Pelaez vs. Auditor General
Such grant of
No. L-23825. December 24, 1965.
EMMANUEL PELAEZ, petitioner, vs. THE AUDITOR
GENERAL, respondent.
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
"upon petition of a majority of the voters in the areas
affected" and the "recommendation of the council of the
municipality or municipalities in which the proposed barrio is
situated." This 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
several barrios.
Same; Same; 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 administrative nature—
involving, as it does, the adoption of means and ways to
carry into effect the law creating" said municipalities—the
authority to create municipal corporations is essentially
legislative in nature,
Same; Same; Same; Requisites for valid delegation of
power.—Although Congress may delegate to another branch
of the government the power to fill in the details in the
execution, enforcement or administration of a law, it is
essential that said law: (a) be complete in itself, setting
forth therein the policy to be executed, carried out or
implemented by the delegate; and (b) fix a standard—the
limits of which are sufficiently determinate or
determinable—to which the delegate must conform in the
performance of his functions.
Same; Same; Same; Same; Requirements of due delegation
of power not met by Section 68 of Revised Administrative
Code.—Section 68 of the Revised Administrative Code,
insofar as it grants to the President the power to create
municipalities, does not meet the well-settled requirements
for a valid delegation of the power to fix the details in the
enforcement of a law. It does not enunciate any policy to be
carried out or implemented by the President.
Same; Same; Same; Same; Same; Abdication of powers of
Congress in favor of the Executive.—If the validity of said
delegation of powers, made in Section 68 of the Revised
Administrative Code, were upheld. there would no 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.
authority would be a virtual abdication of the powers of
Congress in favor of the Executive, and would bring about a
total collapse of the democratic system established by the
Constitution.
Same; Same; Same; Nature of powers dealt with in Section
68 of the Revised Administrative Code.—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. Such is not the nature of
the powers dealt with in Section 68 of the Revised
Administrative Code. The creation of municipalities being
essentially and eminently legislative in character, the
question whether or not "public interest" demands the
exercise of such power is not one of fact It is purely a
legislative question (Carolina-Virginia Coastal Highway vs.
Coastal Turnpike Authority, 74 S.E. 2d. 310-313, 315-318),
or a political question (Udall vs. Severn, 79 P. 2d. 347-349).
Same; Same; Same; Same; Proof 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 thirty-three municipalities,
were issued after the legislative bills for the creation of the
said municipalities had failed to pass Congress, is the best
proof that their issuance entails the exercise of purely
legislative functions.
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, bureaus or offices of the national government,
as well as to act 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, the
fundamental law permits him to wield no more authority
than that of checking whether said local governments or the
officers 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, 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
1
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
compel local officials to submit to his dictation; thereby, in
effect, exercising over them the power of control denied to
him by the Constitution.
Same; Same; Same; Same; Section 68, Revised
Administrative Code repealed by the Constitution.—The
power of control of the President over executive
departments, bureaus or offices under Section 10(a) of
Article X of the Constitution implies no more than the
authority to assume directly the functions thereof or to
interfere in the exercise of discretion by its officials.
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 than that
vested in him over the executive departments, bureaus or
offices, it reverses the process and does the exact opposite,
by conferring upon him more power over municipal
corporations than that which he has over executive
departments, bureaus or offices. Even if, therefore, it did
not entail an undue delegation of legislative powers, as 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, 87 Phil. 289, 298299.)
Same; Same; Same; Municipal officials concerned duly
represented in present case.—lt is contended that not all the
proper parties have been impleaded in the present case.
Suffice it to say that the records do not show, 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, not proprietary function. said local officials, if any,
are mere agents or representatives of the national
government. Their interest in the case has accordingly been
duly represented. (Mangubat vs. Osmeña, Jr., G.R. No. L-
12837, April 30, 1959; City of Cebu vs. Judge Piccio, G.R.
Nos L-13012 & 14876. December 81, 1960.)
Same; Same; Action not premature.—The present action
cannot be said to be premature simply because respondent
Auditor General has not yet acted on any of the executive
orders in question and has not intimated how he would act
in connection therewith. It is a matter of common
knowledge that the President has for many years issued
executive orders creating municipal 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 audit by the General Auditing Office
and its officials. There is no reason to 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, and none has been made by
him.
ORIGINAL ACTION in the Supreme Court. Prohibition with
preliminary injunction.
The facts are stated in the opinion of the Court.
Zulueta, Gonzales, Paculdo & Associates for petitioner.
Solicitor General for respondent.
CONCEPCION, J.:
During the period from September 4 to October 29, 1064
the President of the Philippines, purporting to act pursuant
to Section 68 of the Revised Administrative Code, issued
Executive Orders Nos, 93 to 121, 124 and 126 to 129;
creating thirty-three (33) municipalities enumerated in the
margin.1 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
present special civil action, for a writ of prohibition with
preliminary injunction, against the Auditor General, to
restrain him, as well as his representatives and agents from
passing in audit any expenditure of public funds in
implementation of said executive orders and/or any
disbursement by ,said municipalities.
Petitioner alleges that said executive orders are null and
void, upon the ground that said Section 68 has been
impliedly repealed by Republic Act No. 2370 and constitutes
an undue delegation of legislative power, Respondent
maintains the contrary view and avers that the present
action is premature and that not all proper parties—
referring: to the officials of the new political subdivisions in
question—have been impleaded, Subsequently, the mayors
2
of several municipalities adversely affected by the
aforementioned executive orders—because the latter have
taken sway from the former the barrios composing the new
political subdivisions—intervened in the case. Moreover,
Attorneys Enrique M. Fernando and Emma Quisumbing-
Fernando were allowed to and did appear as amici curiae.
