B.

Questions of Law
Administrative bodies may be allowed to resolve questions of law in
the exercise of their quasi-judicial function as an incident of their
primary power of regulation.

However as a rule, it is only the judicial tribunal that can interpret

and decide the question of law with finality.

ADMINISTRATIVE LAW
- Branch of public law that fixes the organization of the
government and determines competence of authorities who
execute the law and indicates to the individual remedies for the
violations of his rights.

b.
4.

- A body, other than the courts and the legislature, endowed

with quasi-legislative and quasi-judicial powers for the purpose of
enabling it to carry out laws entrusted to it for enforcement or
execution.

the legislature itself requires it and mandates that the

regulation shall be based on certain facts as
determined at an appropriate investigation;

ii.

the regulation is a settlement of a controversy

between specific parties; considered as an
administrative adjudication (Cruz, Philippine
Administrative Law, p.42 - 43); or

iii.

the administrative rule is in the nature of subordinate

legislation designed to implement a law by providing
its details (CIR v. Court of Appeals, 261 SCRA 236).

publication

Reasonable

Requisites for Validity of Administrative Rules With Penal

Sanctions:
1.

I. ADMINISTRATIVE BODIES OR AGENCIES

i.

2.
3.

law itself must declare as punishable the violation of

administrative rule or regulation;
law should define or fix penalty therefor; and
rule/regulation must be published.

Doctrine of Subordinate Legislation power of administrative

agency to promulgate rules and regulations on matters of their own
specialization.

How Created:

1. by constitutional provision;
2. by legislative enactment; and
3. by authority of law.
II. POWERS OF ADMINISTRATIVE
BODIES:

Doctrine of Legislative Approval by Re-enactment - the rules and

regulations promulgated by the proper administrative agency
implementing the law are deemed confirmed and approved by the
Legislature when said law was re-enacted by later legislation or
through codification. The Legislature is presumed to have full
knowledge of the contents of the regulations then at the time of reenactment.

1. Quasi-legislative or rule-making power;

2. Quasi-judicial or adjudicatory power; and
3. Determinative powers.
A.

QUASI-LEGISLATIVE
FUNCTIONS

QUASIJUDICIAL FUNCTIONS

QUASI-LEGISLATIVE OR RULEMAKING POWER

In exercise of delegated legislative power, involving no

discretion as to what law shall be, but merely authority to fix
details in execution or enforcement of a policy set out in law
itself.
Kinds:

1. Legislative regulation
a. Supplementary or detailed legislation, e.g. Rules and

1.

consists of
issuance of rules
and regulations

1.

refers to its end

product called
order, reward or
decision

2.

general
applicability

2. applies to a
specific situation

Regulations Implementing the Labor Code;

b. Contingent regulation
2. Interpretative legislation, e.g. BIR Circulars
Requisites for valid exercise:

1. Issued under authority of law;

2. Within the scope and purview of the law;
3. Promulgated in accordance with the prescribed procedure:
a.

notice and hearing generally, not required; only when:

3. prospective; it
envisages the
promulgation of a
rule or regulation
generally
applicable in the
future

3.

present
determination of
rights, privileges
or duties as of
previous or
present time or
occurrence

B. QUASI-JUDICIAL OR ADJUDICATORY POWER

Proceedings partake of nature of judicial proceedings.

Administrative body granted authority to promulgate its
own rules of procedure.

Two necessary conditions:

1. due process; and

2. jurisdiction
Includes the following powers:
1. Prescribe rules of procedure
2. Subpoena power
3. Contempt Power
Administrative Due Process:

1.
2.
3.
4.
5.
6.
7.

right to a hearing;
tribunal must consider evidence presented;
decision must have something to support itself;
evidence must be substantial;
decision must be based on evidence adduced at hearing or at
least contained in the record and disclosed to parties;
board of judges must act on its independent consideration of
facts and law of the case, and not simply accept view of
subordinate in arriving at a decision; and
decision must be rendered in such a manner that parties to
controversy can know various issues involved and reason for
decision rendered.(Ang Tibay vs CIR, 69 Phil 635)

Res judicata effect of Administritve Decisions

- has the force and binding effect of a final judgment (note: applies
only to judicial and quasi judicial proceedings not to exercise of
administrative functions, Brillantes vs. Castro 99 Phil. 497)
C. DETERMINATIVE POWERS

1.

enabling permit the doing of an act which the law undertakes

to regulate;
2. directing order the doing or performance of particular acts to
ensure compliance with the law and are often exercised for
corrective purposes
3. dispensing to relax the general operation of a law or to
exempt from general prohibition, or relieve an individual or a
corporation from an affirmative duty;
4. examining - also called investigatory power;
5. summary power to apply compulsion or force against persons
or property to effectuate a legal purpose without judicial
warrants to authorize such actions.
III. EXHAUSTION OF
ADMINISTRATIVE REMEDIES

1.

1.
Substantial Evidence relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.

2.
Administrative Determinations Where Notice and Hearing Not
Necessary:

1. summary proceedings of distraint and levy upon property of

Whenever there is an available administrative remedy

provided by law, no judicial recourse can be made until all
such remedies have been availed of and exhausted.
Doctrine of Prior Resort or (Doctrine of Primary
Administrative Jurisdiction) where there is competence or
jurisdiction vested upon administrative body to act upon a
matter, no resort to courts may be made before such
administrative body shall have acted upon the matter.
Doctrine of Finality of Administrative Action no resort to
courts will be allowed unless administrative action has been
completed and there is nothing left to be done in
administrative structure.
Judicial Relief from Threatened Administrative Action courts
will not render a decree in advance of administrative action and
thereby render such action nugatory. It is not for the court to
stop an administrative officer from performing his statutory
duty for fear he will perform it wrongly.

delinquent taxpayer;

2. grant of provisional authority for increase of rates, or to engage

3.
4.
5.
6.

in particular line of business;

cancellation of passport where no abuse of discretion is
committed;
summary abatement of nuisance per se which affects safety of
persons or property;
preventive suspension of officer or employee pending
investigation; and
grant or revocation of licenses for permits to operate certain
businesses affecting public order or morals.

Administrative Appeal or Review

1. Where provided by law, appeal from administrative

2.
3.

determination may be made to higher or superior

administrative officer or body.
By virtue of power of control of President, President himself or
through Department Head may affirm, modify, alter, or reverse
administrative decision of subordinate.
Appellate administrative agency may conduct additional
hearing in appealed case, if deemed necessary.

Effect of Failure to Exhaust Administrative Remedies: as a general

rule, jurisdiction of the court is not affected but the complaint is
vulnerable to dismissal due to lack of cause of action.
Exceptions to the Doctrine:

doctrine of qualified political agency (when the respondent is a

department secretary whose acts as an alter ego of the
President bears the implied and assumed approval of the
latter); except where law expressly provides exhaustion;
administrative remedy is fruitless;
where there is estoppel on part of administrative agency;
issue involved is purely legal;
administrative action is patently illegal, amounting to lack or
excess of jurisdiction;
where there is unreasonable delay or official inaction;
where there is irreparable injury or threat thereof, unless
judicial recourse is immediately made;
in land case, subject matter is private land;
where law does not make exhaustion a condition precedent to
judicial recourse;
where observance of the doctrine will result in nullification of
claim;

where there are special reasons or circumstances demanding

immediate court action; and
when due process of law is clearly violated.

2.
3.
4.

IV. JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS

When made:
1.

to determine constitutionality or validity of any treaty, law,

ordinance, executive order, or regulation;
to determine jurisdiction of any administrative board,
commission or officer;
to determine any other questions of law; and
to determine questions of facts when necessary to
determine either:
a. constitutional or jurisdictional issue;
b. commission of abuse of authority; and
c. when administrative fact finding body is unduly
restricted by an error of law.

2.
3.
4.

5.

possess sovereign functions of government to be exercised for

public interests;
functions defined expressly or impliedly by law;
functions exercised by an officer directly under control of law,
not under that of a superior officer unless they are functioned
conferred by law upon inferior officers, who by law, are under
control of a superior; (duties performed independently) and
with permanency or continuity, not temporary or occasional.

Characteristics:
-Public office is a public trust.
-Public office is not property and is outside the commerce of man. It
cannot be subject of a contract. (Cruz, Law on Public Officers, p.5)
II. PUBLIC OFFICERS
-

individuals vested with public office

Classification of Public Officers:

Modes of review:
1.
2.

3.
4.

Statutory;
Non-statutory inherent power of the court to review such
proceedings upon questions of jurisdiction and questions of
law;
Direct proceeding;
Collateral attack.

General Rule: Findings of facts of Administrative Agencies accorded

great weight by the Courts.

1.
2.
3.
4.
5.

Eligibility and qualification:

two senses:

1. may refer to endowments, qualities or attributes which

make an individual eligible for public office;

Exceptions to the Rule:

1.
2.
3.
4.
5.

factual findings not supported by evidence;

findings are vitiated by fraud, imposition or collusion;
procedure which led to factual findings is irregular;
palpable errors are committed; and
grave abuse of discretion, arbitrariness or capriciousness is
manifest.

Brandeis Doctrine of Assimilation of Facts one purports

to be finding of fact but is so involved with and dependent
upon a question of latter,courts will review the entire case
including the latter. law as to be in substance and effect a
decision on the .

Executive, legislative and judicial officers;

Discretionary or ministerial officers;
Civil or military officers;
Officers de jure or de facto; and
National, provincial or municipal officials

2. may refer to the act of entering into performance of

functions of public office.
Authority to prescribe qualification:

1. when prescribed by Constitution, ordinarily exclusive,

2.

the
legislature may not increase or reduce qualifications except
when Constitution itself provides otherwise as when only
minimum or no qualifications are prescribed( ex: Art XIII Sec 17
(2), Art VIII Sec 7 (2) Consti) ;
when office created by statute, Congress has generally plenary
power to prescribe qualification but such must be:
a. germane to purpose of office; and
b. not too specific so as to refer to only one individual.

III. DE FACTO OFFICERS

LAW ON PUBLIC OFFICERS
I.PUBLIC OFFICE
-

right, authority and duty created and conferred by law, by

which for a given period, either fixed by law or enduring at
pleasure of creating power, and individual is vested with some
sovereign functions of government to be exercised by him for
the benefit of the public.(Fernandez vs Sto Tomas, 234 SCRA
546)

Elements of Public Office: (LSDIP)

1.

created by law or ordinance authorized by law;

one who has reputation of being an officer that he assumes to

be, and yet is not an officer in point of law.
a person is a de facto officer where the duties of the office are
exercised under any of the following circumstances:
1. Without a known appointment or election, but under such
circumstances of reputation or acquiescence as were
calculated to induce people, without inquiry, to submit to
or invoke his action, supposing him to the be the officer he
assumed to be; or
2.

Under color of a known and valid appointment or election,

but where the officer has failed to conform to some
precedent requirement or condition (e.g., taking an oath
or giving a bond);

3.

Under color of a known election or appointment, void

because:
a.

2.

has color of right

or title to office

2.

has neither lawful title nor

color of right or title to
office

3.

acts are valid as to

the public until
such time as his
title to the office
is
adjudged
insufficient

3.

acts are absolutely void

and can be impeached in
any proceeding at any
time unless and until he
continues to act for so
long a time as to afford a
presumption of his right
to act

4.

entitled to
compensation for
services rendered

4.

not
entitled
compensation

the officer was not eligible;

b.

4.

there was a want of power in the electing or

appointing body;
c. there was a defect or irregularity in its exercise;
such ineligibility, want of power, or defect being
unknown to the public.
Under color of an election or an appointment by or
pursuant to a public, unconstitutional law, before the
same is adjudged to be such.

Note: Here, what is unconstitutional is not the act creating the

office, but the act by which the officer is appointed to an office
legally existing. (Norton v. County of Shelby)
Requisites:
1.
2.
3.
4.
5.
6.

7.

valid existing office;

actual physical possession of said office;
color of title to office;
by reputation or acquiescence;
known or valid appointment or election but officer failed to
conform with legal requirements;
known appointment or election but void because of ineligibility
of officer or want of authority of appointing or electing
authority or irregularity in appointment or election not known
to public; and
known appointment or election pursuant to unconstitutional
law before declaration of unconstitutionality.
DE JURE

DE FACTO

OFFICER

OFFICER

1.

rests on the right

1.

on reputation

2.

has lawful or title

to the office

2.

has
possession
and
performs the duties under
color of right without
being technically qualified
in all points of law to act

3.

cannot be
removed in a
direct proceeding

3.

DE FACTO OFFICER

1.

officer under any

of
the
4
circumstances
mentioned

may be ousted in a direct

proceeding against him.

INTRUDER

1.

one who takes possession

of
an
office
and
undertakes to act officially
without any authority,
either actual or apparent

to

Legal Effects of Acts

-

valid insofar as they affect the public

Entitlement to Salaries
General Rule: rightful incumbent may recover from de facto officer
salary received by latter during time of wrongful tenure even
though latter is in good faith and under color of title.(Monroy v.
CA, 20 SCRA 620)
Exception: when there is no de jure public officer, de facto officer
entitled to salaries for period when he actually discharged
functions.(Civil Liberties Union v. Exec. Sec., 194 SCRA 317)
Challenge to a De Facto Officer: must be in a direct proceeding where
the title will be the principal issue

IV. COMMENCEMENT OF OFFICIAL RELATIONS:

1.
2.

by appointment; or
by election

Appointment selection, by authority vested with power, of

individual who is to perform functions of a given office.

Essentially a discretionary power and must be performed

by the officer in which it is vested according to his best
lights, the only condition being that the appointee should
possess the minimum qualification requirements
prescribed by law for the position (Nachura, Reviewer in
Political Law, p. 305)

Commission written evidence of appointment.

Designation imposition of additional duties, usually by law,

on a person already in public office.

Classification of Appointments:

Classifications of vacancy:

1.

1. original when an office is created and no one has

2.

3.

4.

5.

Permanent extended to person possessing requisite

qualification for the position and thus enjoys security of
tenure;
Temporary acting appointment, given to a non-civil
service eligible is without a definite tenure and is
dependent upon the pleasure of the appointing power;
Provisional- is one which may be issued upon prior
authorization of the Commissioner of Civil service in
accordance with the provisions of the Civil Service Law and
the rule and standards to a person who has no t qualified
in an appropriate examination but who otherwise meets
the requirements for appointment to a regular position in
the competitive service, whenever a vacancy occurs and
the filling thereof is necessary in the interest of the service
and there is no appropriate register of those who are
eligible at the time of appointment;
Regular made by President while Congress is in session
and becomes effective after nomination is confirmed by
the Commission on Appointments and continues until the
end of term; and
Ad-interim
a. Recess -- made while Congress is not in session,
before confirmation, is immediately effective, and
ceases to be valid if disapproved or bypassed by CA
upon next adjournment of Congress;
b. Midnight made by the President before his term
expires, whether or not this is confirmed by the
Commission on Appointments.
Regular
appointment

Ad interim
appointment

Made during the

legislative session

Made during the

recess

Made only after

the nomination is
confirmed by the
Commission on
Appointments (CA)

Made before such

confirmation

Once confirmed by
the CA continues
until t he end of
the term of the
appointee

Shall cease to be
valid if
disapproved by
the CA or upon the
next adjournment

been appointed to fill it;

2. constructive when the incumbent has no legal right

3.
4.

or claim to continue in office and can be legally

replaced by another functionary;
accidental when the incumbent having died,
resigned, or been removed;
absolute when the term of an incumbent having
expired and the latter not having held over, no
successor is in being who is legally qualified to
assume the office.

V. POWERS AND DUTIES OF A

PUBLIC OFFICER:
1.
2.

Ministerial discharge is imperative and requires neither

judgment nor discretion, mandamus will lie; and
Discretionary imposed by law wherein officer has right to
decide how and when duty shall be performed, mandamus will
not lie.

II.

LIABILITY OF PUBLIC OFFICER

General Rule: not liable for injuries sustained by another as a

consequence of official acts done within the scope of his authority,
except as otherwise provided by law.

Public Officer shall not be civilly liable for acts done in the
performance of his duties

Exceptions:

1. statutory liability under the Civil Code (Arts. 27, 32 and 34);
2. When there is a clear showing of bad faith, malice or negligence
(Administrative Code of 1987);

3. liability on contracts; and

4. liability on tort .
Threefold Liability Rule wrongful acts or omissions of public
officers may give rise to civil, criminal, and administrative
liability. (CAC liability rule)

Liability of Ministerial Officers:

Nepotism all appointments in the national, provincial, city
and municipal governments or in any branch or instrumentality
thereof, including GOCC, made in favor of a relative of the (1)
appointing or (2) recommending authority or of the (3) chief of
the bureau or office or of the (4) persons exercising immediate
rd
supervision over him. A relative is one within the 3 degree
either of consanguinity or affinity
Vacancy when an office is empty and without a legally
qualified incumbent appointed or elected to it with a lawful
right to exercise its powers and performs its duties.

