethe
lawoftheExecutivetoexecuteandoftheJudiciarytoconstruethe
law.TheLegislaturehasnoauthoritytoexecuteorconstruethelaw
theExecutivehasnoauthoritytomakeorconstruethelawandthe
judiciaryhasnopowertomakeorexecutethelaw.Subjecttothe
Constitution only, the power of each branch is supreme within its
ownjurisdiction,anditisforthejudiciaryonlytosaywhenanyAct
oftheLegislatureisorisnotconstitutional.(U.S.vs.AngTangHo,
48Phil.1).
IV.Scopeoftheprincipleofseparationofpowers.
The three departments of the government are coordinate, co
important,coequalandindependentofeachotherthateachofthe
severaldepartmentsofthegovernmentderivesitsauthoritydirectly
or indirectly from the people and is responsible to them that each
hasexclusivecognizanceofthematterswithinitsjurisdictionandis
supreme within its own sphere. In the exercise of the powers of
government assigned to them severally, the departments operate
harmoniouslyandindependentlyoftheothersandtheactionofany
oneofthemintheexerciseofitspowersisnotsubjecttothecontrol
by either of the others. (Province of Tarlac vs. Gale, 26 Phil. 338
Barcelonavs.Baker,5Phil.87).
V.Principleofchecksandbalances.
Itdoesnotfollowfromthefactthatthethreepowersaretobekept
separate and distinct that the Constitution intended them to be
absolutely unrestrained and independent of each other. The
Constitutionhasprovidedfor
599
599
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theelaboratesystemofchecksandbalancestosecurecoordination
in the workings of various departments of the government For
example,theChiefExecutiveunderourConstitutioninsofarmade
a check on the Legislative power that his assent is required in the
enactmentoflaws.This,however,issubjecttothefurthercheckthat
abillmaybecomealawnotwithstandingtherefusalofthePresident
toapproveit,byavoteoftwothirdsorthreefourthsasthecasemay
be, of the National Assembly. The President has also the right to
convenetheAssemblyinspecialsessionwheneverhechooses,On
the other hand, the National Assembly operates as a check on the
Executive in the sense that its consent through the Commission on
Appointments is necessary in the appointment of certain officers
andtheconcurrenceofamajorityofallitsmembersisessentialto
the conclusion of treaties. Furthermore, in Its power to determine
what courts, other than the Supreme Court shall be established, to
definetheirjurisdictionandtoappropriatefundsforthesupport,the
National Assembly exercises to a certain ,extent control over the
judicial power of trying impeachments and the judiciary in turn,
with the Supreme Court as the final arbiter, effectively checks the
otherdepartmentsintheexerciseofitspowertodeterminethelaw,
andhence,todeclareexecutiveandlegislativeactsvoidifviolative
oftheConstitution.(Angaravs.ElectoralCommission,supra).
VI.Principleofnondelegationofpowers.
The maxim of Constitutional law forbidding the delegation of
legislative power should be zealously protected. "The true
distinction, therefore, is between the delegation of power to make
thelaw,whichnecessarilyinvolvesadiscretionastowhatitshallbe
and conferring authority or discretion as to its execution, to be
exercised under and in pursuance of the law. The first cannot be
donetothelatternovalidobjectioncanbemade."(Cincinnati,W.
& Z. R. Co. vs. Comrs. Clinton County, 1 Ohio St. 88) Rubi vs.
ProvinceofMindoro,39Phil.662.
Thus,anActofthePhilippineLegislaturegivingtotheBoardof
PublicUtilityCommissionerspowertorequire
600
600
public utility "to furnish annually a detailed report of finances and

operations, in such form and containing such matters as the Board
mayfromtimetotimebyorderprescribe"isinvalidforthereason
that it is a delegation of legislative power to the Board of Public
UtilityCommissionersandisinviolationoftheActofJuly1,1902.
(Compaia General de Tabacos de Filipinas vs. Board of Public
UtilityCommissioners,34Phil.137).
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VII.Delegationoflegislativepowerhistoricaldevelopment.
The power to make lawsthe legislative poweris vested in a
bicameral Legislature by the Jones Law and in a unicameral
National Assembly by the Constitution. The Philippine Legislature
or the National Assembly may not escape Its duties and
responsibilities by delegating that power to any other body or
authority.Anyattempttoabdicatethepowerisunconstitutionaland
void, on the principle that potestas delegata, non delegare potest.
This principle is said to have originated with the glossators, was.
introducedintoEnglish,lawthroughamisreadingofBracton,there
developedasaprincipleofagency,wasestablishedbyLordCokein
the English public law in decisions forbidding the delegation of
judicial power, and found its way into America as an enlightened
principle of free Government. It has since become an accepted
corollaryoftheprincipleofseparationofpowers.(Peoplevs.Vera,
supra).
VIII.Exceptionstotheprincipleofnondelegation.
Therule,however,whichforbidsthedelegationoflegislativepower
isnotabsoluteandinflexible,Itadmitsofexceptions,Anexception
sanctioned by immemorial practice permits the central legislative
bodytodelegatelegislativepowertolocalauthorities.Onquitethe
same principle, Congress is empowered to delegate legislative
power to such agencies in the territories of the United States as it
mayselect.Courtshavealsosustainedthedelegationoflegislative
powerstothepeopleatlarge,thoughsomeauthoritiesmaintainthat
this may not be done, Doubtless, also, legislative power may be
delegatedbythe
601
601
Constitution itself. Section 14, paragraph 2 of Article VI of the