The third paragraph of Section 3 of Republic Act No. 2370,
reads:
"Barrios shall not be created or their boundaries altered nor
their names changed except under the provisions of this Act
or by Act of Congress."
Pursuant to the first two (2) paragraphs of the same Section
3:
"All barrios existing at the time of the passage of this Act
shall come under the provisions hereof.
"Upon petition of a majority of the voters in the areas
affected, a new barrio may be created or the name of an
existing one may' be changed by the provincial board of the
province, upon recommendation of the council of the
municipality or municipalities in which the proposed barrio is
stipulated. The recommendation of the municipal council
shall be embodied in a resolution approved by at least two-
thirds of the entire membership of the said council:
Provided, however, That no new barrio may be created if its
population is less than five hundred persons."
Hence, 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 "upon
petition of a majority of the voters in the areas affected"
and the "recommendation of the council of the municipality
or municipalities in which the proposed barrio is situated."
Petitioner argues, accordingly: "If the President, under this
new law, cannot even create a barrio, can he create a
municipality which is composed of several barrios, since
barrios are units of municipalities?"
Respondent answers in the affirmative, upon the theory that
a new municipality can be created without creating new
barrios, such as, by placing old barrios under the jurisdiction
of the new municipality. This theory overlooks, however, the
main import of the petitioner'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.
The cogency and force of this argument is too obvious to be
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, section 68 of the Administrative Code, upon
which the disputed executive orders are based, provides:
"The (Governor-General) 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 with another, name any
new subdivision so 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) Congress of the
Philippines shall first be obtained whenever the boundary of
any province or subprovince is to be defined or any province
is to be divided into one or more subprovinces. When action
by the (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 (Governor-General) President of
the Philippines, with the recommendation and advice of the
head of the Department having executive control of such
officer, shall redistrict the territory of the several officers
affected and assign such officers to the new districts so
formed.
"Upon the changing of the limits of political divisions in
pursuance of the foregoing authority, an equitable
distribution of the funds and obligations of the divisions
thereby affected shall be made in such manner as may be
recommended by the (Insular Auditor) Auditor General and
approved by the (Governor-General) President of the
Philippines,"
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 Binañgonan (86
Phil. 547), which, he claims, has settled it. Such claim is
untenable, for said case involved, not the creation of a new
municipality, but a mere transfer of territory—from an
already existing municipality (Cardona) to another
municipality (Binañgonan), likewise, existing at the time of
and prior to said transfer (See Gov't of the P.I. ex rel.
Municipality of Cardona vs. Municipality of Binañgonan [34
Phil. 518, 519-520])—in consequence of the fixing and
3
definition, pursuant to Act. No. 1748, of the common bound
aries of two municipalities.
It is obvious, however, that, whereas the power to fix such
common boundary, in order to avoid or settle conflicts of
jurisdiction between adjoining municipalities, may partake of
an administrative nature—involving, as it does, the adoption
of means and ways to carry into effect the law creating said
municipalities—the authority to create municipal
corporations is essentially legislative in nature, In the
language of other courts, it is "strictly a legislative function"
(State ex rel. Higgins vs. Aicklen, 119 S. 425, January 2,
1959) or "solely and exclusively the exercise of legislative
power" (Udall vs. Severn, May 29, 1938, 79 P. 2d 347-349).
As the Supreme Court of Washington has put it (Territory ex
rel. Kelly vs. Stewart, February 13, 1890, 23 Pac. 405, 409),
"municipal corporations are purely the creatures of
statutes."
Although1a Congress may delegate to another branch of the
Government the power to fill in the details in the execution,
enforcement or administration of a law, it is essential, to
forestall a violation of the principle of separation of -powers,
that said law: (a) be complete in itself—it must set forth
therein the policy to be executed, carried out or
implemented by the delegate2—and (b) fix a standard—the
limits of which are sufficiently determinate or
determinable—to which the delegate must conform in the
performance of his functions.2a Indeed, without a statutory
declaration of policy, the delegate would in effect, make or
formulate such policy, which is the essence of every law;
and without the aforementioned standard, there would be
no means to determine, with reasonable certainty, whether
the delegate has acted within or beyond the scope of his
authority.2b Hence, he could thereby arrogate upon himself
the power, not only to make the law, but, also—and this is
worse—to unmake it, by adopting measures inconsistent
with the end sought to be attained by the Act of Congress,
thus nullifying the principle of separation of powers and the
system of checks and balances, and, consequently,
undermining the very foundation of our Republican system.
Section 68 of the Revised Administrative Code does not
meet these well settled requirements for a valid delegation
of the power to fix the details in the enforcement of a law,
It does not enunciate any policy to be carried out or
implemented by the President Neither does it give a
standard suf f iciently precise to avoid the evil effects above
referred to, In this connection, we do not overlook the fact
that, under the last clause of the first sentence of Section
68, the President:
"x x x may change the seat of the government within any
subdivision to such place therein as the public welfare may
require"
it is apparent, however, from the language of this clause,
that the phrase "as the public welfare may require"
qualified, not the clauses preceding the one just quoted, but
only the place to which the seat of the government may be
transferred. This fact becomes more apparent when we
consider that said Section 68 was originally Section 1 of Act
No. 1748,3 which provided that, "whenever in the judgment
of the Governor-General the public welfare, requires, he
may, by executive order," effect the changes enumerated
therein (as in said section 68), including the change of the
seat of the government "to such place x x x as the public
interest requires" The opening statement of said Section 1
of Act No, 1748—which was not included in Section 68 of
the Revised Administrative Code—governed the time at
which, or the conditions under which, the powers therein
conferred could be exercised; whereas the last part of the
first sentence of said section referred exclusively to the
place to which the seat of the government was to be
transferred.