1.
2.
3.

Nonfeasance neglect or refusal to perform an act which is

officers legal obligation to perform;
Misfeasance failure to use that degree of care, skill and
diligence required in the performance of official duty; and
Malfeasance doing, through ignorance, inattention or malice,
of an act which he had no legal right to perform.

Doctrine of Command Responsibility

1.
2.
3.
4.
5.

Rules on Preventive Suspension:

A superior officer is liable for acts of a subordinate when:

(ERCAL)
he negligently or willfully employs or retains unfit or
incompetent subordinates;
he negligently or willfully fails to require subordinate to
conform to prescribed regulations;
he negligently or carelessly oversees business of office as to
furnish subordinate an opportunity for default;
he directed or authorized or cooperated in the wrong; or
law expressly makes him liable.

1.

Appointive Officials

Not a Presidential Appointee (Secs. 41-42, P.D. 807):

a.

by whom the proper disciplining authority may

preventively suspend;

b.

against whom any subordinate officer or employee

under such authority;

c.
d.

when pending an investigation;

grounds if the charge against such officer or employee
involves:
i.
dishonesty;

Under the Revised Admin. Code of 1987, A Superior Officer

shall be liable for acts of subordinate officers only if he has
actually authorized be written order the specific act or
misconduct complained.
Subordinate officers are also liable for willful or negligent acts
even if he acted under orders if such acts are contrary to law,
morals, public policy and good customs

- a precautionary measure so that an employee who is

formally charged of an offense may be separated from the scene of
his alleged misfeasance while the same is being investigated
(Bautista v. Peralta, 18 SCRA 223)
- need not be preceded by prior notice and hearing since it is
not a penalty but only a preliminary step in an administrative
investigation (Lastimosa v. Vasquez, 243 SCRA 497)
- the period of preventive suspension cannot be deducted from
whatever penalty may be imposed upon the erring officer (CSC
Resolution No. 90-1066)

PENDING

PENDING

INVESTIGATION

APPEAL

[Sec.51, E.O.292]

[Sec.27(4), E.O. 292]

1. not a penalty but

only a means of
enabling the
disciplinary
authority to
conduct an
unhampered
investigation.

2. no compensation
due for the period
of suspension
even if found
innocent of the
charges.

1. Punitive in
character

2. If exonerated, he
should be
reinstated with full
pay for the period
of suspension.

oppression or grave misconduct;

iii.

neglect in the performance of duty; or

iv.

e.

Preventive Suspension

ii.

if there are reasons to believe that respondent is

guilty of the charges which would warrant his
removal from the service
duration the administrative investigation must be
terminated within 90 days; otherwise, the respondent
shall be automatically reinstated unless the delay in the
disposition of the case is due to the fault, negligence or
petition of the respondent, in which case the period of
delay shall not be counted in computing the period of
suspension.

A Presidential Appointee:
a.

can only be investigated and removed from office after

due notice and hearing by the President of the Philippines
under the principle that the power to remove is inherent
in the power to appoint as can be implied from Sec. 5,
R.A.2260 (Villaluz v. Zaldivar, 15 SCRA 710).

b.

the Presidential Commission Against Graft and Corruption

(PCAGC) shall have the power to investigate administrative
complaints against presidential appointees in the
executive department of the government, including GOCCs
charged with graft and corruption involving one or a
combination of the following criteria:
i.

presidential appointees with the rank equivalent to or

higher than an Assistant Regional Director;

ii.

amount involved is at least P10M;

iii.

those which threaten grievous harm or injury to the

national interest; and

iv.

those which may be assigned to it by the President

(E.O. No. 151 and 151-A).

2.

Elective Officials: (Sec 63, R.A. 7160)

a.

Preventive Suspension public officer not entitled during

the period of preventive suspension, but upon exoneration
and reinstatement he must be paid full salaries and
emoluments during such period.

by whom against whom

i.

President elective official of a province, a highly

urbanized or an independent component city;

ii.

Governor elective official of a component city or

municipality;

iii.

Mayor elective official of a barangay

b.

when at any time after the issues are joined;

c.

grounds:
i.
reasonable ground to believe that the respondent has
committed the act or acts complained of;
ii.

evidence of culpability is strong;

iii.

gravity of the offense so warrants;

Back salaries are also payable to an officer illegally

dismissed or otherwise unjustly deprived of his office the
right to recover accruing from the date of deprivation. The
claim for back salaries must be coupled with a claim for
reinstatement and subject to the prescriptive period of
one (1) year. (Cruz, Law on Public Officers, p126-126)

Forms of Compensation:
a.

iv.

d.

continuance in office of the respondent could

influence the witnesses or pose a threat to the safety
and integrity of the records and other evidence
duration:
i.
single administrative case not to extend beyond 60
days;
ii.

b.
c.
d.

several administrative cases not more than 90 days

within a single year on the same ground or grounds
existing and known at the time of the first suspension

Section 24 of the Ombudsman Act (R.A. 6770) expressly

provide that the preventive suspension shall continue
until the case is terminated by the Office of the
Ombudsman but not more than 6 months without pay.
The preventive suspension for 6 months without pay is
thus according to law (Lastimosa v. Vasquez, 243 SCRA
497)
R.A. 3019 makes it mandatory for the Sandiganbayan to
suspend, for a maximum period of 90 days unless the case is
decided within a shorter period, any public officer against
whom a valid information is filed charging violation of:

e.

3. Right to Preference in Promotion

Promotion movement from one position to another with
increase in duties and responsibilities as authorized by law
and usually accompanied by an increase in pay.

1.

R.A. 3019;

Next-in-Rank Rule the person next in rank shall be given

preference in promotion when the position immediately
above his is vacated. But the appointing authority still
exercises his discretion and is not bound by this rule.

2.

Book II, Title 7, Revised Penal Code; or

3.

offense involving fraud upon government or public funds

or property (Cruz, The Law of Public Officers, pp. 86-87)

Right to Office just and legal claim to exercise powers and

responsibilities of the public office.

2.

Term period during which officer may claim to hold

office as a right.
Tenure period during which officer actually holds
office.

Right to Salary
Basis: legal title to office and the fact the law attaches
compensation to the office.
Salary compensation provided to be paid to public
officer for his services.

Appointing officer is only required to give special

reasons for not appointing officer next in rank if he fills
vacancy by promotion in disregard of the next in rank
rule. (Pineda vs. Claudio, 28 SCRA 34)

Automatic Reversion Rule all appointments involved in

chain of promotions must be submitted simultaneously for
approval by the Commission, the disapproval of the
appointment of a person proposed to a higher position
invalidates the promotion of those in the lower positions
and automatically restores them to their former positions.

VII. RIGHTS OF PUBLIC OFFICERS:

1.

salary personal compensation to be paid to public

officer for his services and it is generally a fixed
annual or periodical payment depending on the time
and not on the amount of the service he may render;
per diem allowance for days actually spent in the
performance of official duties;
honorarium something given as not as a matter of
obligation, but in appreciation for services rendered;
fee payment for services rendered or on
commission on moneys officially passing through
their hands; and
emoluments profits arising from the office, received
as compensation for services or which is annexed to
the office as salary, fees, or perquisites.

4.

Right to vacation leave and sick leave with pay;

5.

Right to maternity leave;

6.

Right to pension and gratuity;

Pension regular allowance paid to an individual or a
group of individuals by the government in consideration of
services rendered or in recognition of merit, civil or
military.

Gratuity a donation and an act of pure liberality on the

part of the State.

7.

Right to retirement pay;

8.

Right to reimbursement for expenses incurred in performance of

duty;

9.

Right to be indemnified against any liability which they may

incur in bona fide discharge of duties; and

Accepting Authority for Resignation:

1.
2.
3.

10. Right to longevity pay.

to competent authority provided by law;

If law is silent and public officer is appointed, tender to
appointing officer;
If law is silent and public officer is elected, tender to officer
authorized by law to call election to fill vacancy:
a. President and Vice-President - Congress
b. Members of Congress - respective Chambers
e. Governors, Vice Governors, Mayors and Vice Mayors of
HUCs and independent component cities - President.
f.
Municipal Mayors and Vice Mayors/City Mayors and Vice
Mayors of component cities - Provincial Governor;
g. Sanggunian Members Sanggunian concerned; and
h. Elective Barangay Officials Municipal or City Mayors
Recall - termination of official relationship for loss of
confidence prior to expiration of his term through the will of
the people.

11. Right to Self-Organization

Art III, Sec 8 1987Consti. Note: Civil servants are now given the right
to self organize but they may not stage strikes (see: SSS Employees
Assoc. vs. CA, 175 SCRA 686)

Limitations on Recall:
VIII. MODES OF TERMINATION

1. any elective official may be subject of a recall election only

once during his term of office for loss of confidence; and

OFFICIAL RELATIONSHIP:
(TR3A3P DIFC2IT)
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.

expiration of term or tenure;

reaching the age limit;
resignation;
recall;
removal;
abandonment;
acceptance of incompatible office;
abolition of office;
prescription of right to office (within one year after the cause of
ouster or the right to hold such office or position arose);
impeachment;
death;
failure to assume elective office within 6 months from
proclamation;
conviction of a crime; and
filing of certificate of candidacy.

2. no recall shall take place within one year from date of the
officials assumption to office or one year immediately
preceding a regular local election.
Procedure for Recall (Secs. 70-72, R.A. 7160)
1.

Initiation of the Recall Process:

a.

When public officer holds office at pleasure of appointing

power, his replacement amounts to expiration of his term, not
removal.(Alajar vs Alba, 100 Phil 683)

i.

Provincial mayors, vice mayors and sanggunian (sg)

members of the municipalities and component cities;

ii.

City punong barangay and (sg) barangay members;

iii.

Legislative District:

iv.

Principle of Hold-Over if no express or implied Constitutional or

statutory provision to the contrary, public officer is entitled to hold
office until successor has been chosen and shall have qualified.

iiia.

SG Panlalawigan municipal officials in the

district;

iiib.

SG Panglunsod barangay officials in the

district;

Municipal - punong barangay and (sg) barangay

members;
majority of the PRA members shall convene in session
in a public place;

Members of Judiciary : 70 years of age

recall of the officials concerned shall be validly

initiated through a resolution adopted by a majority
of all the PRA members concerned
by the Registered Voters (RV) in the province, city,
municipality or barangay (LGU) concerned - at least 25%
of the total number of RV in the LGU concerned during the
election in which the local official sought to be recalled
was elected;

Other government officers and employees : 65 years of age

i.

Purpose: to prevent hiatus in public office. (But subject to Art.

237 of RPC)

Retirement:

by a Preparatory Recall Assembly (PRA) composed of:

Optional retirement age: after rendition of minimum number of

years of service.

b.

written petition filed with the COMELEC in the

presence of the representative of the petitioner and a
representative of the official sought to be recalled,
and in a public place of the LGU;

ii.

COMELEC shall cause the publication of the petition

in a public and conspicuous place for a period of not
less than 10 days nor more than 20 days

iii.

upon lapse of the said period, COMELEC shall

announce the acceptance of candidates and shall
prepare the list of candidates which shall include the
name of the official sought to be recalled

terrorism, fraud or other analogous causes. (Joseph

Peter Sison v. COMELEC, G.R. No. 134096, March 3,
1999)

3. Election on Recall COMELEC shall set the date of the election

on recall:
a. for barangay, city or municipal officials not later than 30
days after the filing of the resolution or petition;
b.

for provincial officials - not later than 45 days after the

filing of the resolution or petition;

4. Effectivity of Recall only upon the election and proclamation

of a successor in the person of the candidate receiving the

highest number of votes cast during the election on recall.

Should the official sought to be recalled receive the

highest number of votes, confidence in him is thereby
affirmed, and he shall continue in office.

ELECTION LAW

I.SUFFRAGE
- right to vote in election of officers chosen by people and in
the determination of questions submitted to people. It
includes:
1.
2.
3.
4.

Postponement of Elections - An election may be postponed by

the COMELEC either motu proprio or upon a verified petition by
any interested party when there is violence, terrorism, loss or
destruction of election paraphernalia or records, force majeure,
or other analogous cause of such a nature that the holding of a
free, orderly and honest election becomes impossible in any
political subdivision. (Sec. 5, B.P. 881)

election;
plebiscite;
initiative; and
referendum.

Election means by which people choose their officials for a

definite and fixed period and to whom they entrust for time
being the exercise of powers of government.

Kinds:
1.

2.

Regular election one provided by law for election of

officers either nationwide or in certain subdivisions
thereof, after expiration of full term of former members;
and
Special election one held to fill vacancy in office before
expiration of full term for which incumbent was elected.

Failure of Elections there are only 3 instances where a

failure of elections may be declared, namely:
a.

b.

c.

The election in any polling place has not been held on

the date fixed on account of force majeure, violence,
terrorism, fraud, or other analogous causes;
The election in any polling place had been suspended
before the hour fixed by law for the closing of the
voting on account of force majeure, violence,
terrorism, fraud, or other analogous causes; and
After the voting and during the preparation and
transmission of the election returns or in the custody
or canvass thereof such election results in a failure to
elect on account of force majeure, violence,

What is common in these three instances is the

resulting failure to elect. In the first instance, no
election is held while in the second, the election is
suspended. In the third instance, circumstances
attending the preparation, transmission, custody or
canvass of the election returns cause a failure to
elect. The term failure to elect means nobody
emerged as a winner. (Pasandalan vs. Comelec, G.R.
No. 150312, July 18, 2002)
The causes for the declaration of a failure of election
may occur before or after the casting of votes or on
the day of the election. (Sec. 4, R.A. 7166)
The COMELEC shall call for the holding or
continuation of the election on a date reasonably
close to the date of the election not held, suspended,
or which resulted in a failure to elect but not later
than 30 days after the cessation of the cause of such
suspension or failure to elect. (Sec. 6, B.P. 881)
In such election, the location of polling places shall be
the same as that of the preceding regular election.
However, changes may be initiated by written
petition of the majority of the voters of the precinct
or agreement of all the political parties or by
resolution of the Comelec after notice and hearing.
(Cawasa vs. Comelec, G.R. No. 150469, July 3, 2002)

The COMELEC shall call for the holding of the election on a

date reasonably close to the date of the election not held,
suspended, or which resulted in a failure to elect but not
later than 30 days after the cessation of the cause for such
postponement or suspension of the election or failure to
elect. (Sec. 5, B.P. 881)

Qualification for Suffrage:

1.
2.
3.
4.
5.

Filipino citizen;
At least 18 years of age;
Resident of the Philippines for at least one year;
Resident of place where he proposes to vote for at least 6
months; and
Not otherwise disqualified by law.

Disqualification:
1.

2.

person convicted by final judgment to suffer imprisonment for

not less than 1 year, unless pardoned or granted amnesty; but
right reacquired upon expiration of 5 years after service of
sentence;
person adjudged by final judgment of having committed any
crime involving disloyalty to government or any crime against

3.

national security; but right is reacquired upon expiration of 5

years after service of sentence; and
insane or incompetent persons as declared by competent
authority (Sec. 118, OEC).

Guidelines for screening party-list participants

1. The political party, sector, organization or coalition must

2.
II. POLITICAL PARTY
- organized group of citizens advocating an ideology or
platform, principles and policies for the general conduct of
government and which, as the most immediate means of securing
their adoption, regularly nominates and supports certain of its
leaders and members as candidate in public office. (Bayan Muna v.
Comelec, GR No. 147613, June 28, 2001)

3.

4.

To acquire juridical personality and to entitle it to rights

and privileges granted to political parties, it must be
registered with COMELEC

policies for the general conduct of government and which,

as the most immediate means of securing their adoption,
regularly nominates and supports certain of its leaders and
members as candidate in public office. (Bayan Muna v.
Comelec, GR No. 147613, June 28, 2001)

To acquire juridical personality and to entitle it to rights

and privileges granted to political parties, it must be
registered with COMELEC.

Groups Disqualified for Registration:

1.
2.
3.
4.

religious denominations or sects;

those who seek to achieve their goals through violence or
unlawful means;
those who refuse to uphold and adhere to Constitution; and
those supported by foreign governments.

5.
6.

Grounds for Cancellation of

Registration:

1.
2.

accepting financial contributions from foreign governments or

their agencies; and
failure to obtain at least 10% of votes casts in constituency
where party fielded candidates.