ConstitutionofthePhilippinesprovidesthat"theNationalAssembly
maybylawauthorizethePresident,subjecttosuchlimitationsand
restrictions as it may impose, to fix within specified limits, tariff
rates,importorexportquotas,andtonnageandwharfagedues."In
times of war or other national emergency, the National Assembly
maybylawauthorizethePresident,foralimitedperiodandsubject
to such restrictions as it may prescribe, to promulgate rules and
regulationstocarryoutadeclarednationalpolicy.(Peoplevs.Vera,
supra).
Theprovisionofsection1ofCommonwealthActNo.548does
notconferlegislativepowerupontheDirectorofPublicWorksand
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theSecretary01PublicWorksandCommunications.Theauthority
conferred upon them and under which they promulgated the rules
andregulationsnowcomplainedofisnottodeterminewhatpublic
policy demands but merely to carry out the legislative policy laid
downbytheNationalAssemblyinsaidAct,towit,topromotesafe
transit upon, and avoid obstruction on roads and streets designated
as national roads by Acts of the National Assembly and to close
them temporarily to any or all classes of traffic "whenever the
condition of the road or the traffic thereon makes such action
necessaryoradvisableinthepublicconvenienceandinterest."The
delegatedpower,ifatall,therefore,isnotthedeterminationofwhat
the law shall be, but merely the ascertainment of the facts and
circumstances upon which the application of said law is to be
predicated.(Calalangvs.Williams,70Phil.726).
IX.Testsofunduedelegation.
In testing whether a statute constitutes an undue delegation of
legislativepowerornot,itisusualtoinquirewhetherthestatutewas
completeinallitstermsandprovisionswhenitleftthehandsofthe
legislature so that nothing is left to the judgment of any other
appointeeordelegateofthelegislature.InU.S.vs.AngTangHo(43
Phil. 1) the Supreme Court adhered to the foregoing rule. The
generalrule,however,islimitedbyanother
602
602
rulethattoacertainextentmattersofdetailmaybelefttobefilled
in by rules and regulations to be adopted or promulgated by
executiveofficersandadministrativeboards.Asarule,anactofthe
legislatureisincompleteandhence,invalidifitdoesnotlaydown
by any rule or definite standard by which the administrative board
maybeguidedintheexerciseofthediscretionarypowersdelegated
toit.(Peoplevs.Vera,supra).
Inonecase,appellantsarguethat,whileActNo.2581empowers
the Insular Treasurer to issue and cancel certificates or permits for
thesaleofspeculativesecurities,nostandardorruleisfixedinthe
Actwhichcanguidesaidofficialindeterminingthecasesinwhicha
certificateorpermitoughttobeissued,therebymakinghisopinion
the sole criterion in the matter of its issuance, with the result that
legislative powers being unduly delegated to the Insular Treasurer,
ActNo.2581isunconstitutional.TheCourtisoftheopinionthatthe
ActfurnishesasufficientstandardfortheInsularTreasurertofollow
in reaching a decision regarding the issuance or cancellation of a
certificateorpermit,
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InviewoftheintentionandpurposeofActNo.2581toprotect
the public against "speculative schemes which have no more basis
thansomanyfeetofbluesky"andagainstthe"saleofstockinfly
bynightconcerns,visionaryoilwells,distantgoldminesandother
like fraudulent exploitations,"the Court was inclined to hold that
"public interest" in this case is suf f icient standard to guide the
InsularTreasurer,inreachingadecisiononamatterpertainingtothe
issuance of certificates or permits. (People vs. Rosenthal, 68 Phil.
328).
The Legislature cannot delegate legislative power to enact any
law.IfActNo.2868isalawuntoitselfandwithinitself,anditdoes
nothingmorethantoauthorizetheGovernorGeneraltomakerules
and regulations to carry it into effect, then the Legislature created
thelaw.Thereisnodelegationofpoweranditisvalid.Ontheother
hand,iftheActwithinitselfdoesnotdefinethecrimeanditisnot
complete, and some legislative act renains to be done to make it a
laworacrimethedoing
603
603
ofwhichisvestedintheGovernorGeneral,theActisadelegation
of legislative power, and is unconstitutional and void. (People vs.
Vera,supra).
TheProbationActdoesnot,bytheforceofanyofItsprovisions,
fixandimposeupontheprovincialboardsanystandardorguidein
the exercise of their discretionary power. What is granted is a
"roving commission'' which enables the provincial boards to
exercise arbitrary discretion. By section 11 of the Act, the
Legislaturedoesseeminglyonitsownauthorityextendthebenefits
oftheprobationActtotheprovincesbutinrealityleavestheentire
matterforthevariousprovincialboardstodetermine.Ifaprovincial
boarddoesnotwishtohavetheActappliedinitsprovince,allthatit
has to do is to decline to appropriate the needed amount for the
salaryofaprobationofficer.Thisisavirtualsurrenderoflegislative
powertotheprovincialboards.(Peoplevs.Vera,supra).
Thelegislaturemayenactlawsforaparticularlocalitydifferent
fromthoseapplicabletootherlocalitiesandwhilerecognizingthef
orce of the principle hereinabove expressed, courts in many
jurisdictions have sustained the constitutionality of the submission
ofoptionlawstothevoteofthepeople.(6R.C.L.171).Butoption
lawsthussustainedtreatofsubjectspurelylocalincharacterwhich
shouldreceivedifferenttreatmentindifferentlocalitiesplacedunder
different circumstances. Without denying the right of self
government and the propriety of leaving matters of purely local
concerninthehandsoflocalauthoritiesorforthepeopleofsmall
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communities to pass upon in the matters of general legislation like