At any rate, the conclusion would be the same, insofar as
the case at bar is concerned, even if we assumed that the
phrase "as the public welfare may require," in said Section
68, qualifies all other clauses thereof. It is true that in
Calalang vs. Williams (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—as all
judicial pronouncements—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.4 The law construed in the Calalang case
conferred upon the Director of Public Works, with the
approval of the Secretary of Public Works and
Communications, the power to issue rules and regulations to
promote safe transit upon national roads and streets. Upon
the other hand, the Rosenthal case referred to the authority
of the Insular Treasurer, under Act No. 2581, to issue and
cancel certificates or permits for the sale of speculative
securities. 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.
Such is not the nature of the powers dealt with in section
880 As above indicated, the creation of municipalities, 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 not one of fact. It is "purely a legislative question
"(Carolina-Virginia Coastal Highway vs. Coastal Turnpike
Authority, 74 S.E. 2d. 310-313, 315-318), or a political
4
question (Udall vs. Severn, 79 P. 2d. 347-349), As the
Supreme Court of Wisconsin has aptly characterized it, "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, 1035-1037).
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 territories should be annexed to
a particular municipality (Udall vs. Severn, supra, 258-359);
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
powers and functions of the village are specifically limited by
statute (In re Municipal Charters, 86 Atl. 307-308); or
conferring upon courts the authority to declare a given town
or village incorporated, and designate its metes and bounds,
upon petition of a majority of the taxable inhabitants
thereof, setting forth the area desired to be included in such
village (Territory ex rel Kelly vs. Stewart, 28 Pac. 405-409);
or authorizing the territory of a town, containing a given
area and population, to be incorporated as a town, on
certain steps, being taken by the inhabitants thereof and on
certain determination by a court and subsequent vote of the
inhabitants in favor thereof, insofar as the court is allowed
to determine whether the lands embraced in the petition
"ought justly" to be included in the village, and whether the
interest of the inhabitants will be promoted by such
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, construction or operation of a toll road
is in the "public interest" and whether the requirements of
the law had been complied with, in which case the board
shall enter an order creating a municipal corporation and
fixing the name of the same (Carolina-Virginia Coastal
Highway vs. Coastal Turnpike Authority, 74 S.E. 2d. 310).
Insofar as the validity of a delegation of power by Congress
to the President is concerned, the case of Schechter Poultry
Corporation vs. U.S. (79 L. Ed. 1570) is quite relevant to the
one at bar. The Schechter case involved the constitutionality
of Section 3 of the National Industrial Recovery Act
authorizing the President of the United States to approve
"codes of fair competiton" submitted to him by one or more
trade or industrial associations or corporations which
"impose no inequitable restrictions on admission to
membership therein and are truly representative," provided
that such codes are not designed "to promote monopolies or
to eliminate or oppress small enterprises and will not
operate to discriminate against them, and will tend to
effectuate the policy" of said Act. The Federal Supreme
Court held:
"To summarize and conclude upon this point: Sec. 3 of the
Recovery Act is without precedent. It supplies no standards
for any trade, industry or activity. It does not undertake to
prescribe rules of conduct to be applied to particular states
of fact determined by appropriate administrative procedure.
Instead of prescribing rules of conduct, it authorizes the
making of codes to prescribe them. For that legislative
undertaking, Sec. 3 sets up no standards, aside from the
statement of the general aims of rehabilitation. correction
and expansion described in Sec. 1. In view of the scope of
that broad declaration, 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 constitutional
delegation of legislative power."
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 obvious that "public welfare," which has even a
broader connotation, leads to the same result. In fact, if the
validity of the delegation of powers made in Section 88 were
upheld, there would no 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
abdication of the powers of Congress in favor of the
Executive, and would bring about a total collapse of the
democratic system established by our Constitution, which it
is the special duty and privilege of this Court to uphold.
It may not be amiss to note that the executive orders in
question 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, or offices, exercise general
supervision over all local governments as may be provided
by law, and take care that the laws be faithfully executed."
The power of control under this provision 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, bureaus, or offices of the national
government, as well as to act in lieu of such officers. This
power is, denied by the Constitution to the Executive,
5
insofar as local governments are concerned. With respect to
the latter, the fundamental law permits him to wield no
more authority than that of checking whether said local
governments or the officers 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 council
has failed or refused to pass, even if it had thereby violated
a duty imposed thereto by law, although he may see to it
that the corresponding provincial officials take appropriate
disciplinary action therefor.
Neither may he vote, set aside or annul an ordinance
passed by said council within the scope of its jurisdiction, no
matter how patently unwise it may be. He may not even
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.5
Upon the other hand, if 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,6 Thus, by merely
brandishing the power to create a new municipality (if he
had it), without actually creating it, he could compel local
officials to submit to his dictation, thereby, in effect,
exercising over them the power of control denied to him by
the Constitution.
Then, also, the power of control of the President over
executive departments, bureaus or offices implies no more
than the authority to assume directly the functions thereof
or to interfere in the exercise of discretion by its officials.
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. In other words, Section 68
of the Revised Administrative Code does not merely 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, as it certainly does, said Section 68, as
part of the Revised Administrative Code, approved on March
10, 1917, must be deemed repealed by the subsequent
adoption of the Constitution, in 1935, which is utterly
incompatible and inconsistent with said statutory
enactment.7
There are only two (2) other points left for consideration,
namely, respondent's claim (a) that "not all the proper
parties"—referring to the officers of the newly created
municipalities—"have been impleaded in this case," and (b)
that "the present petition is premature/'
As regards the first point, suffice it to say that the records
do not show, and the parties do not claim, that the officers,
of any of said municipalities have been appointed or elected
and 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
aforementioned municipalities, which involves a political, not
proprietary, function, said local officials, if any, are mere
agents or representatives of the national government. Their
interest in the case at bar has, accordingly, been, in effect,
duly represented.8
With respect to the second point, respondent alleges that he
has not as yet acted on any of the executive orders in
question and has not intimated how he would act in
connection therewith. 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 have
been organized and in actual operation, thus indicating,
without peradventure of doubt, that the expenditures
incidental thereto have been sanctioned, approved or
passed in audit by the General Auditing Office and its
officials. There is no reason to believe, therefore, that
respondent would adopt a different policy as regards the
new municipalities involved in this case, in the absence of
an allega-tion to such effect, and none has been made by
him
WHEREFORE, the Executive Orders in question are hereby
declared null and void ab initio and the respondent
permanently restrained from passing in audit any
expenditure of public funds in implementation of said
Executive Orders or any disbursement by the municipalities
above referred to. It is so ordered.