Party System a free and open party system shall be allowed to

evolve according to free choice of people.

represent the marginalized and underrepresented groups

identified in Sec. 5 of RA 7941. Majority of its member-ship
should belong to the marginalized and underrepresented;
While even major political parties are expressly allowed by RA
7941 and the Constitution, they must comply with the declared
statutory policy of Filipino citizens belonging to marginalized
and under-represented sectors to be elected to the House of
Representatives. Thus, they must show that they represent
the interest of the marginalized and underrepresented.
That religious sector may not be represented in the party-list
system; except that priests, imam or pastors may be elected
should they represent not their religious sect but the
indigenous community sector;
A party or an organization must not be disqualified under Sec.
6, RA 7941 as follows:
a. it is a religious sect or denomination, organization or
association organized for religious purposes;
b. it advocates violence or unlawful means to seek its goals;
c. it is a foreign party or organization;
d. it is receiving support from any foreign government,
foreign political party, foundation, organization, whether
directly or through any of its officers or members or
indirectly through third parties for partisan election
purposes;
e. it violates or fails to comply with laws, rules or regulation
relating to elections;
f. it declares untruthful statements in its petition;
g. it has ceased to exist for at least one (1) year; or
h. it fails to participate in the last two (2) preceding elections
or fails to obtain at least two per centum (2%) of the votes
cast under the party-list system in two (2) preceding
elections for the constituency in which it has registered.
the party or organization must not be an adjunct of, or a
project organized or an entity funded or assisted by, the
government.
the party, including its nominees must comply with the
qualification requirements of section 9, RA 7941 as follows: No
person shall be nominated as party-list representative unless he
is: (a) natural-born citizen of the Philippines; (b) a registered
voter; (c) a resident of the Philippines for a period of not less
than one year immediately preceding the day of the election;
(d) able to read and write; (e) a bona fide member of the party
or organization which he seeks to represent for at least 90 days
preceding the day of the election; and (f) at least 25 years of
age on the day of the election. In case of a nominee of the
youth sector, he must at least be twenty five (25) but not more
than thirty (30) years of age on the day of the election. Any
youth sectoral representative who attains the age of thirty (30)
during his term shall be allowed to continue in office until the
expiration of his terms;

no votes cast in favor of political party, organization or

coalition shall be valid except for those registered under
the party-list system provided in the Constitution;
political parties registered under party-list system shall be
entitled to appoint poll watchers in accordance with law;
and
part-list representatives shall constitute 20% of total
number of representatives in the House.

7. not only the candidate party or organization must represent

8.

marginalized and underrepresented sectors, so also must its

nominees;
while lacking the a well-defined political constituency, the
nominee must likewise be able to contribute to the formation
and enactment of appropriate legislation that will benefit the

nation as a whole. (Ang Bagong Bayani-OFW Labor Party, v.

COMELEC, GR No. 147589, June 26, 2001).
III. DISQUALIFICATION OF

NATIONAL

LOCAL

POSITIONS

POSITIONS

CANDIDATES:
1.
2.

3.
4.
5.

declared as incompetent or insane by competent authority;

convicted by final judgment for subversion, insurrection,
rebellion or any offense for which he has been sentenced to a
penalty of 18 months imprisonment;
convicted by final judgment for crime involving moral
turpitude;
any person who is permanent resident of or immigrant to a
foreign country; and
one who has violated provisions on:
a. campaign period;
b. removal, destruction of lawful election propaganda;
c. prohibited forms of propaganda;
d. regulation of propaganda through mass media; and
e. election offenses.

1.

2.

Lawful election Propaganda (sec. 3):

1.
2.
3.

Written/Printed Materials (does not exceed 8 in. width by 14

in. length)
Handwritten/printed letters
Posters (not exceeding 2 x 3 ft.)

4.

3 by 8 ft. allowed in announcing, at the site and on

the occasion of a public meeting or rally, may be
displayed 5 days before the date of rally but shall be
removed within 24 hours after said rally.
Print Ads

5.

page in broadsheets and page in tabloids thrice a

week per newspaper, magazine or other publication
during the campaign period
Broadcast Media (i.e. TV and Radio)

60 minutes
for TV

2.

180 minutes
for Radio

2.

90 minutes
for Radio

Limitation on Expenses:
1.

for candidates:

IV. FAIR ELECTIONS ACT OF 2001 (RA 9006)

1.

Public exhibition of movie, cinematograph or documentary

portraying the life or biography of a candidate during campaign
period;
Public exhibition of a movie, cinematograph or documentary
portrayed by an actor or media personality who is himself a
candidate;
Use of airtime for campaign of a media practitioner who is an
official of a party or a member of the campaign staff of a
candidate or political party;

Nuisance Candidate
COMELEC may motu propio or upon petition of
interested party, refuse to give due course to or
cancel certificate of candidacy if shown that said
certificate was filed:
1. to put election process in mockery or disrepute;
2. to cause confusion among voters by similarity of names of
registered candidates;
3. by other circumstances or acts which demonstrate that a
candidate has no bona fide intention to run for office for which
certificate has been filed, and thus prevent a faithful
determination of true will of electorate.

120 minutes
for TV

Prohibited Campaign

3.
- When a candidate has not yet been disqualified by final
judgment during the election day and was voted for, the votes
cast in his favor cannot be declared stray. To do so would
amount to disenfranchising the electorate in whom sovereignty
resides. (Codilla vs. Hon. Jose De Venecia, G.R. No. 150605,
December 10, 2002)

1.

2.

President and Vice President = P10/voter;

Other candidates, if with party = P3/voter;

Other candidates, if without party = P5/voter.

for political parties = P5/voter

Statement of Contribution and Expenses

every candidate and treasurer of political party shall, within 30

days after day of election, file offices of COMELEC the full, true
and itemized statement of all contribution and expenditures in
connection with election.

Election Survey

The SC held that Sec. 5.4 of the Fair Election Act prohibiting
publication of survey results 15 days immediately preceding a
national election and 7 days before a local election violates the
constitutional rights of speech, expression, and the press
because:

it imposes a prior restraint on the freedom of expression;

It is a direct and total suppression of a category of

expression even though such suppression is only for a
limited period; and

the governmental interest sought to be promoted can be

achieved by means other than the suppression of freedom
of expression. (Social Weather Station v. Comelec, G.R. No.
147571 May 5, 2001)

Substituted and Substitute Candidate

Returns include the canvass of returns and proclamation of

winners, together with questions concerning composition of
Board of Canvassers and authenticity of election returns.

- In case of valid substitutions after the officials ballots

have been printed, the votes cast for the substituted candidates
shall be considered as stray votes but shall not invalidate the whole
ballot. For this purpose, the official ballots shall provide for spaces
where the voters may write the name of the substitute candidates if
they are voting for the latter: Provided, however, That if the
substitute candidate is of the same family name, this provision shall
not apply.(Sec.12)

V. PRE-PROCLAMATION
CONTROVERSY

Any question pertaining to or affecting proceedings of

Board of Canvassers which may be raised by any candidate
or by a registered political party or coalition of political
parties before the board or directly with COMELEC or any
matter raised under Sections 233, 234, 235, and 236, in
relation to preparation, transmission, receipt, custody and
appreciation of election returns.

Qualifications matter which could be raised in a quo

warranto proceedings against the proclaimed winner, such as
his disloyalty to the Republic or his ineligibility or inadequacy of
his certificate of candidacy.

Original Exclusive Jurisdiction Over Election Contests

1.
2.
3.
4.
5.
6.

Appellate Jurisdiction:
1.

3.

4.

Illegal composition or proceedings of the board of Canvassers;

Canvassed election returns are incomplete, contain material
defects, appears to be tampered with or falsified; or contain
discrepancies in the same returns or in other authentic copies
thereof as mentioned in Sec. 233,234,235 and 236 of BP 881;
Election returns were prepared under duress, threat, coercion,
or intimidation, or they are obviously manufactured or not
authentic; and
When substitute of fraudulent returns in controverted polling
places were canvassed, the results of which materially affected
the standing of the aggrieved candidate/s.

For decisions of RTC and MTC

Issues which may be raised in a Pre-Proclamation Controversy:

1.
2.

President and Vice-President - Supreme Court en banc

Senator - Senate Electoral Tribunal
Representative - HR Electoral Tribunal
Regional/Provincial/City - COMELEC
Municipal - RTC
Barangay - MTC

2.

appeal to COMELEC whose decision shall be final and

executory;
For decisions of COMELEC

3.

petition for review on Certiorari with SC within 30 days

from receipt of decision on ground of grave abuse of
discretion amounting to lack or excess of jurisdiction or
violation of due process;
For decisions of Electoral Tribunal

petition for review on Certiorari with SC on ground of

grave abuse of discretion amounting to lack or excess of
jurisdiction or violation of due process.

Actions Which May Be Filed:

III. ELECTION CONTESTS

1.

Nature: special summary proceeding object of which is to expedite

settlement of controversies between candidates as to who received
majority of legal votes.

Election Protest
- May be filed by any candidate who has filed a certificate of
candidacy and has been voted upon for the same officer;
Grounds:
a.
b.
c.
d.

Purpose: to ascertain true will of people and duly elected officer,

and this could be achieved by throwing wide open the appeal before
the court.

fraud;
terrorism;
irregularities; or
illegal acts

committed before, during, or after casting and counting of

votes
Time to file: within 10 days from proclamation of results of
election.

Contest: any matter involving title or claim of title to an elective

office, made before or after proclamation of winner, whether or not
contestant is claiming office in dispute.
Election, Returns and qualification refers to all matters affecting
validity of the contestees title to the position.

Election conduct of the polls, including the registration of

voters, holding of election campaign, and casting and counting
of votes.

2.

Quo warranto
- Filed by any registered voter in the constituency

Grounds:
a. ineligibility; or
b. disloyalty to Republic.
Time to file: within 10 days from proclamation of results of
election.

QUO WARRANTO

QUO WARRANTO

IN ELECTIVE

IN APPOINTIVE OFFICE

OFFICE
1. determination is
eligibility of
candidate-elect
2. when person
elected is declared
ineligible, court
nd
cannot declare 2
placer as elected,
even if eligible

IV.

1. determination is
legality of
appointment
2.
court
may
determine as to
who among the
parties has legal
title to office

ELECTION OFFENSES

Vote-Buying and Vote-Selling

(1) Any person who gives, offers or promises money or
anything of value, gives or promises any office or
employment, franchise or grant, public or private, or
makes or offers to make an expenditure, directly or
indirectly, or cause an expenditure to be made to any
person, association, corporation, entity, or community in
order to induce anyone or the public in general to vote for
or against any candidate or withhold his vote in the
election, or to vote for or against any aspirant for the
nomination or choice of a candidate in a convention or
similar selection process of a political party.
(2) Any person, association, corporation, group or
community who solicits or receives, directly or indirectly,
any expenditure or promise of any office or employment,
public or private, for any of the foregoing considerations.
(Sec. 261, B.P. 881)

One of the effective ways of preventing the

commission of vote-buying and of prosecuting those
committing it is the grant of immunity from criminal
liability in favor of the party (person/s) whose vote
was bought. This grant of immunity will encourage
the recipient or acceptor to come into the open and
denounce the culprit-candidate, and will ensure the
successful prosecution of the criminal case against
the latter. (Comelec vs. Hon. Tagle, G.R. Nos. 148948
& 148951, February 17, 2003)

Local Autonomy in its constitutional sense, to polarize LGUs from

over dependence on central government and do not make LGUs
mini-republics or imperium in imperia.
Decentralization of Administration central government delegates
administrative powers to political subdivisions in order to broaden
base of government power and in process make LGUs more
responsive and accountable and ensure their fullest development as
self-reliant communities and make them effective partners in the
pursuit of national development and social progress.
Decentralization of Power involves abdication of political power in
favor of LGUs declared autonomous.(Limbona v. Mengelin, 170
SCRA 786).
Devolution act by which national government confers power and
authority upon various LGUs to perform specific functions and
responsibilities.[Sec.17(e), par.2, LGC].
Declaration of Policy:
1.

Territorial and subdivisions of State shall enjoy genuine and

meaningful local autonomy to enable them to attain fullest
development and make them more effective partners in
attaining national goals;
2. Ensure accountability of LGUs through institution of effective
mechanisms of recall, initiative and referendum; and
3. Require all national agencies and offices to conduct periodic
consultations with appropriate LGUs, NGOs and Peoples
Organizations and other concerned sector of community before
any project or program is implemented in their respective
jurisdictions.
Rules on Interpretation:
1.
2.
3.
4.

5.
LAW ON PUBLIC CORPORATION
I. LOCAL GOVERNMENT CODE OF 1991 (R.A. 7160)

Effectivity: January 1, 1992

Scope of Application of Local
Government Code:
Applicable to:

all provinces,

cities,
municipalities,
barangays;
and other political subdivisions as may be created by law; and
to the extent provided in the Local Government Code:
a. to officials,
b. offices, or
c. agencies of the National Government.

6.

provision on power: liberally interpreted in favor of LGU; in case

of doubt, resolved in favor of devolution of powers;
ordinance or revenue measure: construed strictly against LGU
enacting it and liberally in favor of tax payer;
tax exemptions, incentive or relief granted by LGU: construed
against person claiming;
general welfare provisions: liberally interpreted to give more
powers to LGUs in accelerating economic development and
upgrading quality of life for people in community;
rights and obligations existing on date of effectivity of LGC of
1991 and arising out of contracts or any other source of
prestation involving LGU, shall be governed by original terms
and conditions of said contracts or law in force at time such
rights were vested; and
resolution of controversies arising under LGC of 1991 where no
legal provision or jurisprudence applies, resort may be had to
customs and traditions in place where controversies take place.

II. PUBLIC CORPORATION

developmental processes and effective governance of LGUs

within its territorial jurisdiction.

- one formed and organized for the government of a portion of

the State.
Elements of Public Corporation:
1. legal creation or incorporation;
2. corporate name;
3. inhabitants; and
4. territory.
Classes of Corporation:
1.
2.

3.

Quasi-corporation public corporations created as agencies of

State for narrow and limited purposes.
Municipal corporation body politic and corporate constituted
by incorporation of inhabitants of city or town purposes of local
government thereof or as agency of State to assist in civil
government of the country.
Quasi-public corporation private corporation that renders
public service or supplies public wants.
PUBLIC

PRIVATE

CORPORATION

CORPORATION

1. established for
purposes of
administration of civil
and local governments

1. created for private

aim, gain or benefit of
members

2.

City composed of more urbanized and developed barangays,

serves as a general purpose government for coordination and
delivery of basic, regular and direct services and effective
governance of inhabitants within its territorial jurisdiction;

3.

Municipality consisting of group of barangays, serves

primarily as a general purpose government for coordination
and delivery of basic, regular and direct services and effective
governance of inhabitants within its territorial jurisdiction;

4.

Barangay basic political unit which serves as primary planning

and implementing unit of government policies, plans,
programs, projects and activities in community, and as a forum
wherein collective views of people may be expressed,
crystalized and considered and where disputes may be
amicably settled;

5.

Autonomous Regions created for decentralization of

administration or decentralization of government; and

6.

Special metropolitan political subdivisions created for sole

purpose of coordination of delivery of basic services.

Creation of Municipal Corporations

1.
2.
2. creation of State
either by special or
general act

2. created by will of
incorporators with
recognizance of State

3. involuntary
consequence legislation

3. voluntary agreement
by and among
members

For province, city or municipality, only by Act of Congress;

For barangays, ordinance passed by respective Sanggunian

Plebiscite Requirement approved by a majority of

the votes cast in a plebiscite called for the purpose in
the political unit/s directly affected (Sec. 10, R.A.
7160)

Based on verifiable indicators of viability and

projected capacity to provide services (Sec. 7, R.A.
7160) [Note: see Annex C]

Beginning of Corporate Existence

III. DE FACTO MUNICIPAL

CORPORATION

Requisites:
1.
2.
3.
4.

valid law authorizing incorporation;

attempt in good faith to organize under it;
colorable compliance with law; and
assumption of corporate powers.

IV. TERRITORIAL AND POLITICAL

SUBDIVISIONS ENJOYING
LOCAL AUTONOMY:
1.

Province cluster of municipalities, or municipalities and

component cities, and serves as dynamic mechanism for

upon election and qualification of its chief executive and

majority of members of its Sanggunian, unless some other
time is fixed therefore by law or ordinance creating it.
Mode of Inquiry to Legal Existence of LGU: Quo warranto
which is reserved to State or other direct proceedings

Abolition of LGU:

When income, population, or land area of LGU has been

reduced to less than minimum standards prescribed for its
creation. The law or ordinance abolishing LGU shall specify the
province, city, municipality or barangay with which LGU sought
to be abolished will be incorporated or merged.