thatwhichtreatsofcriminalsingeneral,andasregardsthegeneral
subject of probation, discretion may not be vested in a manner so
unqualified and absolute as provided in Act No. 4221. (People vs.
Vera,supra).
X.Distinctionbetweenpowertomakelawsanddiscretionastoits
execution.
Thetruedistinctionisbetweenthedelegationofpowertomakethe
law,whichnecessarilyinvolvesadiscretion
604
604
Abaovs.Aguipo
astowhatitshallbe,andconferringanauthorityordiscretionasto
itsexecution,tobeexercisedunderandinpursuanceofthelaw.The
first cannot be done to the latter no valid objection can be made.
(Cincinnati,W.&Z.R.Co.vs.ClintonCountryCommissioners,1
Ohio St. 77, 88.). See also Sutherland on Statutory Construction,
sec.68.TothesameeffectaredecisionsoftheSupremeCourtinthe
Municipality of Cardona vs. Municipality of Binagonan, 36 Phil
547Rubivs.Provincial Board of Mindoro,39 Phil. 860 Cruz vs.
Youngberg,56Phil.234Peoplevs.Vera,supra.ATTY.JULIANA
B.DECASTRO,
Note.When delegation of legislative powers is not alIowed. It
wasnottheintentionofCongress,inenactingRepublicActNo.997,
toauthorizethetransferofpowersandjurisdictionofthecourtsof
justicetotheofficialstobeappointedorofficestobecreatedbythe
ReorganizationPlan.Congressiswellawareoftheprovisionofthe
Constitution that judicial powers are vested "only in the Supreme
Court and in such courts as the law may establish." The
Reorganization Commission was not authorized to create courts of
justice,ortotakeawayfromthemtheirjurisdictionandtransfersaid
jurisdictiontocreatecourtsofjustice,ortakeawayfromthemtheir
jurisdictionandtransfersaidjurisdictiontotheofficialsappointedor
officescreatedundertheReorganizationPlan.TheLegislaturemay
not and cannot delegate its power to legislate or create courts of
justice to any other agency of the Government. (Chinese Flour
Importers' Association vs. Price Stabilization Board, L4465, July
12, 1961 U.S. vs. Shrevoport, 287 U.S. 7777, L. Ed. 175 and
Johnson vs. San Diego, 42 P. 249, cited in 11 Am, Jur. 921922),
Corominas.Jr.vs.LaborStandardsCommission,2SCRA721.
_______________
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Administrative law Power of President to create municipalities.

it certainly does, said Section 68, as part of the Revised Administrative

ORIGINAL ACTION in the Supreme Court. Prohibition with

is premature and that not all proper partiesreferring: to the

Respondent answers in the affirmative, upon the theory that a new

shall be made in such manner as may be recommended by the (Insular

Respondent alleges that the power of the President to create

Although Congress may delegate to another

Although Congress may delegate to another branch of the

Except to local governments, to which legislative powers, with respect to

Commission,70Phil.221Cruzvs.Youngberg,56Phil.234Alegre vs. Collector of

it is apparent, however, from the language of this clause, that the

as the public interest requires" The opening statement of said

is not an administrative function, but one which is essentially and

If the term "unfair competition" is so broad as to vest in the

collapse of the democratic system established by our Constitution,

ly fail to comply with the constitutional mandate above quoted.

the officers of the newly created municipalities"have been

he has not as yet acted on any of the executive orders in question

of the Philippine Constitution and Republic Act 2370 (The Barrio

"SEC. 5. Exercise of administrative discretion.The exercise of the

In short, the power of control over local governments had now

I am compelled to conclude, therefore, that Section 10(1), Article

body may vest in a court the power to determine when the

power shall be vested in a Congress of the Philippines which shall

same may be caused by another agency (Sec. 3, Republic Act No.

provinces from time to time to serve the public convenience and

judicial. Each of these departments of the government derives its

public utility "to furnish annually a detailed report of finances and

Constitution itself. Section 14, paragraph 2 of Article VI of the

communities to pass upon in the matters of general legislation like

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