Bengzon, C.J., Bautista Angelo, Reyes, J.B.L., Barrera
and Dizon, JJ., concur.
Zaldivar, J., took no part.
6

Bengzon, J.P., J., concurs and dessents is a seperate
opinion.
Makalintal and Regala, JJ., concur with the opinion of
Justice J.P. Bengzon.
BENGZON, J.P., J., concurring and dissenting:
A sign of progress in a developing nation is the rise of new
municipalities. Fostering their rapid growth has long been
the aim pursued by all three branches of our Government.
So it was that the Governor-General during the time of the
Jones Law was given authority by the Legislature (Act No.
1748) to act upon certain details with respect to said local
governments, such as fixing of boundaries, subdivisions and
mergers. And the Supreme Court, within the framework of
the Jones Law, ruled in 1917 that the execution or
implementation of such details, did not entail abdication of
legislative power (Government vs. Municipality of
Binangonan, 34 Phil. 518; Municipality ,of Cardona vs.
Municipality of Binañgonan, 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 present continued to avail of
said provision, time and again invoking it to issue executive
orders providing for the creation of municipalities.
From September 4, 1964 to October 29, 1964 the President
of the Philippines issued executive orders to create thirty-
three municipalities pursuant to Section 68 of the Revised
Administrative Code. Public funds thereby stood to be
disbursed in implementation of said executive orders.
Suing as private citizen and taxpayer, Vice President
Emmanuel Pelaez filed in this Court a petition for prohibition
with preliminary injunction against the Auditor General. It
seeks to restrain the respondent or any person acting in his
behalf, from passing in audit any expenditure of public
funds in implementation of the executive orders
aforementioned.
Petitioner contends that the President has no power to
create a municipality by executive order. It is argued that
Section 68 of the Revised Administrative Code of 1917, so
far as it purports to grant any such power, is invalid or, at
the least, already repealed, in light of the Philippine
Constitution and Republic Act 2370 (The Barrio Charter),
Section 68 is again reproduced hereunder for convenience:
"SEC. 68. General authority of [Governor-General] 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] municipal district, or other political subdivision,
and increase or diminish the territory comprised therein,
may divide any province into one or more subprovinces,
separate any political division other than a province, into
such portions as may be required. 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, That the
authorization of the [Philippine Legislature] Congress of the
Philippines shall first be obtained whenever the boundary of
any province or subprovince is to be defined or any province
is to be divided into one or more subprovinces. When action
by the [GovernorGeneral] 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 [Governor-General] President of
the Philippines, with the recommendation and advice of the
head of the Department having executive control of such
officer, shall redistrict the territory of the several officers to
the new districts so formed.
"Upon the changing of the limits of political divisions in
pursuance of the foregoing authority, an equitable
distribution of the funds and obligations of the divisions
thereby affected shall be made in such manner as may be
recommended by the [Insular Audtior] Auditor General and
approved by the [Governor-General] President of the
Philippines."
From such working I believe that power to create a
municipality is included: to "separate any political division
other than a province, into such portions as may be
required, merge any such subdivisions or portions with
another, name any new subdivision so created." The issue,
however, is whether the legislature can validly delegate to
the Executive such power,
The power to create a municipality is legislative in character.
American authorities have therefore favored the view that it
cannot be delegated; that what is delegable is not the
power to create municipalities but only the power to
determine the existence of facts under which creation of a
municipality will result (37 Am. Jur. 628).
The test is said to lie in whether the statute allows any
discretion on the delegate as to whether the municipal
7
corporation should be created, If so, there is an attempted
delegation of legislative power and the statute is invalid
(Ibid.). Now Section 68 no doubt gives the President such
discretion, since it says that the President "may by executive
order" exercise the powers therein granted. Furthermore,
Section 5 of the same Code states:
"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 authority or not"
Under the prevailing rule in the United States—and Section
68 is of American origin—the provision in question would be
an invalid attempt to delegate purely legislative powers,
contrary to the principle of separation of powers.
It is very pertinent that Section 68 should be considered
with the stream of history in mind. A proper knowledge of
the past is the only adequate background for the present.
Section 68 was adopted half a century ago. Political change,
two world wars, the recognition of our independence and
rightful place in the family of nations, have since taken
place. In 1917 the Philippines had for its Organic Act the
Jones Law. And under the setup ordained therein 110 strict
separation of powers was adhered to. Consequently, Section
68 was not constitutionally objectionable at the time of its
enactment.
The advent of the Philippine Constitution in 1935 however
altered the situation. For not only was separation of powers
strictly ordained, except only in specific instances therein
provided, but the power of the Chief Executive over local
governments suffered an explicit reduction.
Formerly, Section 21 of the Jones Law provided that the
Governor-General "shall have general supervision and
control of all 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
supervision over all local governments as may be provided
by law, and take care that the laws be faithfully executed.
In short, the power of control over local governments had
now been taken away from the Chief Executive. Again, to
fully understand the significance of this provision, one must
trace its development and growth.