Division and Merger of LGUs

b.

shall comply with same requirements, provided:

1. shall not reduce income, population or land area of LGU

concerned to less than the minimum requirements prescribed;

2. income classification of original LGU shall not fall below its

current income classification prior to division;

3. Plebiscite be held in LGUs affected.

4. Assets and liabilities of creation shall be equitably distributed

if local chief executive vetoes the same, may be

overridden by 2/3 vote of all sanggunian members;
(i)
grounds for veto: ordinance is ultra vires or
prejudicial to public welfare;
(ii)
local chief executive may veto particular item/s
of appropriation ordinance, adoption of local
development plan and public investment plan, or
ordinance directing payment of money or
creating liability; and
(iii)
local chief executive may veto an ordinance only
once;
veto communicated to sanggunian within 15 days for
province and 10 days for city or municipality.

between the LGUs affected and new LGU. When municipal

district of other territorial divisions is converted or fused into a
municipality all property rights vested in original territorial
organization shall become vested in government of
municipality.
V. POWERS OF LGUs

Requisites for validity:

Classification of Powers of Local Government Units

a. must not contravene the Constitution and any statute;

1.
2.
3.
4.

b. must not be unfair or oppressive;

c.

Express, implied and inherent;

Public or governmental, private or proprietary;
Intramural and extramural; and
Mandatory and directory; ministerial and discretionary.

c.
d.
e.
f.

Governmental Powers of LGU:

1.

2.
3.
4.

General Welfare (Sec. 16, R.A. 7160) statutory grant of police

power to LGUs. It is limited to:
a. territoriality;
b. equal protection clause;
c. due process clause; and
d. must not be contrary to law.
Delivery of basic services and facilities (Sec. 17, of R.A. 7160);
Power to generate and apply resources (Sec. 18, of R.A.
7160);
Eminent Domain (Sec. 19, of R.A. 7160);
Additional Limitations for Exercise by LGU:
a.
b.

5.

exercise by local chief executive pursuant to an ordinance;

for public use, purpose or welfare for benefit of poor and
landless;
c. payment of just compensation; and
d. only after valid and definite offer had been made to, and
not accepted by owner.(Municipality of Paraaque v. V.M.
Realty Corp., 292 SCRA 678)
Reclassification of Lands (Sec. 20 of RA 7160)
Limited by following percentage of total agricultural land area:
a.
b.

6.

for HUC and independent component cities: 15%;

st
rd
for component cities and 1 to 3 class municipalities:
10% ; and
th
th
c. for 4 to 6 class municipalities: 5%.
Closure and opening of roads (Sec. 21 of RA 7160)
In case of permanent closure:
a.
b.

7.

adequate provision for public safety must be made; and

may be properly used or conveyed for any purpose for
which other real property may be lawfully used or
conveyed; provided no freedom park be permanently
closed without provisions or transfer to new site.
Local legislative power (Secs. 48-59 of RA 7160)
Approval of ordinances:
a.

local chief executive with his signature on each and every

page;

must not be partial or discriminatory;

must not prohibit, but may regulate trade;
must not be unreasonable; and
must be general in application and consistent with public
policy.

Barangay Chairman has no veto power.

Corporate Powers of LGU:
1.
2.
3.
4.
5.

to have continuous succession in its corporate name;

to sue and be sued;
to have and use a corporate seal;
to acquire and convey real or personal property;
power to enter into contracts;
Requisites of valid municipal contracts:
a.

LGU has express, implied, or inherent power to enter

into a particular contract;
b.
Entered into by proper department, board, committee,
or agent;
c.
Must comply with substantive requirements;
d.
Must comply with formal requirements; and
e.
In case entered into by local chief executive on behalf of
LGU, prior authorization by Sanggunian concerned is
needed
6. to exercise such other powers as granted to corporation,
subject to limitations provided in Local Government Code of
1991 and other laws.
VI. MUNICIPAL LIABILITY:
Rule: Local government units and their officials are not exempt from
liability for death or injury to persons or damage to property (Sec.
24, R.A. 7160)
1.

Statutory provisions on liability:

a.

Art. 2189, Civil Code defective condition of roads,

streets, bridges, public buildings, and other public works;

b.

Art. 2180(6 par.), Civil Code acts through a special

agent;

d.

Art. 34, Civil Code failure or refusal of a member of the

police force to render aid and protection in case of danger
to life and property

th

2.

3.
4.

for Tort depends if engaged in:

a.

governmental functions not liable;

b.

proprietary functions liable

d. SK chairman, elected by voters of Katipunan ng Kabataan

2.

for Violation of Law

for Contracts if contract is:
a. intra vires liable;
b.

ultra vires not liable

Doctrine of Implied Municipal Liability a municipality
may become obligated upon an implied contract to pay
the reasonable value of the benefits accepted or
appropriated by it as to which it has the general power to
contract (Province of Cebu v. IAC, 147 SCRA 447); the
doctrine applies to all cases where money or other
property of a party is received under such circumstances
that the general law, independent of an express contract,
implies an obligation to do justice with respect to the
same (Nachura, Reviewer in Political Law, p. 431)

Elected by District
a. regular members of Sanggunian
b. ex-officio members of Sanggunian
(i.) panlalawigan

president of leagues of sanggunian members of

component cities and municipalities; and

president of liga ng mga barangay and

pederasyon ng mga sanggunian kabataan
(ii.) panlunsod

president of liga ng mga barangay and the

pederasyon ng mga SB
(iii.) bayan

3.

president of liga ng mga barangay and the

pederasyon ng mga sanggunian kabataan

Sectoral representatives women, worker, urban poor, and

other sectors allowed by law.

VII. QUALIFICATION OF ELECTIVE

nd

Date of Election: Every 3 years on 2 Monday of May, unless

otherwise provided by law.

LOCAL OFFICIALS:
1.
2.
3.
4.
5.

citizen of the Philippines;

registered voter of barangay, municipality, city, province, or
district where he intends to be elected;
resident therein for at least 1 year preceding election;
able to read and write Filipino or local language or dialect; and
age:
a. 23 years of age Governor, Vice Governor, Board
Member, Mayor, Vice Mayor or Member of City Council
for HUCs.
b. 21 years of age Mayor or Vice Mayor of ICCs,
component cities or municipalities;
c. 18 years of age members of ICC or component city or
municipal council or punong barangay or member of
barangay council;
d. at least 15 but not 21 years of age candidate for
sanggunian kabataan.
(Sec. 39, RA 7160)

Term of Office: 3 years starting from noon of June 30 next

following the election or such date as may be provided by law,
except that of elective barangay officials, for maximum of 3
consecutive terms in same position.
Consecutive: After three consecutive terms, an elective
local official cannot seek immediate reelection for a fourth
term. The prohibited election refers to the next regular
election for the same office following the end of the third
consecutive term. Any other subsequent election, like a
recall election is no longer covered by the prohibition
(Socrates vs. Comelec, G.R. No. 154512, November 12,
2002).

IX. GROUNDS FOR DISCIPLINARY

ACTIONS:

Disqualification of Elective Local Official:

1.

2.
3.
4.
5.
6.
7.

sentenced by final judgment for offense involving moral

turpitude or punishable by 1 year or more of imprisonment
within 2 after service of sentence;
those removed from office due to administrative cases;
those convicted by final judgment for violating oath of
allegiance to the Republic;
those with dual citizenship;
fugitives from justice in criminal or non-political cases here or
abroad;
permanent resident in foreign country; and
insane or feeble-minded.(Sec.40, RA.7160)

VIII. MANNER OF ELECTION

1.

Elected at large
a. Governor; Vice Governor;
b. City or municipal mayor; City or municipal vice-mayor;
c. Punong barangay,

1.
2.
3.
4.
5.
6.
7.
8.

disloyalty to the Republic;

culpable violation of the Constitution;
dishonesty, oppression, misconduct in office, gross negligence
or dereliction of duty;
commission of offense involving moral turpitude or offense
punishable by at least prision mayor;
abuse of authority;
unauthorized absence for 15 consecutive working days except
sanggunian members;
application for, acquisition of , foreign citizenship or residence
or status of an immigrant of another country; and
such other grounds as may be provided in EC and other laws

Under Sec. 60 of RA 7160 an elective local official may

be removed from office on the grounds enumerated
above by order of the proper court only (Salalima vs
Guingona, 257 SCRA 55)

compensation laws, and powers of abstract determination such as

definition-valuation, classification and fact finding
Powers of Administrative Agencies
3. DISPENSING powers
1.
2.
3.

Quasi-legislative power / Power of subordinate legislation

Quasi-judicial power/Power of adjudication
Determinative powers (Note: Senator Neptali Gonzales
calls them incidental powers)

Exemplified by the authority to exempt from or relax a general

prohibition, or authority to relieve from an affirmative duty. Its
difference from licensing power is that dispensing power sanctions a
deviation from a standard.

Definition of Quasi-legislative power

4. SUMMARY powers
It is the authority delegated by the law-making body to the
administrative body to adopt rules and regulations intended to carry
out the provisions of a law and implement legislative policy.

Those that apply compulsion or force against person or property to

effectuate a legal purpose without a judicial warrant to authorize
such action. Usually without notice and hearing.

Distinctions between Quasi-legislative power and legislative power

1.

2.

LEGISLATIVE power involves the discretion to determine

what the law shall be. QUASI-legislative power only
involves the discretion to determine how the law shall be
enforced.
LEGISLATIVE power CANNOT be delegated. QUASIlegislative power CAN be delegated.

Tests of Delegation (applies to the power to promulgate

administrative regulations )
1.

COMPLETENESS test. This means that the law must be

complete in all its terms and conditions when it leaves the
legislature so that when it reaches the delegate, it will
have nothing to do but to enforce it.
SUFFICIENT STANDARD test. The law must offer a
sufficient standard to specify the limits of the delegates
authority, announce the legislative policy and specify the
conditions under which it is to be implemented.

Ex. Abatement of nuisance, summary destraint, levy of property of

delinquent tax payers
5. EQUITABLE powers
Those that pertain to the power to determine the law upon a
particular state of facts. It refers to the right to, and must, consider
and make proper application of the rules of equity.
Ex. Power to appoint a receiver, power to issue injunctions

Kinds of Administrative Regulations

1. ENABLING powers

DISTINCTIONS
LEGISLATIVE
INTERPRETATIVE
1. Capacity that
Legislative
Judicial
administrative agency
is acting in
2. What
It supplements the It says what the statute
administrative agency statute by filling in means
is doing
the details
3. Force and effect
Legislative
Merely
regulations have
persuasive/Received by
the force and effecr the courts with much
of law immediately respect but not accorded
upon going into
with finality
effect. Such is
accorded by the
courts or by
express provision
of statute.

Those that PERMIT the doing of an act which the law undertakes to
regulate and would be unlawful without government approval.

Requisites of a Valid Administrative Regulation

2.

Definition of Quasi-Judicial Power

It is the power of administrative authorities to make determinations
of facts in the performance of their official duties and to apply the
law as they construe it to the facts so found. The exercise of this
power is only incidental to the main function of administrative
authorities, which is the enforcement of the law.
Determinative Powers

Ex. Issuance of licenses to engage in a particular business.

2.DIRECTING powers
Those that involve the corrective powers of public utility
commissions, powers of assessment under the revenue laws,
reparations under public utility laws, and awards under workmens

1.
2.
3.
4.

Its promulgation must be authorized by the legislature.

It must be within the scope of the authority given by the
legislature.
It must be promulgated in accordance with the prescribed
procedure.
It must be reasonable

Need for Previous Notice and Hearing

1.
2.

3.

General Rule: Administrative rules of GENERAL application

do NOT require previous notice and hearing.
Exception: When the legislature itself requires it and
mandates that the regulation shall be based on certain
facts as determined at an appropriate investigation.
If the regulation is in effect a settlement of a controversy
between specific parties, it is considered an administrative
adjudication, requiring notice and hearing.
Prescribing of Rates

It can be either:
1. LEGISLATIVE
If the rules/rates are meant to apply to all enterprises of a given kind
throughout the country.
No prior notice and hearing is required.

Administrative Due Process : Requirements

1.
2.
3.
4.

Right to Notice, be it actual or constructive

Reasonable opportunity to appear and defend his rights
and to introduce witnesses
Impartial tribunal with competent jurisdiction
Finding or decision supported by substantial evidence

Exceptions to the Notice and Hearing Requirement

1.
2.
3.
4.
5.
6.
7.
8.
9.

Urgency of immediate action

Tentativeness of the administrative action
Right was previously offered but not claimed
Summary abatement of a nuisance per se
Preventive suspension of a public servant facing
administrative charges
Padlocking of filthy restaurants/theaters showing obscene
movies
Cancellation of a passport of a person sought for criminal
prosecution
Summary distraint and levy of properties of a delinquent
taxpayer
Replacement of a temporary or acting appointee

2. QUASI-JUDICIAL
Questions Reviewable on Judicial Review:
If the rules and rates imposed apply exclusively to a particular party,
based upon a finding of fact. Prior notice and hearing is required.
Requirement of Publication
Administrative Regulations that MUST be published:
1.
2.

Administrative regulations of GENERAL application.

Administrative regulations which are PENAL in nature.

Administrative regulations that do NOT NEED to be PUBLISHED:

1.
2.

1.

Interpretative regulations
Internal rules and regulations governing the personnel of
the administrative agency.
Letters of instruction issued by administrative superiors
concerning guidelines to be followed by their
subordinates. (Tanada v. Tuvera)

1. Questions of FACT
The general rule is that courts will not disturb the findings of
administrative agencies acting within the parameters of their own
competence so long as such findings are supported by substantial
evidence. By reason of their special knowledge, expertise, and
experience, the courts ordinarily accord respect if not finality to
factual findings of administrative tribunals.
2. Question of LAW
Administrative decision may be appealed to the courts
independently of legislative permission.
It may be appealed even against legislative prohibition because the
judiciary cannot be deprived of its inherent power to review all
decisions on questions of law.
Doctrine of Finality

Special Requisites of a Valid Administrative Regulation with a

PENAL sanction
1.
2.
3.

The law itself must make violation of the administrative

regulation punishable.
The law itself must impose and specify the penalty for the
violation of the regulation.
The regulation must be published.

Requisites for Proper Exercise of Quasi-Judicial Power

1.
2.

Jurisdiction
Due process

Courts are reluctant to interfere with action of an administrative

agency prior to its completion or finality, the reason being that
absent a final order or decision, power has not been fully and finally
exercised, and there can usually be no irreparable harm.
EXCEPTIONS: Interlocutory order affecting the merits of a
controversy; Preserve status quo pending further action by the
administrative agency; Essential to the protection of the rights
asserted from the injury threatened; Officer assumes to act in
violation of the Constitution and other laws; Order not reviewable in
any other way; Order made in excess of power

Doctrine of Primary Jurisdiction

1.

2.

This doctrine states that courts cannot or will not

determine a controversy which requires the expertise,
specialized skills and knowledge of the proper
administrative bodies because technical matters of
intricate questions of fact are involved.
Relief must first be obtained in an administrative
proceeding before a remedy will be supplied by the court
even though the matter is within the proper jurisdiction of
a court.
Doctrine of Prior Resort

When a claim originally cognizable in the courts involves issues

which, under a regulatory scheme are within the special
competence of an administrative agency, judicial proceedings will be
suspended pending the referral of these issues to the administrative
body for its view.
Note: The doctrines of primary jurisdiction and prior resort have
been considered to be interchangeable.
Doctrine of Exhaustion of Administrative Remedies
1.

Under this doctrine, an administrative decision must first

be appealed to the administrative superiors up to the
highest level before it may be elevated to a court of justice
for review.

1.

Reasons :
1. to enable the administrative superiors to corr
ect the errors committed by their subordinat
es.
2. courts should refrain from disturbing the findi
ngs of administrative.
bodies in deference to the doctrine of separa
tion of powers.
3. courts should not be saddled with the review
of administrative cases
4. judicial review of administrative cases is usually
effected through special civil actions which are
available only if their is no
other plain, speedy and adequate remedy.

3. Exceptions
a. when the question raised is purely legal, involves constitutional
questions
b. when the administrative body is in estopped
c. when act complained of is patently illegal
d. when there is urgent need for judicial intervention
e. when claim involved is small
f. when irreparable damage is involved

g. when there is no other plain, speedy , adequate remedy

h. when strong public interest is involved
I. when the subject of controversy is private land
1.
2.
3.
4.
5.
6.
7.

in quo warranto proceedings

When the administrative remedy is permissive, concurrent
utter disregard of due process
long-continued and unreasonable delay
amount involved is relatively small
when no administrative review is provided
respondent is a department secretary (DOCTRINE OF
QUALIFIED POLITICAL AGENCY ALTER EGO DOCTRINE)

Substantial evidence defined to mean not necessarily

preponderant proof as required in ordinary civil cases but such kind
of relevant evidence which a reasonable mind might accept as
adequate to support a conclusion.