As early as April 7, 1900 President McKinley of the United
States, in his Instructions to the Second Philippine
Commission, laid down the policy that our municipal
governments should be "subject to the least degree of
supervision and control" on the part of the national
government. Said supervision and control was to be
confined within the "narrowest limits" or so much only as
"may be necessary to secure and enforce faithful and
efficient administration by local officers/' And the national
government "shall have no direct administration except of
matters of purely general concern." (See Hebron v. Reyes,
L-9158, July 28, 1958.)
All this had one aim, to enable the Filipinos to acquire
experience in the art of self-government, with the end in
view of later allowing 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 (Rodriguez v.
Montinola, 50 O.G. 4820).
It is the evident decree of the Constitution, therefore, that
the President shall have no power of control over local
governments. Accordingly, Congress cannot by law grant
him such power (Hebron v. Reyes, supra). And any such
power formerly granted under the Jones Law thereby
became unavoidably inconsistent with the Philippine
Constitution.
It remains to examine the relation of the power to create
and the power to control local governments. Said
relationship has already been passed upon by this Court in
Hebron v. Reyes, supra, In said 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 conferred on or exercised by the President, it
follows a fortiori that the power to create them, all the more
cannot be so conferred or exercised.
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 repeal differs from a
declaration of unconstitutionality of a posterior legislation,
so much so that only a majority vote of the Court is needed
to sustain a finding of repeal.
8
Since the Constitution repealed Section 68 as far back as
1935, it is academic to ask whether Republic Act 2370
likewise has provisions in conflict with Section 68 so as to
repeal it. Suffice it to 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 municipalities
consist of barrios, there is nothing in the statute that would
preclude creation of new municipalities out of pre-existing
barrios.
It is not contrary to the logic of local autonomy to be able to
create larger political units and unable to create smaller
ones. For as long ago observed in President McKinley's
instructions to the Second Philippine Commission, greater
autonomy is to be imparted to the smaller of the two
political units. The smaller the unit of local 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. The national government. in such a case, could
still exercise power 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 Congress to
deny the national government some power over barrios
without denying it over municipalities. For this reason, I
disagree with the majority view that because the President
could not create a barrio under Republic Act 2370, a fortiori
he cannot create a municipality.
It is my view, therefore, that the Constitution, and not
Republic Act 2370, repealed Section 68 of the Revised
Administrative Code's provision giving the President
authority to create local governments. And for this reason I
agree with the ruling in the majority opinion that the
executive orders in question are null and void.
In thus ruling, the Court is but sustaining the fulfillment of
our historic desire to be free and independent under a
republican form of government, and exercising a function
derived from the very sovereignty that it upholds,
Executive orders declared null and void.
ANNOTATION
CREATION OF MUNICIPALITIES
Historical Background of the Power of Creating
Municipalities in the Philippines.
During the Spanish regime the procedure of the creation of
municipalities has been prescribed by the Leyes de las
Indias (Roman Catholic Bishop of Jaro vs. Director of Lands,
34 Phil. 528; see also Law VIII, Title VII, Book IV of
Recopilación de Leyes de los Reynos de las Indias).
In the case of Catbalogan vs. Director of Lands, 17 Phil.,
214, the Court took cognizance of the procedure for the
formation of towns during the Spanish regime, Executive
authorities and officials who then represented the Spanish
government were obliged to adjust their procedures in the
fulfillment of their duties with regard to the establishment
and laying out of new towns to the Leyes de las Indias.
An Ayuntamiento corresponds to the English term municipal
corporation and the municipal government in the Islands
falls short of being such a corporation (Government of the
Philippine Islands vs. Abadilla, 46 Phil. 842; see also Roman
Catholic Church vs. Municipally of Cebu, 31 Phil. 517).
The unit of local administration during the Spanish regime
was the "pueblo" which ordinarily embraces an area of.
many square miles and contained numerous barrios or
villages.
Historical Background under the American Regime.
The law governing municipalities was first provided for in
General Order No. 43, Series of 1899. This law was followed
by General Order No. 40, Series of 1900 promulgated by the
Military Governor. President it William McKinley's
Instructions to the Second Philippine Commission also
stressed the importance of the creation of municipal
governments.
The Philippine Commission forthwith enacted Act No. 82 on
January 31, 1901 providing for the organization and
government of municipalities. Act No. 88 was passed on
February 5, 1901 for the organization of the provinces. The
law on provincial and municipal governments were
embodied in Chapters 56, 57, 64 and 67 of the Revised
Administrative Code.
The Power to Create Corporations is Essentially Legislative.
The power of the municipal corporation is essentially
legislative in nature. The power is exclusive and almost
unlimited. In the absence 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.,
509; 19 R.C.L. section 2).
9
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 conditions on which the municipal corporation may
be created. The legislative may prescribe standards for
guidance and authorize an agency to determine facts on
which the statute may be implemented for the creation of
such corporation.
In some jurisdictions, it has been held that the legislative
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, Municipal Corporations, 3rd Ed., p. 505). Usually,
in the creation of municipal corporations the conditions
needed in order to obtain its incorporation as a city or town
are prescribed. Such conditions may indicate the extent of
the area proposed to incorporate, the nature of the
territory, the character of the lands and the uses to which it
may be devoted, the number of inhabitants and even the
density and location of the area to be incorporated (I
McQuillin, Municipal Corporations, 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 power shall be vested in a Congress
of the Philippines which shall consist of a Senate and a
House of Representatives" (Art VI, Section 1, Constitution of
the Philippines; Tiaco vs. Forbes, 228 U.S. 549; Asuncion vs.
Yriarte, 37 Phil. 67).
Under this authority, Congress may enact laws creating
provinces, sub-provinces, cities, municipalities, municipal
districts, barrios and other local entities. It may group into
one area those which are already existing. It may subdivide
them into several other 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, Law on
Municipal Government, 1968 Ed., p. 37),
The Provincial Board may also organize barrios under
Republic Act No. 2370. See also Republic Act No. 2264, June
19, 1959, Republic Act No, 5185 and Republic Act No. 1205.
For organization of municipalities, see Section 2170 of the
Revised Administrative Code as amended by Republic Act
No. 2368.
The Nature of the Legislative Power to Create the Area For
Local Government.
The legislative power to create an area of the local
government involves two things: (1) the determination of
whether a local area -shall be created or not; (2) the
determination of whether said decision shall have the force
of law. To leave the decision to another 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., 1968 Ed., 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 create when the agency
has the authority to carry out the provisions of the law and
the discretion is only as to the manner of executing the law
(Id.).
Creation of Barrios by Authority of Law.
Under the Revised Barrio Charter (Republic Act No. 3590)
barrios may be created directly by the lawmaking body, or a
creation of the same may be caused by another agency
(Sec. 3, Republic Act No. 3590). The Barrio Charter Law
does not give the uncontrolled power to determine whether
or not to create the barrio and the conditions under which
such barrio should be created because the law has set forth
specific conditions (Aruego, Id.).
Constitutional Validity of Creation under Administrative Code
by the Executive.
Before the effectivity of the Administrative Code of 1918,
Act 1748 was passed authorizing the Governor General of
the Philippines to make adjustment of provincial and
municipal boundaries and the change of capitals of
provinces from time to time to serve the public convenience
and interest
The Supreme Court overruled the contention that the act
was an undue delegation of legislative power. The Supreme
Court ruled:
"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 development
and center of population, the proper regulation of which
10
might require not only prompt action but action of such a 327; Yajus vs. White, 821 U.S. 414; Ammann vs. Mailonce,
detailed character as not to permit the legislative body, as 332 U.S. 245.
such, to take it efficiently." (Cardona vs. Binañgonan, 36
Phil. 547).
Section 68 of the Revised Administrative Code has been
declared unconstitutional in the case of Pelaez vs. Jimenez,
The Supreme Court likewise upheld the constitutional G.R. No. L-23825. December 24, 1965. The Supreme Court
legality of an executive order of the Governor General in thus reiterated the f undamental principle that the creation
redefining the boundary between the municipalities of of municipal corporations is legislative in nature.
Cardona and Binañgonan (Government of the P.I. vs.
Municipality of Binañgonan, 35 Phil. 518).
Moreover, Section 3 of Republic Act No. 2370 which took
effect on January 1, 1960 provided that barrios may not be
Section 68 of the Revised Administrative Code of 1917 was created or their boundaries altered except by act of
enacted. Congress or by the corresponding provincial board upon
petition of the majority of the voters in the area affected
and the recommendation of the municipality in which the
"SEC. 68. General Authority of the (Governor General) proposed barrios are situated. If under this new law the
President of the Philippines to fix boundaries and make new President cannot create a barrio, he cannot create
subdivisions.—The Governor General (now President of the municipalities which are composed of several barrios (See
Philippines) may by executive order define the boundary, or Republic Act No. 5185).
boundaries, of any province, subprovince, municipality,
(township) municipal district (See Act 27824), or other
political subdivision, and increase or diminish the territory For creation of barrios, see Revised Barrio Charter (Republic
comprised therein, may divide any province into one or Act No. 3590).—JUDGE JORGE COQUIA
more subprovinces, separate any political division other than
a province, into such portions as may be required, merge
any of such subdivisions or portions with another, name any ANNOTATION
new division so created, and may change the seat of
government within any subdivision into such place therein VALID DELEGATION OF LEGISLATIVE POWER
as the public welfare may require: Provided. That the
authorization of the Philippine Legislature (now Congress of I. Principle of separation of powers.
the Philippines) shall first be obtained whenever the
The separation of powers is a fundamental principle in our
boundary of any province or subprovince is to be defined or
system of government. It obtains not through express
any province is to be divided into one or more subprovinces.
provision but by actual division in our Constitution. Each
x x x."
department of the government has exclusive cognizance of
matters within its jurisdiction and is supreme within its own
sphere. (Angara vs. Electoral Commission, et al., 63 Phil.
The Governors General and later the Presidents of the 139).
Philippines create several municipalities under this section.
This law practically gave uncontrolled discretion to the
executive to create new areas as municipalities and is of
II. Constitutional provisions on separation of powers.
doubtf ul legality, For cases on delegation of legislative
powers as valid standards for delegation of power, see The Legislative power shall be vested in a Congress of the
People vs. Lim Ho, L-12091-2, January 28,1960; People vs. Philippines which shall consist of a Senate and a House of
Jolliffe, L-9553, May 13, 1959; People vs. Vera, 65 Phil. 56; Representatives. (Article VI, Sec, I, Phil. Constitution).
U.S. vs. Ang Tang Ho, 43 Phil. 1; Compañia General de
Tabacos vs. Board of Public Utility, 34 Phil. 136; Mutual Film
Co. vs. Industrial Commission, 236 U.S. 247, 59 L. Ed. 561;
The Executive power shall be vested in a President of the
Mutual Film Corp. vs. Industrial Commission, 236 U.S. 230,
Philippines. (Art. VII, Sec. 1, Phil. Constitution).
59 L. Ed. 552; Pamana Refining Co. vs. Ryan, 293 U.S. 388,
79 L. Ed. 446; A.L.A. Schechter Poultry Corp. vs. U.S., 295
U.S. 79 L. Ed. 1570, U.S. vs. Rock Royal Coop., 307 U.S.