US vs. Ang Tang Ho

43 Phil. 1 Political Law Delegation of Power Administrative
Bodies
In July 1919, the Philippine Legislature (during special session)
passed and approved Act No. 2868 entitled An Act Penalizing the
Monopoly and Hoarding of Rice, Palay and Corn. The said act, under
extraordinary circumstances, authorizes the Governor General (GG)
to issue the necessary Rules and Regulations in regulating the
distribution of such products. Pursuant to this Act, in August 1919,
the GG issued Executive Order No. 53 which was published on
August 20, 1919. The said EO fixed the price at which rice should be
sold. On the other hand, Ang Tang Ho, a rice dealer, sold a ganta of
rice to Pedro Trinidad at the price of eighty centavos. The said
amount was way higher than that prescribed by the EO. The sale
th
was done on the 6 of August 1919. On August 8, 1919, he was
charged for violation of the said EO. He was found guilty as charged
and was sentenced to 5 months imprisonment plus a P500.00 fine.
He appealed the sentence countering that there is an undue
delegation of power to the Governor General.
ISSUE: Whether or not there is undue delegation to the Governor
General.
HELD: First of, Ang Tang Hos conviction must be reversed because
he committed the act prior to the publication of the EO. Hence, he
cannot be ex post facto charged of the crime. Further, one cannot
be convicted of a violation of a law or of an order issued pursuant to
the law when both the law and the order fail to set up an
ascertainable standard of guilt.
Anent the issue of undue delegation, the said Act wholly fails to
provide definitely and clearly what the standard policy should
contain, so that it could be put in use as a uniform policy required to
take the place of all others without the determination of the
insurance commissioner in respect to matters involving the exercise
of a legislative discretion that could not be delegated, and without
which the act could not possibly be put in use. The law must be
complete in all its terms and provisions when it leaves the legislative
branch of the government and nothing must be left to the judgment
of the electors or other appointee or delegate of the legislature, so
that, in form and substance, it is a law in all its details in presenti,
but which may be left to take effect in future, if necessary, upon the
ascertainment of any prescribed fact or event.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 17122

February 27, 1922

THE UNITED STATES, plaintiff-appellee,

vs.
ANG TANG HO, defendant-appellant.
Williams & Ferrier for appellant.
Acting Attorney-General Tuason for appellee.

JOHNS, J.:
At its special session of 1919, the Philippine Legislature passed Act
No. 2868, entitled "An Act penalizing the monopoly and holding of,
and speculation in, palay, rice, and corn under extraordinary
circumstances, regulating the distribution and sale thereof, and
authorizing the Governor-General, with the consent of the Council
of State, to issue the necessary rules and regulations therefor, and
making an appropriation for this purpose," the material provisions of
which are as follows:
Section 1. The Governor-General is hereby authorized, whenever,
for any cause, conditions arise resulting in an extraordinary rise in
the price of palay, rice or corn, to issue and promulgate, with the
consent of the Council of State, temporary rules and emergency
measures for carrying out the purpose of this Act, to wit:
(a) To prevent the monopoly and hoarding of, and speculation in,
palay, rice or corn.
(b) To establish and maintain a government control of the
distribution or sale of the commodities referred to or have such
distribution or sale made by the Government itself.
(c) To fix, from time to time the quantities of palay rice, or corn that
a company or individual may acquire, and the maximum sale price
that the industrial or merchant may demand.
(d) . . .
SEC. 2. It shall be unlawful to destroy, limit, prevent or in any other
manner obstruct the production or milling of palay, rice or corn for
the purpose of raising the prices thereof; to corner or hoard said
products as defined in section three of this Act; . . .
Section 3 defines what shall constitute a monopoly or hoarding of
palay, rice or corn within the meaning of this Act, but does not
specify the price of rice or define any basic for fixing the price.
SEC. 4. The violations of any of the provisions of this Act or of the
regulations, orders and decrees promulgated in accordance
therewith shall be punished by a fine of not more than five
thousands pesos, or by imprisonment for not more than two years,
or both, in the discretion of the court: Provided, That in the case of
companies or corporations the manager or administrator shall be
criminally liable.
SEC. 7. At any time that the Governor-General, with the consent of
the Council of State, shall consider that the public interest requires
the application of the provisions of this Act, he shall so declare by
proclamation, and any provisions of other laws inconsistent
herewith shall from then on be temporarily suspended.
Upon the cessation of the reasons for which such proclamation was
issued, the Governor-General, with the consent of the Council of
State, shall declare the application of this Act to have likewise
terminated, and all laws temporarily suspended by virtue of the
same shall again take effect, but such termination shall not prevent
the prosecution of any proceedings or cause begun prior to such
termination, nor the filing of any proceedings for an offense

committed during the period covered by the Governor-General's

proclamation.
August 1, 1919, the Governor-General issued a proclamation fixing
the price at which rice should be sold.
August 8, 1919, a complaint was filed against the defendant, Ang
Tang Ho, charging him with the sale of rice at an excessive price as
follows:
The undersigned accuses Ang Tang Ho of a violation of Executive
Order No. 53 of the Governor-General of the Philippines, dated the
1st of August, 1919, in relation with the provisions of sections 1, 2
and 4 of Act No. 2868, committed as follows:
That on or about the 6th day of August, 1919, in the city of Manila,
Philippine Islands, the said Ang Tang Ho, voluntarily, illegally and
criminally sold to Pedro Trinidad, one ganta of rice at the price of
eighty centavos (P.80), which is a price greater than that fixed by
Executive Order No. 53 of the Governor-General of the Philippines,
dated the 1st of August, 1919, under the authority of section 1 of
Act No. 2868. Contrary to law.
Upon this charge, he was tried, found guilty and sentenced to five
months' imprisonment and to pay a fine of P500, from which he
appealed to this court, claiming that the lower court erred in finding
Executive Order No. 53 of 1919, to be of any force and effect, in
finding the accused guilty of the offense charged, and in imposing
the sentence.
The official records show that the Act was to take effect on its
approval; that it was approved July 30, 1919; that the GovernorGeneral issued his proclamation on the 1st of August, 1919; and that
the law was first published on the 13th of August, 1919; and that the
proclamation itself was first published on the 20th of August, 1919.
The question here involves an analysis and construction of Act No.
2868, in so far as it authorizes the Governor-General to fix the price
at which rice should be sold. It will be noted that section 1
authorizes the Governor-General, with the consent of the Council of
State, for any cause resulting in an extraordinary rise in the price of
palay, rice or corn, to issue and promulgate temporary rules and
emergency measures for carrying out the purposes of the Act. By its
very terms, the promulgation of temporary rules and emergency
measures is left to the discretion of the Governor-General. The
Legislature does not undertake to specify or define under what
conditions or for what reasons the Governor-General shall issue the
proclamation, but says that it may be issued "for any cause," and
leaves the question as to what is "any cause" to the discretion of the
Governor-General. The Act also says: "For any cause, conditions
arise resulting in an extraordinary rise in the price of palay, rice or
corn." The Legislature does not specify or define what is "an
extraordinary rise." That is also left to the discretion of the
Governor-General. The Act also says that the Governor-General,
"with the consent of the Council of State," is authorized to issue and
promulgate "temporary rules and emergency measures for carrying
out the purposes of this Act." It does not specify or define what is a
temporary rule or an emergency measure, or how long such
temporary rules or emergency measures shall remain in force and
effect, or when they shall take effect. That is to say, the Legislature
itself has not in any manner specified or defined any basis for the

order, but has left it to the sole judgement and discretion of the
Governor-General to say what is or what is not "a cause," and what
is or what is not "an extraordinary rise in the price of rice," and as to
what is a temporary rule or an emergency measure for the carrying
out the purposes of the Act. Under this state of facts, if the law is
valid and the Governor-General issues a proclamation fixing the
minimum price at which rice should be sold, any dealer who, with or
without notice, sells rice at a higher price, is a criminal. There may
not have been any cause, and the price may not have been
extraordinary, and there may not have been an emergency, but, if
the Governor-General found the existence of such facts and issued a
proclamation, and rice is sold at any higher price, the seller commits
a crime.
By the organic law of the Philippine Islands and the Constitution of
the United States all powers are vested in the Legislative, Executive
and Judiciary. It is the duty of the Legislature to make the law; of the
Executive to execute the law; 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. Assuming, without
deciding, that the Legislature itself has the power to fix the price at
which rice is to be sold, can it delegate that power to another, and, if
so, was that power legally delegated by Act No. 2868? In other
words, does the Act delegate legislative power to the GovernorGeneral? By the Organic Law, all Legislative power is vested in the
Legislature, and the power conferred upon the Legislature to make
laws cannot be delegated to the Governor-General, or any one else.
The Legislature cannot delegate the 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 the law into effect, then the Legislature
itself 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 crime, and
is not a law, and some legislative act remains to be done to make it a
law or a crime, the doing of which is vested in the Governor-General,
then the Act is a delegation of legislative power, is unconstitutional
and void.
The Supreme Court of the United States in what is known as the
Granger Cases (94 U.S., 183-187; 24 L. ed., 94), first laid down the
rule:
Railroad companies are engaged in a public employment affecting
the public interest and, under the decision in Munn vs. Ill., ante, 77,
are subject to legislative control as to their rates of fare and freight
unless protected by their charters.
The Illinois statute of Mar. 23, 1874, to establish reasonable
maximum rates of charges for the transportation of freights and
passengers on the different railroads of the State is not void as being
repugnant to the Constitution of the United States or to that of the
State.
It was there for the first time held in substance that a railroad was a
public utility, and that, being a public utility, the State had power to
establish reasonable maximum freight and passenger rates. This was
followed by the State of Minnesota in enacting a similar law,
providing for, and empowering, a railroad commission to hear and

determine what was a just and reasonable rate. The constitutionality

of this law was attacked and upheld by the Supreme Court of
Minnesota in a learned and exhaustive opinion by Justice Mitchell, in
the case of State vs. Chicago, Milwaukee & St. Paul ry. Co. (38 Minn.,
281), in which the court held:
Regulations of railway tariffs Conclusiveness of commission's
tariffs. Under Laws 1887, c. 10, sec. 8, the determination of the
railroad and warehouse commission as to what are equal and
reasonable fares and rates for the transportation of persons and
property by a railway company is conclusive, and, in proceedings by
mandamus to compel compliance with the tariff of rates
recommended and published by them, no issue can be raised or
inquiry had on that question.
Same constitution Delegation of power to commission. The
authority thus given to the commission to determine, in the exercise
of their discretion and judgement, what are equal and reasonable
rates, is not a delegation of legislative power.
It will be noted that the law creating the railroad commission
expressly provides
That all charges by any common carrier for the transportation of
passengers and property shall be equal and reasonable.
With that as a basis for the law, power is then given to the railroad
commission to investigate all the facts, to hear and determine what
is a just and reasonable rate. Even then that law does not make the
violation of the order of the commission a crime. The only remedy is
a civil proceeding. It was there held
That the legislative itself has the power to regulate railroad charges
is now too well settled to require either argument or citation of
authority.
The difference between the power to say what the law shall be, and
the power to adopt rules and regulations, or to investigate and
determine the facts, in order to carry into effect a law already
passed, is apparent. 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 the conferring an authority or discretion to
be exercised under and in pursuance of the law.
The legislature enacts that all freights rates and passenger fares
should be just and reasonable. It had the undoubted power to fix
these rates at whatever it deemed equal and reasonable.
They have not delegated to the commission any authority or
discretion as to what the law shall be, which would not be
allowable, but have merely conferred upon it an authority and
discretion, to be exercised in the execution of the law, and under
and in pursuance of it, which is entirely permissible. The legislature
itself has passed upon the expediency of the law, and what is shall
be. The commission is intrusted with no authority or discretion upon
these questions. It can neither make nor unmake a single provision
of law. It is merely charged with the administration of the law, and
with no other power.

The delegation of legislative power was before the Supreme Court of

Wisconsin in Dowling vs. Lancoshire Ins. Co. (92 Wis., 63). The
opinion says:
"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 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."
The act, in our judgment, wholly fails to provide definitely and
clearly what the standard policy should contain, so that it could be
put in use as a uniform policy required to take the place of all others,
without the determination of the insurance commissioner in respect
to maters involving the exercise of a legislative discretion that could
not be delegated, and without which the act could not possibly be
put in use as an act in confirmity to which all fire insurance policies
were required to be issued.
The result of all the cases on this subject is that a law must be
complete, in all its terms and provisions, when it leaves the
legislative branch of the government, and nothing must be left to
the judgement of the electors or other appointee or delegate of the
legislature, so that, in form and substance, it is a law in all its details
in presenti, but which may be left to take effect in futuro, if
necessary, upon the ascertainment of any prescribed fact or event.
The delegation of legislative power was before the Supreme Court in
United States vs. Grimaud (220 U.S., 506; 55 L. ed., 563), where it
was held that the rules and regulations of the Secretary of
Agriculture as to a trespass on government land in a forest reserve
were valid constitutional. The Act there provided that the Secretary
of Agriculture ". . . may make such rules and regulations and
establish such service as will insure the object of such reservations;
namely, to regulate their occupancy and use, and to preserve the
forests thereon from destruction; and any violation of the provisions
of this act or such rules and regulations shall be punished, . . ."
The brief of the United States Solicitor-General says:
In refusing permits to use a forest reservation for stock grazing,
except upon stated terms or in stated ways, the Secretary of
Agriculture merely assert and enforces the proprietary right of the
United States over land which it owns. The regulation of the
Secretary, therefore, is not an exercise of legislative, or even of
administrative, power; but is an ordinary and legitimate refusal of
the landowner's authorized agent to allow person having no right in
the land to use it as they will. The right of proprietary control is
altogether different from governmental authority.
The opinion says:
From the beginning of the government, various acts have been
passed conferring upon executive officers power to make rules and
regulations, not for the government of their departments, but for
administering the laws which did govern. None of these statutes
could confer legislative power. But when Congress had legislated
power. But when Congress had legislated and indicated its will, it
could give to those who were to act under such general provisions
"power to fill up the details" by the establishment of administrative
rules and regulations, the violation of which could be punished by

fine or imprisonment fixed by Congress, or by penalties fixed by

Congress, or measured by the injury done.
That "Congress cannot delegate legislative power is a principle
universally recognized as vital to the integrity and maintenance of
the system of government ordained by the Constitution."
If, after the passage of the act and the promulgation of the rule, the
defendants drove and grazed their sheep upon the reserve, in
violation of the regulations, they were making an unlawful use of the
government's property. In doing so they thereby made themselves
liable to the penalty imposed by Congress.
The subjects as to which the Secretary can regulate are defined. The
lands are set apart as a forest reserve. He is required to make
provisions to protect them from depredations and from harmful
uses. He is authorized 'to regulate the occupancy and use and to
preserve the forests from destruction.' A violation of reasonable
rules regulating the use and occupancy of the property is made a
crime, not by the Secretary, but by Congress."
The above are leading cases in the United States on the question of
delegating legislative power. It will be noted that in the "Granger
Cases," it was held that a railroad company was a public corporation,
and that a railroad was a public utility, and that, for such reasons,
the legislature had the power to fix and determine just and
reasonable rates for freight and passengers.
The Minnesota case held that, so long as the rates were just and
reasonable, the legislature could delegate the power to ascertain
the facts and determine from the facts what were just and
reasonable rates,. and that in vesting the commission with such
power was not a delegation of legislative power.
The Wisconsin case was a civil action founded upon a "Wisconsin
standard policy of fire insurance," and the court held that "the act, . .
. wholly fails to provide definitely and clearly what the standard
policy should contain, so that it could be put in use as a uniform
policy required to take the place of all others, without the
determination of the insurance commissioner in respect to matters
involving the exercise of a legislative discretion that could not be
delegated."
The case of the United States Supreme Court, supra dealt with rules
and regulations which were promulgated by the Secretary of
Agriculture for Government land in the forest reserve.
These decisions hold that the legislative only can enact a law, and
that it cannot delegate it legislative authority.