533, L. Ed. 1446; Bowles vs. Willingham, 321, U.S. 503, 88 The Judicial power shall be vested in one Supreme Court
L. Ed. 892; Araneta vs. Gatmaitan, L8895, April 30, 1957; and in such inferior courts as may be established by law.
Cervantes vs. Auditor General, L4043, May 30, 1952; Phil. (Art. VIII, Sec. 1, Phil. Constitution).
Association of Colleges vs. Secretary of Education, 51 Off.
Gaz. 6230; People vs. Arnault. 48 Off. Gaz, 4805; Antamok
Gold Field-vs. CIR. 68 Phil. 340; U.S. vs. Barrias, 11 Phil.

11
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, and are of equal dignity and,
within their respective spheres of action, equally
independent. (Abueva vs. Wood, 46 Phil. 613).
III. Importance of the principle.
It has been said that the principle of separation of powers
of government is fundamental to the very existence of every
constitutional government. It represents the most important
principle of government declaring and guaranteeing the
liberties of the people. (Am. Jur. 182) Under our
constitutional system, the powers of government are
distributed among three co-ordinate and substantially
independent organs: the legislative, the executive and the
judicial. Each of these departments of the government
derives its authority from the Constitution, which, in turn, is
the highest expression of the popular will. Each has
exclusive cognizance of the matters within the jurisdiction
and is supreme within its own sphere. (People vs. Vera, 65
Phil. 63).
By the organic law of the Philippine Islands and the
Constitution of the United States, all powers are vested in
the Legislature, Executive and Judiciary, It is the duty of the
Legislature to make the law; of the Executive to execute;
and of the Judiciary to construe the law. The Legislature has
no authority to execute or construe the law; the Executive
has no authority to make or construe the law; and the
judiciary has no -power to make or execute the law. Subject
to the Constitution only, the power of each branch is
supreme within its own jurisdiction, and it is for the judiciary
only to say when any Act of the Legislature is or is not
constitutional. (U.S. vs. Ang Tang Ho, 48 Phil. 1).
IV. Scope of the principle of separation of powers.
The three departments of the government are co-ordinate,
co-important, co-equal and independent of each other; that
each of the several departments of the government derives
its authority directly or indirectly from the people and is
responsible to them; that each has exclusive cognizance of
the matters within its jurisdiction and is supreme within its
own sphere. In the exercise of the powers of government
assigned to them severally, the departments operate
harmoniously and independently of the others and the
action of any one of them in the exercise of its powers is
not subject to the control by either of the others. (Province
of Tarlac vs. Gale, 26 Phil. 338; Barcelona vs. Baker, 5 Phil.
87).
V. Principle of checks and balances.
It does not follow from the fact that the three powers are to
be kept separate and distinct that the Constitution intended
them to be absolutely unrestrained and independent of each
other. The Constitution has provided for the elaborate
system of checks and balances to secure coordination in the
workings of various departments of the government For
example, the Chief Executive under our Constitution in so
far made a check on the Legislative power that his assent is
required in the enactment of laws. This, however, is subject
to the further check that a bill may become a law
notwithstanding the refusal of the President to approve it,
by a vote of two-thirds or three-fourths as the case may be,
of the National Assembly. The President has also the right
to convene the Assembly in special session whenever he
chooses, 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; and the
concurrence of a majority of all its members is essential to
the conclusion of treaties. Furthermore, in Its power to
determine what courts, other than the Supreme Court shall
be established, to define their jurisdiction and to appropriate
funds for the support, 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 other
departments in the exercise of its power to determine the
law, and hence, to declare executive and legislative acts
void if violative of the Constitution. (Angara vs. Electoral
Commission, supra).
VI. Principle of non-delegation of powers.
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 the law, which necessarily involves a discretion as to
what it shall be and conferring authority or discretion as to
its execution, to be exercised under and in pursuance of the
law. The first cannot be done; to the latter no valid
objection can be made." (Cincinnati, W. & Z. R. Co. vs.
Comrs. Clinton County, 1 Ohio St. 88) Rubi vs. Province of
Mindoro, 39 Phil. 662.
Thus, an Act of the Philippine Legislature giving to the
Board of Public Utility Commissioners power to require
public utility "to furnish annually a detailed report of
finances and operations, in such form and containing such
matters as the Board may from time to time by order
prescribe" is invalid for the reason that it is a delegation of
legislative power to the Board of Public Utility
Commissioners and is in violation of the Act of July 1, 1902.
(Compañia General de Tabacos de Filipinas vs. Board of
Public Utility Commissioners, 34 Phil. 137).
VII. Delegation of legislative power; historical development.
12
The power to make laws—the legislative power—is 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. Any attempt to
abdicate the power is unconstitutional and void, on the
principle that potestas delegata, non delegare potest. This
principle is said to have originated with the glossators, was.
introduced into English, law through a misreading of
Bracton, there developed as a principle of agency, was
established by Lord Coke in 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 corollary
of the principle of separation of powers. (People vs. Vera,
supra).
VIII. Exceptions to the principle of non-delegation.
The rule, however, which forbids the delegation of
legislative power is not absolute and inflexible, It admits of
exceptions, An exception sanctioned by immemorial practice
permits the central legislative body to delegate legislative
power to local authorities. On quite the same principle,
Congress is empowered to delegate legislative power to
such agencies in the territories of the United States as it
may select. Courts have also sustained the delegation of
legislative powers to the people at large, though some
authorities maintain that this may not be done, Doubtless,
also, legislative power may be delegated by the Constitution
itself. Section 14, paragraph 2 of Article VI of the
Constitution of the Philippines provides that "the National
Assembly may by law authorize the President, subject to
such limitations and restrictions as it may impose, to fix
within specified limits, tariff rates, import or export quotas,
and tonnage and wharfage dues." In times of war or other
national emergency, the National Assembly may by law
authorize the President, for a limited period and subject to
such restrictions as it may prescribe, to promulgate rules
and regulations to carry out a declared national policy.