Where an act is clothed with all the forms of law, and is complete in
and of itself, it may be provided that it shall become operative only
upon some certain act or event, or, in like manner, that its operation
shall be suspended.
The legislature cannot delegate its power to make a law, but it can
make a law to delegate a power to determine some fact or state of
things upon which the law makes, or intends to make, its own action
to depend.
The Village of Little Chute enacted an ordinance which provides:
All saloons in said village shall be closed at 11 o'clock P.M. each day
and remain closed until 5 o'clock on the following morning, unless
by special permission of the president.
1

Construing it in 136 Wis., 526; 128 A. S. R., 1100, the Supreme Court
of that State says:
We regard the ordinance as void for two reasons; First, because it
attempts to confer arbitrary power upon an executive officer, and
allows him, in executing the ordinance, to make unjust and
groundless discriminations among persons similarly situated;
second, because the power to regulate saloons is a law-making
power vested in the village board, which cannot be delegated. A
legislative body cannot delegate to a mere administrative officer
power to make a law, but it can make a law with provisions that it
shall go into effect or be suspended in its operations upon the
ascertainment of a fact or state of facts by an administrative officer
or board. In the present case the ordinance by its terms gives power
to the president to decide arbitrary, and in the exercise of his own
discretion, when a saloon shall close. This is an attempt to vest
legislative discretion in him, and cannot be sustained.
The legal principle involved there is squarely in point here.
It must be conceded that, after the passage of act No. 2868, and
before any rules and regulations were promulgated by the
Governor-General, a dealer in rice could sell it at any price, even at a
peso per "ganta," and that he would not commit a crime, because
there would be no law fixing the price of rice, and the sale of it at
any price would not be a crime. That is to say, in the absence of a
proclamation, it was not a crime to sell rice at any price. Hence, it
must follow that, if the defendant committed a crime, it was
because the Governor-General issued the proclamation. There was
no act of the Legislature making it a crime to sell rice at any price,
and without the proclamation, the sale of it at any price was to a
crime.
2

The Executive order provides:

The line of cleavage between what is and what is not a delegation of
legislative power is pointed out and clearly defined. As the Supreme
Court of Wisconsin says:
That no part of the legislative power can be delegated by the
legislature to any other department of the government, executive or
judicial, is a fundamental principle in constitutional law, essential to
the integrity and maintenance of the system of government
established by the constitution.

(5) The maximum selling price of palay, rice or corn is hereby fixed,
for the time being as follows:
In Manila
Palay at P6.75 per sack of 57 kilos, or 29 centavos per ganta.
Rice at P15 per sack of 57 kilos, or 63 centavos per ganta.

Corn at P8 per sack of 57 kilos, or 34 centavos per ganta.

In the provinces producing palay, rice and corn, the maximum price
shall be the Manila price less the cost of transportation from the
source of supply and necessary handling expenses to the place of
sale, to be determined by the provincial treasurers or their deputies.
In provinces, obtaining their supplies from Manila or other
producing provinces, the maximum price shall be the authorized
price at the place of supply or the Manila price as the case may be,
plus the transportation cost, from the place of supply and the
necessary handling expenses, to the place of sale, to be determined
by the provincial treasurers or their deputies.
(6) Provincial treasurers and their deputies are hereby directed to
communicate with, and execute all instructions emanating from the
Director of Commerce and Industry, for the most effective and
proper enforcement of the above regulations in their respective
localities.
The law says that the Governor-General may fix "the maximum sale
price that the industrial or merchant may demand." The law is a
general law and not a local or special law.
The proclamation undertakes to fix one price for rice in Manila and
other and different prices in other and different provinces in the
Philippine Islands, and delegates the power to determine the other
and different prices to provincial treasurers and their deputies.
Here, then, you would have a delegation of legislative power to the
Governor-General, and a delegation by him of that power to
provincial treasurers and their deputies, who "are hereby directed to
communicate with, and execute all instructions emanating from the
Director of Commerce and Industry, for the most effective and
proper enforcement of the above regulations in their respective
localities." The issuance of the proclamation by the GovernorGeneral was the exercise of the delegation of a delegated power,
and was even a sub delegation of that power.
Assuming that it is valid, Act No. 2868 is a general law and does not
authorize the Governor-General to fix one price of rice in Manila and
another price in Iloilo. It only purports to authorize him to fix the
price of rice in the Philippine Islands under a law, which is General
and uniform, and not local or special. Under the terms of the law,
the price of rice fixed in the proclamation must be the same all over
the Islands. There cannot be one price at Manila and another at
Iloilo. Again, it is a mater of common knowledge, and of which this
court will take judicial notice, that there are many kinds of rice with
different and corresponding market values, and that there is a wide
range in the price, which varies with the grade and quality. Act No.
2868 makes no distinction in price for the grade or quality of the
rice, and the proclamation, upon which the defendant was tried and
convicted, fixes the selling price of rice in Manila "at P15 per sack of
57 kilos, or 63 centavos per ganta," and is uniform as to all grades
of rice, and says nothing about grade or quality. Again, it will be
noted that the law is confined to palay, rice and corn. They are
products of the Philippine Islands. Hemp, tobacco, coconut,
chickens, eggs, and many other things are also products. Any law
which single out palay, rice or corn from the numerous other
products of the Islands is not general or uniform, but is a local or
special law. If such a law is valid, then by the same principle, the
Governor-General could be authorized by proclamation to fix the
price of meat, eggs, chickens, coconut, hemp, and tobacco, or any

other product of the Islands. In the very nature of things, all of that
class of laws should be general and uniform. Otherwise, there would
be an unjust discrimination of property rights, which, under the law,
must be equal and inform. Act No. 2868 is nothing more than a
floating law, which, in the discretion and by a proclamation of the
Governor-General, makes it a floating crime to sell rice at a price in
excess of the proclamation, without regard to grade or quality.
When Act No. 2868 is analyzed, it is the violation of the
proclamation of the Governor-General which constitutes the crime.
Without that proclamation, it was no crime to sell rice at any price.
In other words, the Legislature left it to the sole discretion of the
Governor-General to say what was and what was not "any cause" for
enforcing the act, and what was and what was not "an extraordinary
rise in the price of palay, rice or corn," and under certain undefined
conditions to fix the price at which rice should be sold, without
regard to grade or quality, also to say whether a proclamation
should be issued, if so, when, and whether or not the law should be
enforced, how long it should be enforced, and when the law should
be suspended. The Legislature did not specify or define what was
"any cause," or what was "an extraordinary rise in the price of rice,
palay or corn," Neither did it specify or define the conditions upon
which the proclamation should be issued. In the absence of the
proclamation no crime was committed. The alleged sale was made a
crime, if at all, because the Governor-General issued the
proclamation. The act or proclamation does not say anything about
the different grades or qualities of rice, and the defendant is
charged with the sale "of one ganta of rice at the price of eighty
centavos (P0.80) which is a price greater than that fixed by Executive
order No. 53."
We are clearly of the opinion and hold that Act No. 2868, in so far as
it undertakes to authorized the Governor-General in his discretion to
issue a proclamation, fixing the price of rice, and to make the sale of
rice in violation of the price of rice, and to make the sale of rice in
violation of the proclamation a crime, is unconstitutional and void.
It may be urged that there was an extraordinary rise in the price of
rice and profiteering, which worked a severe hardship on the poorer
classes, and that an emergency existed, but the question here
presented is the constitutionality of a particular portion of a statute,
and none of such matters is an argument for, or against, its
constitutionality.
The Constitution is something solid, permanent an substantial. Its
stability protects the life, liberty and property rights of the rich and
the poor alike, and that protection ought not to change with the
wind or any emergency condition. The fundamental question
involved in this case is the right of the people of the Philippine
Islands to be and live under a republican form of government. We
make the broad statement that no state or nation, living under
republican form of government, under the terms and conditions
specified in Act No. 2868, has ever enacted a law delegating the
power to any one, to fix the price at which rice should be sold. That
power can never be delegated under a republican form of
government.
In the fixing of the price at which the defendant should sell his rice,
the law was not dealing with government property. It was dealing
with private property and private rights, which are sacred under the
Constitution. If this law should be sustained, upon the same
principle and for the same reason, the Legislature could authorize

the Governor-General to fix the price of every product or commodity

in the Philippine Islands, and empower him to make it a crime to sell
any product at any other or different price.
It may be said that this was a war measure, and that for such reason
the provision of the Constitution should be suspended. But the
Stubborn fact remains that at all times the judicial power was in full
force and effect, and that while that power was in force and effect,
such a provision of the Constitution could not be, and was not,
suspended even in times of war. It may be claimed that during the
war, the United States Government undertook to, and did, fix the
price at which wheat and flour should be bought and sold, and that
is true. There, the United States had declared war, and at the time
was at war with other nations, and it was a war measure, but it is
also true that in doing so, and as a part of the same act, the United
States commandeered all the wheat and flour, and took possession
of it, either actual or constructive, and the government itself
became the owner of the wheat and flour, and fixed the price to be
paid for it. That is not this case. Here the rice sold was the personal
and private property of the defendant, who sold it to one of his
customers. The government had not bought and did not claim to
own the rice, or have any interest in it, and at the time of the alleged
sale, it was the personal, private property of the defendant. It may
be that the law was passed in the interest of the public, but the
members of this court have taken on solemn oath to uphold and
defend the Constitution, and it ought not to be construed to meet
the changing winds or emergency conditions. Again, we say that no
state or nation under a republican form of government ever enacted
a law authorizing any executive, under the conditions states, to fix
the price at which a price person would sell his own rice, and make
the broad statement that no decision of any court, on principle or by
analogy, will ever be found which sustains the constitutionality of
the particular portion of Act No. 2868 here in question. By the terms
of the Organic Act, subject only to constitutional limitations, the
power to legislate and enact laws is vested exclusively in the
Legislative, which is elected by a direct vote of the people of the
Philippine Islands. As to the question here involved, the authority of
the Governor-General to fix the maximum price at which palay, rice
and corn may be sold in the manner power in violation of the
organic law.
This opinion is confined to the particular question here involved,
which is the right of the Governor-General, upon the terms and
conditions stated in the Act, to fix the price of rice and make it a
crime to sell it at a higher price, and which holds that portions of the
Act unconstitutional. It does not decide or undertake to construe the
constitutionality of any of the remaining portions of the Act.
The judgment of the lower court is reversed, and the defendant
discharged. So ordered.
Araullo, C.J., Johnson, Street and Ostrand, JJ., concur.
Romualdez, J., concurs in the result.

Separate Opinions
MALCOLM, J., concurring:

I concur in the result for reasons which reach both the facts and the
law. In the first place, as to the facts, one cannot be convicted ex
post facto of a violation of a law and of an executive order issued
pursuant to the law, when the alleged violation thereof occurred on
August 6, 1919, while the Act of the Legislature in question was not
published until August 13, 1919, and the order was not published
until August 20, 1919. In the second place, as to the law, one
cannot be convicted of a violation of a law or of an order issued
pursuant to the law when both the law and the order fail to set up
an ascertainable standard of guilt. (U.S. vs. Cohen Grocery Company
[1921], 255 U.S., 81, holding section 4 of the Federal Food Control
Act of August 10, 1917, as amended, invalid.)
In order that there may not be any misunderstanding of our
position, I would respectfully invite attention to the decision of the
United States Supreme Court in German Alliance Ins. Co. vs. Lewis
([1914, 233 U.S., 389), concerning the legislative regulation of the
prices charged by business affected with a public interest, and to
another decision of the United States Supreme Court, that of
Marshall Field & Co. vs. Clark ([1892], 143 U.S., 649), which adopts
as its own the principles laid down in the case of Locke's Appeal
([1873], 72 Pa. St., 491), namely; "The Legislature cannot delegate its
power to make a law; but it can make a law to delegate a power to
determine some fact or state of things upon which the law makes, or
intends to make, its own action depend. To deny this would be to
stop the wheels of government. There are many things upon which
wise and useful legislation must depend which cannot be known to
the law-making power, and must, therefore, be a subject of inquiry
and determination outside of the halls of legislation."
Avancea and Villamor, JJ., concur.

Ynot vs. IAC

Police Power Not Validly Exercised
There had been an existing law which prohibited the slaughtering of
carabaos (EO 626). To strengthen the law, Marcos issued EO 626-A
which not only banned the movement of carabaos from
interprovinces but as well as the movement of carabeef. On 13 Jan
1984, Ynot was caught transporting 6 carabaos from Masbate to
Iloilo. He was then charged in violation of EO 626-A. Ynot averred EO
626-A as unconstitutional for it violated his right to be heard or his
right to due process. He said that the authority provided by EO 626A to outrightly confiscate carabaos even without being heard is
unconstitutional. The lower court ruled against Ynot ruling that the
EO is a valid exercise of police power in order to promote general
welfare so as to curb down the indiscriminate slaughter of carabaos.
ISSUE: Whether or not the law is valid.
HELD: The SC ruled that the EO is not valid as it indeed violates due
process. EO 626-A ctreated a presumption based on the judgment of
the executive. The movement of carabaos from one area to the
other does not mean a subsequent slaughter of the same would
ensue. Ynot should be given to defend himself and explain why the
carabaos are being transferred before they can be confiscated. The
SC found that the challenged measure is an invalid exercise of the
police power because the method employed to conserve the
carabaos is not reasonably necessary to the purpose of the law and,
worse, is unduly oppressive. Due process is violated because the
owner of the property confiscated is denied the right to be heard in
his defense and is immediately condemned and punished. The
conferment on the administrative authorities of the power to
adjudge the guilt of the supposed offender is a clear encroachment
on judicial functions and militates against the doctrine of separation
of powers. There is, finally, also an invalid delegation of legislative
powers to the officers mentioned therein who are granted unlimited
discretion in the distribution of the properties arbitrarily taken.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 74457 March 20, 1987
RESTITUTO YNOT, petitioner,
vs.
INTERMEDIATE APPELLATE COURT, THE STATION COMMANDER,
INTEGRATED NATIONAL POLICE, BAROTAC NUEVO, ILOILO and THE
REGIONAL DIRECTOR, BUREAU OF ANIMAL INDUSTRY, REGION IV,
ILOILO CITY, respondents.
Ramon A. Gonzales for petitioner.

CRUZ, J.:
The essence of due process is distilled in the immortal cry of
Themistocles to Alcibiades "Strike but hear me first!" It is this cry
that the petitioner in effect repeats here as he challenges the
constitutionality of Executive Order No. 626-A.
The said executive order reads in full as follows:
WHEREAS, the President has given orders prohibiting the
interprovincial movement of carabaos and the slaughtering of
carabaos not complying with the requirements of Executive Order
No. 626 particularly with respect to age;
WHEREAS, it has been observed that despite such orders the
violators still manage to circumvent the prohibition against interprovincial movement of carabaos by transporting carabeef instead;
and
WHEREAS, in order to achieve the purposes and objectives of
Executive Order No. 626 and the prohibition against interprovincial
movement of carabaos, it is necessary to strengthen the said
Executive Order and provide for the disposition of the carabaos and
carabeef subject of the violation;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers vested in me by the
Constitution, do hereby promulgate the following:
SECTION 1. Executive Order No. 626 is hereby amended such that
henceforth, no carabao regardless of age, sex, physical condition or
purpose and no carabeef shall be transported from one province to
another. The carabao or carabeef transported in violation of this
Executive Order as amended shall be subject to confiscation and
forfeiture by the government, to be distributed to charitable
institutions and other similar institutions as the Chairman of the
National Meat Inspection Commission may ay see fit, in the case of
carabeef, and to deserving farmers through dispersal as the Director
of Animal Industry may see fit, in the case of carabaos.
SECTION 2. This Executive Order shall take effect immediately.
Done in the City of Manila, this 25th day of October, in the year of
Our Lord, nineteen hundred and eighty.
The petitioner had transported six carabaos in a pump boat from
Masbate to Iloilo on January 13, 1984, when they were confiscated
by the police station commander of Barotac Nuevo, Iloilo, for
violation of the above measure. 1 The petitioner sued for recovery,
and the Regional Trial Court of Iloilo City issued a writ of replevin
upon his filing of a supersedeas bond of P12,000.00. After
considering the merits of the case, the court sustained the
confiscation of the carabaos and, since they could no longer be
produced, ordered the confiscation of the bond. The court also
declined to rule on the constitutionality of the executive order, as
raise by the petitioner, for lack of authority and also for its
2
presumed validity.