(People vs. Vera, supra).
The provision of section 1 of Commonwealth Act No. 548
does not confer legislative power upon the Director of Public
Works and the Secretary 01 Public Works and
Communications. The authority conferred upon them and
under which they promulgated the rules and regulations
now complained of is not to determine what public policy
demands but merely to carry out the legislative policy laid
down by the National Assembly in said Act, to wit, to
promote safe 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 necessary or advisable
in the public convenience and interest." The delegated
power, if at all, therefore, is not the determination of what
the law shall be, but merely the ascertainment of the facts
and circumstances upon which the application of said law is
to be predicated. (Calalang vs. Williams, 70 Phil. 726).
IX. Tests of undue delegation.
In testing whether a statute constitutes an undue delegation
of legislative power or not, it is usual to inquire whether the
statute was complete in all its terms and provisions when it
left the hands of the legislature so that nothing is left to the
judgment of any other appointee or delegate of the
legislature. In U.S. vs. Ang Tang Ho (43 Phil. 1) the
Supreme Court adhered to the foregoing rule. The general
rule, however, is limited by another rule that to a certain
extent matters of detail may be left to be filled in by rules
and regulations to be adopted or promulgated by executive
officers and administrative boards. As a rule, an act of the
legislature is incomplete and hence, invalid if it does not lay
down by any rule or definite standard by which the
administrative board may be guided in the exercise of the
discretionary powers delegated to it. (People vs. Vera,
supra).
In one case, appellants argue that, while Act No. 2581
empowers the Insular Treasurer to issue and cancel
certificates or permits for the sale of speculative securities,
no standard or rule is fixed in the Act which can guide said
official in determining the cases in which a certificate or
permit ought to be issued, thereby making his opinion the
sole criterion in the matter of its issuance, with the result
that legislative powers being unduly delegated to the Insular
Treasurer, Act No. 2581 is unconstitutional. The Court is of
the opinion that the Act furnishes a sufficient standard for
the Insular Treasurer to follow in reaching a decision
regarding the issuance or cancellation of a certificate or
permit,
In view of the intention and purpose of Act No. 2581—to
protect the public against "speculative schemes which have
no more basis than so many feet of blue sky" and against
the "sale of stock in fly-by-night concerns, visionary oil
wells, distant gold mines and other like fraudulent
exploitations,"—the Court was inclined to hold that "public
interest" in this case is suf f icient standard to guide the
Insular Treasurer, in reaching a decision on a matter
pertaining to the issuance of certificates or permits. (People
vs. Rosenthal, 68 Phil. 328).
The Legislature cannot delegate legislative power to enact
any law. If Act No. 2868 is a law unto itself and within itself,
and it does nothing more than to authorize the Governor
General to make rules and regulations to carry it into effect,
then the Legislature created the law. There is no delegation
of power and it is valid. On the other hand, if the Act within
itself does not define the crime and it is not complete, and
some legislative act renains to be done to make it a law or a
crime the doing of which is vested in the Governor General,
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the Act is a delegation of legislative power, and is
unconstitutional and void. (People vs. Vera, supra).
The Probation Act does not, by the force of any of Its
provisions, fix and impose upon the provincial boards any
standard or guide in 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 Legislature does
seemingly on its own authority extend the benefits of the
probation Act to the provinces but in reality leaves the
entire matter for the various provincial boards to determine.
If a provincial board does not wish to have the Act applied
in its province, all that it has to do is to decline to
appropriate the needed amount for the salary of a probation
officer. This is a virtual surrender of legislative power to the
provincial boards. (People vs. Vera, supra).
and jurisdiction of the courts of justice to the officials to be
appointed or offices to be created by the Reorganization
Plan. Congress is well aware of the provision of the
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, or to take away from
them their jurisdiction and transfer said jurisdiction to create
courts of justice, or take away from them their jurisdiction
and transfer said jurisdiction to the officials appointed or
offices created under the Reorganization Plan. The
Legislature may 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, L-4465, 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. 921-922), Corominas.
Jr. vs. Labor Standards Commission, 2 SCRA 721.

The legislature may enact laws for a particular locality

different from those applicable to other localities and while
recognizing the f orce of the principle hereinabove
expressed, courts in many jurisdictions have sustained the
constitutionality of the submission of option laws to the vote
of the people. (6 R.C.L. 171). But option laws thus sustained
treat of subjects purely local in character which should
receive different treatment in different localities placed
under different circumstances. Without denying the right of
self-government and the propriety of leaving matters of
purely local concern in the hands of local authorities or for
the people of small communities to pass upon in the matters
of general legislation like that which treats of criminals in
general, and as regards the general 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. Distinction between power to make laws and discretion

as to its execution.

The true distinction is between the delegation of power to

make the law, which necessarily involves a discretion as to
what it shall be, and conferring an authority or discretion as
to its execution, to be exercised under and in pursuance of
the law. The first cannot be done; to the latter no valid
objection can be made. (Cincinnati, W. & Z. R. Co. vs.
Clinton Country Commissioners, 1 Ohio St. 77, 88.). See
also Sutherland on Statutory Construction, sec. 68. To the
same effect are decisions of the Supreme Court in the
Municipality of Cardona vs. Municipality of Binañgonan, 36
Phil 547; Rubi vs. Provincial Board of Mindoro, 39 Phil. 860;
Cruz vs. Youngberg, 56 Phil. 234; People vs. Vera, supra.—
ATTY. JULIANA B. DE CASTRO,

Note.—When delegation of legislative powers is not

alIowed. It was not the intention of Congress, in enacting
Republic Act No. 997, to authorize the transfer of powers

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