The petitioner appealed the decision to the Intermediate Appellate

3
Court,* which upheld the trial court, ** and he has now come
before us in this petition for review on certiorari.
The thrust of his petition is that the executive order is
unconstitutional insofar as it authorizes outright confiscation of the
carabao or carabeef being transported across provincial boundaries.
His claim is that the penalty is invalid because it is imposed without
according the owner a right to be heard before a competent and
impartial court as guaranteed by due process. He complains that the
measure should not have been presumed, and so sustained, as
constitutional. There is also a challenge to the improper exercise of
the legislative power by the former President under Amendment
4
No. 6 of the 1973 Constitution.
While also involving the same executive order, the case of Pesigan v.
5
Angeles is not applicable here. The question raised there was the
necessity of the previous publication of the measure in the Official
Gazette before it could be considered enforceable. We imposed the
requirement then on the basis of due process of law. In doing so,
however, this Court did not, as contended by the Solicitor General,
impliedly affirm the constitutionality of Executive Order No. 626-A.
That is an entirely different matter.
This Court has declared that while lower courts should observe a
becoming modesty in examining constitutional questions, they are
nonetheless not prevented from resolving the same whenever
6
warranted, subject only to review by the highest tribunal. We have
jurisdiction under the Constitution to "review, revise, reverse,
modify or affirm on appeal or certiorari, as the law or rules of court
may provide," final judgments and orders of lower courts in, among
7
others, all cases involving the constitutionality of certain measures.
This simply means that the resolution of such cases may be made in
the first instance by these lower courts.
And while it is true that laws are presumed to be constitutional, that
presumption is not by any means conclusive and in fact may be
rebutted. Indeed, if there be a clear showing of their invalidity, and
of the need to declare them so, then "will be the time to make the
8
hammer fall, and heavily," to recall Justice Laurel's trenchant
warning. Stated otherwise, courts should not follow the path of least
resistance by simply presuming the constitutionality of a law when it
is questioned. On the contrary, they should probe the issue more
deeply, to relieve the abscess, paraphrasing another distinguished
9
jurist, and so heal the wound or excise the affliction.
Judicial power authorizes this; and when the exercise is demanded,
there should be no shirking of the task for fear of retaliation, or loss
of favor, or popular censure, or any other similar inhibition
unworthy of the bench, especially this Court.
The challenged measure is denominated an executive order but it is
really presidential decree, promulgating a new rule instead of
merely implementing an existing law. It was issued by President
Marcos not for the purpose of taking care that the laws were
faithfully executed but in the exercise of his legislative authority
under Amendment No. 6. It was provided thereunder that whenever
in his judgment there existed a grave emergency or a threat or
imminence thereof or whenever the legislature failed or was unable
to act adequately on any matter that in his judgment required
immediate action, he could, in order to meet the exigency, issue
decrees, orders or letters of instruction that were to have the force

and effect of law. As there is no showing of any exigency to justify

the exercise of that extraordinary power then, the petitioner has
reason, indeed, to question the validity of the executive order.
Nevertheless, since the determination of the grounds was supposed
to have been made by the President "in his judgment, " a phrase
that will lead to protracted discussion not really necessary at this
time, we reserve resolution of this matter until a more appropriate
occasion. For the nonce, we confine ourselves to the more
fundamental question of due process.
It is part of the art of constitution-making that the provisions of the
charter be cast in precise and unmistakable language to avoid
controversies that might arise on their correct interpretation. That is
the Ideal. In the case of the due process clause, however, this rule
was deliberately not followed and the wording was purposely kept
ambiguous. In fact, a proposal to delineate it more clearly was
submitted in the Constitutional Convention of 1934, but it was
rejected by Delegate Jose P. Laurel, Chairman of the Committee on
the Bill of Rights, who forcefully argued against it. He was sustained
by the body. 10
The due process clause was kept intentionally vague so it would
remain also conveniently resilient. This was felt necessary because
due process is not, like some provisions of the fundamental law, an
"iron rule" laying down an implacable and immutable command for
all seasons and all persons. Flexibility must be the best virtue of the
guaranty. The very elasticity of the due process clause was meant to
make it adapt easily to every situation, enlarging or constricting its
protection as the changing times and circumstances may require.
Aware of this, the courts have also hesitated to adopt their own
specific description of due process lest they confine themselves in a
legal straitjacket that will deprive them of the elbow room they may
need to vary the meaning of the clause whenever indicated. Instead,
they have preferred to leave the import of the protection openended, as it were, to be "gradually ascertained by the process of
inclusion and exclusion in the course of the decision of cases as they
arise." 11 Thus, Justice Felix Frankfurter of the U.S. Supreme Court,
for example, would go no farther than to define due process and
in so doing sums it all up as nothing more and nothing less than
"the embodiment of the sporting Idea of fair play." 12
When the barons of England extracted from their sovereign liege the
reluctant promise that that Crown would thenceforth not proceed
against the life liberty or property of any of its subjects except by the
lawful judgment of his peers or the law of the land, they thereby
won for themselves and their progeny that splendid guaranty of
fairness that is now the hallmark of the free society. The solemn vow
that King John made at Runnymede in 1215 has since then
resounded through the ages, as a ringing reminder to all rulers,
benevolent or base, that every person, when confronted by the
stern visage of the law, is entitled to have his say in a fair and open
hearing of his cause.
The closed mind has no place in the open society. It is part of the
sporting Idea of fair play to hear "the other side" before an opinion
is formed or a decision is made by those who sit in judgment.
Obviously, one side is only one-half of the question; the other half
must also be considered if an impartial verdict is to be reached
based on an informed appreciation of the issues in contention. It is
indispensable that the two sides complement each other, as unto
the bow the arrow, in leading to the correct ruling after examination

of the problem not from one or the other perspective only but in its
totality. A judgment based on less that this full appraisal, on the
pretext that a hearing is unnecessary or useless, is tainted with the
vice of bias or intolerance or ignorance, or worst of all, in repressive
regimes, the insolence of power.
The minimum requirements of due process are notice and hearing
13 which, generally speaking, may not be dispensed with because
they are intended as a safeguard against official arbitrariness. It is a
gratifying commentary on our judicial system that the jurisprudence
of this country is rich with applications of this guaranty as proof of
our fealty to the rule of law and the ancient rudiments of fair play.
We have consistently declared that every person, faced by the
awesome power of the State, is entitled to "the law of the land,"
which Daniel Webster described almost two hundred years ago in
the famous Dartmouth College Case, 14 as "the law which hears
before it condemns, which proceeds upon inquiry and renders
judgment only after trial." It has to be so if the rights of every person
are to be secured beyond the reach of officials who, out of mistaken
zeal or plain arrogance, would degrade the due process clause into a
worn and empty catchword.
This is not to say that notice and hearing are imperative in every
case for, to be sure, there are a number of admitted exceptions. The
conclusive presumption, for example, bars the admission of contrary
evidence as long as such presumption is based on human experience
or there is a rational connection between the fact proved and the
fact ultimately presumed therefrom. 15 There are instances when
the need for expeditions action will justify omission of these
requisites, as in the summary abatement of a nuisance per se, like a
mad dog on the loose, which may be killed on sight because of the
immediate danger it poses to the safety and lives of the people.
Pornographic materials, contaminated meat and narcotic drugs are
inherently pernicious and may be summarily destroyed. The
passport of a person sought for a criminal offense may be cancelled
without hearing, to compel his return to the country he has fled. 16
Filthy restaurants may be summarily padlocked in the interest of the
public health and bawdy houses to protect the public morals. 17 In
such instances, previous judicial hearing may be omitted without
violation of due process in view of the nature of the property
involved or the urgency of the need to protect the general welfare
from a clear and present danger.
The protection of the general welfare is the particular function of
the police power which both restraints and is restrained by due
process. The police power is simply defined as the power inherent in
the State to regulate liberty and property for the promotion of the
general welfare. 18 By reason of its function, it extends to all the
great public needs and is described as the most pervasive, the least
limitable and the most demanding of the three inherent powers of
the State, far outpacing taxation and eminent domain. The
individual, as a member of society, is hemmed in by the police
power, which affects him even before he is born and follows him still
after he is dead from the womb to beyond the tomb in
practically everything he does or owns. Its reach is virtually limitless.
It is a ubiquitous and often unwelcome intrusion. Even so, as long as
the activity or the property has some relevance to the public
welfare, its regulation under the police power is not only proper but
necessary. And the justification is found in the venerable Latin
maxims, Salus populi est suprema lex and Sic utere tuo ut alienum
non laedas, which call for the subordination of individual interests to
the benefit of the greater number.

It is this power that is now invoked by the government to justify

Executive Order No. 626-A, amending the basic rule in Executive
Order No. 626, prohibiting the slaughter of carabaos except under
certain conditions. The original measure was issued for the reason,
as expressed in one of its Whereases, that "present conditions
demand that the carabaos and the buffaloes be conserved for the
benefit of the small farmers who rely on them for energy needs."
We affirm at the outset the need for such a measure. In the face of
the worsening energy crisis and the increased dependence of our
farms on these traditional beasts of burden, the government would
have been remiss, indeed, if it had not taken steps to protect and
preserve them.
A similar prohibition was challenged in United States v. Toribio, 19
where a law regulating the registration, branding and slaughter of
large cattle was claimed to be a deprivation of property without due
process of law. The defendant had been convicted thereunder for
having slaughtered his own carabao without the required permit,
and he appealed to the Supreme Court. The conviction was
affirmed. The law was sustained as a valid police measure to prevent
the indiscriminate killing of carabaos, which were then badly needed
by farmers. An epidemic had stricken many of these animals and the
reduction of their number had resulted in an acute decline in
agricultural output, which in turn had caused an incipient famine.
Furthermore, because of the scarcity of the animals and the
consequent increase in their price, cattle-rustling had spread
alarmingly, necessitating more effective measures for the
registration and branding of these animals. The Court held that the
questioned statute was a valid exercise of the police power and
declared in part as follows:
To justify the State in thus interposing its authority in behalf of the
public, it must appear, first, that the interests of the public generally,
as distinguished from those of a particular class, require such
interference; and second, that the means are reasonably necessary
for the accomplishment of the purpose, and not unduly oppressive
upon individuals. ...
From what has been said, we think it is clear that the enactment of
the provisions of the statute under consideration was required by
"the interests of the public generally, as distinguished from those of
a particular class" and that the prohibition of the slaughter of
carabaos for human consumption, so long as these animals are fit
for agricultural work or draft purposes was a "reasonably necessary"
limitation on private ownership, to protect the community from the
loss of the services of such animals by their slaughter by improvident
owners, tempted either by greed of momentary gain, or by a desire
to enjoy the luxury of animal food, even when by so doing the
productive power of the community may be measurably and
dangerously affected.
In the light of the tests mentioned above, we hold with the Toribio
Case that the carabao, as the poor man's tractor, so to speak, has a
direct relevance to the public welfare and so is a lawful subject of
Executive Order No. 626. The method chosen in the basic measure is
also reasonably necessary for the purpose sought to be achieved
and not unduly oppressive upon individuals, again following the
above-cited doctrine. There is no doubt that by banning the
slaughter of these animals except where they are at least seven
years old if male and eleven years old if female upon issuance of the
necessary permit, the executive order will be conserving those still

fit for farm work or breeding and preventing their improvident

depletion.
But while conceding that the amendatory measure has the same
lawful subject as the original executive order, we cannot say with
equal certainty that it complies with the second requirement, viz.,
that there be a lawful method. We note that to strengthen the
original measure, Executive Order No. 626-A imposes an absolute
ban not on the slaughter of the carabaos but on their movement,
providing that "no carabao regardless of age, sex, physical condition
or purpose (sic) and no carabeef shall be transported from one
province to another." The object of the prohibition escapes us. The
reasonable connection between the means employed and the
purpose sought to be achieved by the questioned measure is
missing
We do not see how the prohibition of the inter-provincial transport
of carabaos can prevent their indiscriminate slaughter, considering
that they can be killed anywhere, with no less difficulty in one
province than in another. Obviously, retaining the carabaos in one
province will not prevent their slaughter there, any more than
moving them to another province will make it easier to kill them
there. As for the carabeef, the prohibition is made to apply to it as
otherwise, so says executive order, it could be easily circumvented
by simply killing the animal. Perhaps so. However, if the movement
of the live animals for the purpose of preventing their slaughter
cannot be prohibited, it should follow that there is no reason either
to prohibit their transfer as, not to be flippant dead meat.
Even if a reasonable relation between the means and the end were
to be assumed, we would still have to reckon with the sanction that
the measure applies for violation of the prohibition. The penalty is
outright confiscation of the carabao or carabeef being transported,
to be meted out by the executive authorities, usually the police only.
In the Toribio Case, the statute was sustained because the penalty
prescribed was fine and imprisonment, to be imposed by the court
after trial and conviction of the accused. Under the challenged
measure, significantly, no such trial is prescribed, and the property
being transported is immediately impounded by the police and
declared, by the measure itself, as forfeited to the government.
In the instant case, the carabaos were arbitrarily confiscated by the
police station commander, were returned to the petitioner only
after he had filed a complaint for recovery and given a supersedeas
bond of P12,000.00, which was ordered confiscated upon his failure
to produce the carabaos when ordered by the trial court. The
executive order defined the prohibition, convicted the petitioner
and immediately imposed punishment, which was carried out
forthright. The measure struck at once and pounced upon the
petitioner without giving him a chance to be heard, thus denying
him the centuries-old guaranty of elementary fair play.
It has already been remarked that there are occasions when notice
and hearing may be validly dispensed with notwithstanding the
usual requirement for these minimum guarantees of due process. It
is also conceded that summary action may be validly taken in
administrative proceedings as procedural due process is not
20
necessarily judicial only. In the exceptional cases accepted,
however. there is a justification for the omission of the right to a
previous hearing, to wit, the immediacy of the problem sought to be
corrected and the urgency of the need to correct it.

In the case before us, there was no such pressure of time or action
calling for the petitioner's peremptory treatment. The properties
involved were not even inimical per se as to require their instant
destruction. There certainly was no reason why the offense
prohibited by the executive order should not have been proved first
in a court of justice, with the accused being accorded all the rights
safeguarded to him under the Constitution. Considering that, as we
21
held in Pesigan v. Angeles, Executive Order No. 626-A is penal in
nature, the violation thereof should have been pronounced not by
the police only but by a court of justice, which alone would have had
the authority to impose the prescribed penalty, and only after trial
and conviction of the accused.
We also mark, on top of all this, the questionable manner of the
disposition of the confiscated property as prescribed in the
questioned executive order. It is there authorized that the seized
property shall "be distributed to charitable institutions and other
similar institutions as the Chairman of the National Meat Inspection
Commission may see fit, in the case of carabeef, and to deserving
farmers through dispersal as the Director of Animal Industry may see
fit, in the case of carabaos." (Emphasis supplied.) The phrase "may
see fit" is an extremely generous and dangerous condition, if
condition it is. It is laden with perilous opportunities for partiality
and abuse, and even corruption. One searches in vain for the usual
standard and the reasonable guidelines, or better still, the
limitations that the said officers must observe when they make their
distribution. There is none. Their options are apparently boundless.
Who shall be the fortunate beneficiaries of their generosity and by
what criteria shall they be chosen? Only the officers named can
supply the answer, they and they alone may choose the grantee as
they see fit, and in their own exclusive discretion. Definitely, there is
here a "roving commission," a wide and sweeping authority that is
not "canalized within banks that keep it from overflowing," in short,
a clearly profligate and therefore invalid delegation of legislative
powers.
To sum up then, we find that the challenged measure is an invalid
exercise of the police power because the method employed to
conserve the carabaos is not reasonably necessary to the purpose of
the law and, worse, is unduly oppressive. Due process is violated
because the owner of the property confiscated is denied the right to
be heard in his defense and is immediately condemned and
punished. The conferment on the administrative authorities of the
power to adjudge the guilt of the supposed offender is a clear
encroachment on judicial functions and militates against the
doctrine of separation of powers. There is, finally, also an invalid
delegation of legislative powers to the officers mentioned therein
who are granted unlimited discretion in the distribution of the
properties arbitrarily taken. For these reasons, we hereby declare
Executive Order No. 626-A unconstitutional.
We agree with the respondent court, however, that the police
station commander who confiscated the petitioner's carabaos is not
liable in damages for enforcing the executive order in accordance
with its mandate. The law was at that time presumptively valid, and
it was his obligation, as a member of the police, to enforce it. It
would have been impertinent of him, being a mere subordinate of
the President, to declare the executive order unconstitutional and,
on his own responsibility alone, refuse to execute it. Even the trial
court, in fact, and the Court of Appeals itself did not feel they had
the competence, for all their superior authority, to question the
order we now annul.

The Court notes that if the petitioner had not seen fit to assert and
protect his rights as he saw them, this case would never have
reached us and the taking of his property under the challenged
measure would have become a fait accompli despite its invalidity.
We commend him for his spirit. Without the present challenge, the
matter would have ended in that pump boat in Masbate and
another violation of the Constitution, for all its obviousness, would
have been perpetrated, allowed without protest, and soon forgotten
in the limbo of relinquished rights.
The strength of democracy lies not in the rights it guarantees but in
the courage of the people to invoke them whenever they are
ignored or violated. Rights are but weapons on the wall if, like
expensive tapestry, all they do is embellish and impress. Rights, as
weapons, must be a promise of protection. They become truly
meaningful, and fulfill the role assigned to them in the free society,
if they are kept bright and sharp with use by those who are not
afraid to assert them.
WHEREFORE, Executive Order No. 626-A is hereby declared
unconstitutional. Except as affirmed above, the decision of the Court
of Appeals is reversed. The supersedeas bond is cancelled and the
amount thereof is ordered restored to the petitioner. No costs.
SO ORDERED.
Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Paras,
Gancayco, Padilla Bidin Sarmiento and Cortes, JJ., concur.
Melencio-Herrera and Feliciano, JJ., are on leave.

Pelaez vs. Auditor General

15 SCRA 569 Political Law Sufficient Standard Test and
Completeness Test
In 1964, President Ferdinand Marcos issued executive orders
creating 33 municipalities this was purportedly pursuant to Section
68 of the Revised Administrative Code which provides in part:

government may be changed by the President when public welfare

so requires and NOT the creation of municipality.
The Supreme Court declared that the power to create municipalities
is essentially and eminently legislative in character not
administrative (not executive).
Republic of the Philippines
SUPREME COURT
Manila

The President may by executive order define the boundary of

any municipality and may change the seat of government within
any subdivision to such place therein as the public welfare may
require

EN BANC
G.R. No. L-23825

The then Vice President, Emmanuel Pelaez, as a taxpayer, filed a

special civil action to prohibit the auditor general from disbursing
funds to be appropriated for the said municipalities. Pelaez claims
that the EOs were unconstitutional. He said that Section 68 of the
RAC had been impliedly repealed by Section 3 of RA 2370 which
provides that barrios may not be created or their boundaries
altered nor their names changed except by Act of Congress. Pelaez
argues: If the President, under this new law, cannot even create a
barrio, how can he create a municipality which is composed of
several barrios, since barrios are units of municipalities?
The Auditor General countered that there was no repeal and that
only barrios were barred from being created by the President.
Municipalities are exempt from the bar and that a municipality can
be created without creating barrios. He further maintains that
through Sec. 68 of the RAC, Congress has delegated such power to
create municipalities to the President.
ISSUE: Whether or not Congress has delegated the power to create
barrios to the President by virtue of Sec. 68 of the RAC.
HELD: No. There was no delegation here. 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, 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
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. In this case, Sec.
68 lacked any such standard. 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.
Further, although Sec. 68 provides the qualifying clause as the
public welfare may require which would mean that the President
may exercise such power as the public welfare may require is
present, still, such will not replace the standard needed for a proper
delegation of power. In the first place, what the phrase as the
public welfare may require qualifies is the text which immediately
precedes hence, the proper interpretation is the President may
change the seat of government within any subdivision to such place
therein as the public welfare may require. Only the seat of

December 24, 1965

EMMANUEL PELAEZ, petitioner,

vs.
THE AUDITOR GENERAL, respondent.
Zulueta, Gonzales, Paculdo and Associates for petitioner.
Office of the Solicitor General for respondent.
CONCEPCION, J.:
During the period from September 4 to October 29, 1964 the
President of the Philippines, purporting to act pursuant to Section 68
of the Revised Administrative Code, issued Executive Orders Nos. 93
to 121, 124 and 126 to 129; creating thirty-three (33) municipalities
1
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 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 of
several municipalities adversely affected by the aforementioned
executive orders because the latter have taken away 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.

several officers affected and assign such officers to the new districts
so formed.

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.

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.

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 several
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.

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 (36 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 (Binagonan), 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 Binagonan [34 Phil. 518, 519-5201)
in consequence of the fixing and definition, pursuant to Act No.
1748, of the common boundaries 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."
1a

Moreover, section 68 of the Revised Administrative Code, upon

which the disputed executive orders are based, provides:
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 (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

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, 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
2
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
2a
performance of his functions. 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
2b
acted within or beyond the scope of his authority. 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 sufficiently 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:
... 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
3
Section 1 of Act No. 1748, 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 ... 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
4
and have no binding effect. 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 68. 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 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, 23 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. 1035-1037); 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 competition" 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 unconstitutional
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 68 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.

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
process 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
7
enactment.

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,
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
5
corresponding provincial board.
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
6
concerned resides, for his office would thereby become vacant.
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

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,
8
accordingly, been, in effect, duly represented.
With respect to the second point, respondent alleges that he has not
as yet acted on any of the executive order & 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
allegation 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.

People of the Philippines vs Vera

Republic of the Philippines

SUPREME COURT
Manila

G.R. No. L-45685 November 16 1937 En Banc [Non Delegation of

Legislative Powers]

EN BANC
FACTS:
Cu-Unjieng was convicted of criminal charges by the trial court of
Manila. He filed a motion for reconsideration and four motions for
new trial but all were denied. He then elevated to the Supreme
Court of United States for review, which was also denied. The SC
denied the petition subsequently filed by Cu-Unjieng for a motion
for new trial and thereafter remanded the case to the court of
origin for execution of the judgment. CFI of Manila referred the
application for probation of the Insular Probation Office which
recommended denial of the same. Later, 7th branch of CFI Manila
set the petition for hearing. The Fiscal filed an opposition to the
granting of probation to Cu Unjieng, alleging, among other things,
that Act No. 4221, assuming that it has not been repealed by section
2 of Article XV of the Constitution, is nevertheless violative of
section 1, subsection (1), Article III of the Constitution guaranteeing
equal protection of the laws. The private prosecution also filed a
supplementary opposition, elaborating on the alleged
unconstitutionality on Act No. 4221, as an undue delegation of
legislative power to the provincial boards of several provinces (sec.
1, Art. VI, Constitution).
ISSUE:
Whether or not there is undue delegation of powers.
RULING:
Yes. SC conclude that section 11 of Act No. 4221 constitutes an
improper and unlawful delegation of legislative authority to the
provincial boards and is, for this reason, unconstitutional and void.
The challenged section of Act No. 4221 in section 11 which reads as
follows: "This Act shall apply only in those provinces in which the
respective provincial boards have provided for the salary of a
probation officer at rates not lower than those now provided for
provincial fiscals. Said probation officer shall be appointed by the
Secretary of Justice and shall be subject to the direction of the
Probation Office."
The provincial boards of the various provinces are to determine for
themselves, whether the Probation Law shall apply to their
provinces or not at all. The applicability and application of the
Probation Act are entirely placed in the hands of the provincial
boards. If the 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.
The clear policy of the law, as may be gleaned from a careful
examination of the whole context, is to make the application of the
system dependent entirely upon the affirmative action of the
different provincial boards through appropriation of the salaries for
probation officers at rates not lower than those provided for
provincial fiscals. Without such action on the part of the various
boards, no probation officers would be appointed by the Secretary
of Justice to act in the provinces. The Philippines is divided or
subdivided into provinces and it needs no argument to show that if
not one of the provinces and this is the actual situation now
appropriate the necessary fund for the salary of a probation officer,
probation under Act No. 4221 would be illusory. There can be no
probation without a probation officer. Neither can there be a
probation officer without the probation system.

G.R. No. L-45685

November 16, 1937

THE PEOPLE OF THE PHILIPPINE ISLANDS and HONGKONG &

SHANGHAI BANKING CORPORATION, petitioners,
vs.
JOSE O. VERA, Judge . of the Court of First Instance of Manila, and
MARIANO CU UNJIENG, respondents.
Office of the Solicitor General Tuason and City Fiscal Diaz for the
Government.
De Witt, Perkins and Ponce Enrile for the Hongkong and Shanghai
Banking Corporation.
Vicente J. Francisco, Feria and La O, Orense and Belmonte, and Gibbs
and McDonough for respondent Cu Unjieng.
No appearance for respondent Judge.
LAUREL, J.:
This is an original action instituted in this court on August 19, 1937,
for the issuance of the writ of certiorari and of prohibition to the
Court of First Instance of Manila so that this court may review the
actuations of the aforesaid Court of First Instance in criminal case
No. 42649 entitled "The People of the Philippine Islands vs. Mariano
Cu Unjieng, et al.", more particularly the application of the
defendant Mariano Cu Unjieng therein for probation under the
provisions of Act No. 4221, and thereafter prohibit the said Court of
First Instance from taking any further action or entertaining further
the aforementioned application for probation, to the end that the
defendant Mariano Cu Unjieng may be forthwith committed to
prison in accordance with the final judgment of conviction rendered
by this court in said case (G. R. No. 41200). 1
Petitioners herein, the People of the Philippine and the Hongkong
and Shanghai Banking Corporation, are respectively the plaintiff and
the offended party, and the respondent herein Mariano Cu Unjieng
is one of the defendants, in the criminal case entitled "The People of
the Philippine Islands vs. Mariano Cu Unjieng, et al.", criminal case
No. 42649 of the Court of First Instance of Manila and G.R. No.
41200 of this court. Respondent herein, Hon. Jose O. Vera, is the
Judge ad interim of the seventh branch of the Court of First Instance
of Manila, who heard the application of the defendant Mariano Cu
Unjieng for probation in the aforesaid criminal case.
The information in the aforesaid criminal case was filed with the
Court of First Instance of Manila on October 15, 1931, petitioner
herein Hongkong and Shanghai Banking Corporation intervening in
the case as private prosecutor. After a protracted trial unparalleled
in the annals of Philippine jurisprudence both in the length of time
spent by the court as well as in the volume in the testimony and the
bulk of the exhibits presented, the Court of First Instance of Manila,
on January 8, 1934, rendered a judgment of conviction sentencing
the defendant Mariano Cu Unjieng to indeterminate penalty ranging
from four years and two months of prision correccional to eight
years of prision mayor, to pay the costs and with reservation of civil
action to the offended party, the Hongkong and Shanghai Banking

Corporation. Upon appeal, the court, on March 26, 1935, modified

the sentence to an indeterminate penalty of from five years and six
months of prision correccional to seven years, six months and
twenty-seven days of prision mayor, but affirmed the judgment in all
other respects. Mariano Cu Unjieng filed a motion for
reconsideration and four successive motions for new trial which
were denied on December 17, 1935, and final judgment was
accordingly entered on December 18, 1935. The defendant
thereupon sought to have the case elevated on certiorari to the
Supreme Court of the United States but the latter denied the
petition for certiorari in
November, 1936. This court,
on
November 24, 1936, denied the petition subsequently filed
by the defendant for leave to file a second alternative motion for
reconsideration or new trial and thereafter remanded the case to
the court of origin for execution of the judgment.
The instant proceedings have to do with the application for
probation filed by the herein respondent Mariano Cu Unjieng
on
November 27, 1936, before the trial court, under the
provisions of Act No. 4221 of the defunct Philippine Legislature.
Herein respondent Mariano Cu Unjieng states in his petition, inter
alia, that he is innocent of the crime of which he was convicted, that
he has no criminal record and that he would observe good conduct
in the future. The Court of First Instance of Manila, Judge Pedro
Tuason presiding, referred the application for probation of the
Insular Probation Office which recommended denial of the same
June 18, 1937. Thereafter, the Court of First Instance of Manila,
seventh branch, Judge Jose O. Vera presiding, set the petition for
hearing on April 5, 1937.
On April 2, 1937, the Fiscal of the City of Manila filed an opposition
to the granting of probation to the herein respondent Mariano Cu
Unjieng. The private prosecution also filed an opposition on April 5,
1937, alleging, among other things, that Act No. 4221, assuming that
it has not been repealed by section 2 of Article XV of the
Constitution, is nevertheless violative of section 1, subsection (1),
Article III of the Constitution guaranteeing equal protection of the
laws for the reason that its applicability is not uniform throughout
the Islands and because section 11 of the said Act endows the
provincial boards with the power to make said law effective or
otherwise in their respective or otherwise in their respective
provinces. The private prosecution also filed a supplementary
opposition on April 19, 1937, elaborating on the alleged
unconstitutionality on Act No. 4221, as an undue delegation of
legislative power to the provincial boards of several provinces (sec.
1, Art. VI, Constitution). The City Fiscal concurred in the opposition
of the private prosecution except with respect to the questions
raised concerning the constitutionality of Act No. 4221.
On June 28, 1937, herein respondent Judge Jose O. Vera
promulgated a resolution with a finding that "las pruebas no han
establecido de unamanera concluyente la culpabilidad del
peticionario y que todos los hechos probados no son inconsistentes
o incongrentes con su inocencia" and concludes that the herein
respondent Mariano Cu Unjieng "es inocente por duda racional" of
the crime of which he stands convicted by this court in G.R. No.
41200, but denying the latter's petition for probation for the reason
that:
. . . Si este Juzgado concediera la poblacion solicitada por las
circunstancias y la historia social que se han expuesto en el cuerpo
de esta resolucion, que hacen al peticionario acreedor de la misma,

una parte de la opinion publica, atizada por los recelos y las

suspicacias, podria levantarse indignada contra un sistema de
probacion que permite atisbar en los procedimientos ordinarios de
una causa criminal perturbando la quietud y la eficacia de las
decisiones ya recaidas al traer a la superficie conclusiones
enteramente differentes, en menoscabo del interes publico que
demanda el respeto de las leyes y del veredicto judicial.
On July 3, 1937, counsel for the herein respondent Mariano Cu
Unjieng filed an exception to the resolution denying probation and a
notice of intention to file a motion for reconsideration. An
alternative motion for reconsideration or new trial was filed by
counsel on July 13, 1937. This was supplemented by an additional
motion for reconsideration submitted on July 14, 1937. The
aforesaid motions were set for hearing on July 31, 1937, but said
hearing was postponed at the petition of counsel for the respondent
Mariano Cu Unjieng because a motion for leave to intervene in the
case as amici curiae signed by thirty-three (thirty-four) attorneys had
just been filed with the trial court. Attorney Eulalio Chaves whose
signature appears in the aforesaid motion subsequently filed a
petition for leave to withdraw his appearance as amicus curiae on
the ground that the motion for leave to intervene as amici curiae
was circulated at a banquet given by counsel for Mariano Cu Unjieng
on the evening of July 30, 1937, and that he signed the same
"without mature deliberation and purely as a matter of courtesy to
the person who invited me (him)."
On August 6, 1937, the Fiscal of the City of Manila filed a motion
with the trial court for the issuance of an order of execution of the
judgment of this court in said case and forthwith to commit the
herein respondent Mariano Cu Unjieng to jail in obedience to said
judgment.
On August 7, 1937, the private prosecution filed its opposition to the
motion for leave to intervene as amici curiae aforementioned,
asking that a date be set for a hearing of the same and that, at all
events, said motion should be denied with respect to certain
attorneys signing the same who were members of the legal staff of
the several counsel for Mariano Cu Unjieng. On August 10, 1937,
herein respondent Judge Jose O. Vera issued an order requiring all
parties including the movants for intervention as amici curiae to
appear before the court on August 14, 1937. On the last-mentioned
date, the Fiscal of the City of Manila moved for the hearing of his
motion for execution of judgment in preference to the motion for
leave to intervene as amici curiae but, upon objection of counsel for
Mariano Cu Unjieng, he moved for the postponement of the hearing
of both motions. The respondent judge thereupon set the hearing of
the motion for execution on August 21, 1937, but proceeded to
consider the motion for leave to intervene as amici curiae as in
order. Evidence as to the circumstances under which said motion for
leave to intervene as amici curiae was signed and submitted to court
was to have been heard on August 19, 1937. But at this juncture,
herein petitioners came to this court on extraordinary legal process
to put an end to what they alleged was an interminable proceeding
in the Court of First Instance of Manila which fostered "the
campaign of the defendant Mariano Cu Unjieng for delay in the
execution of the sentence imposed by this Honorable Court on him,
exposing the courts to criticism and ridicule because of the apparent
inability of the judicial machinery to make effective a final judgment
of this court imposed on the defendant Mariano Cu Unjieng."

The scheduled hearing before the trial court was accordingly

suspended upon the issuance of a temporary restraining order by
this court on August 21, 1937.
To support their petition for the issuance of the extraordinary writs
of certiorari and prohibition, herein petitioners allege that the
respondent judge has acted without jurisdiction or in excess of his
jurisdiction:
I. Because said respondent judge lacks the power to place
respondent Mariano Cu Unjieng under probation for the following
reason:
(1) Under section 11 of Act No. 4221, the said of the Philippine
Legislature is made to apply only to the provinces of the Philippines;
it nowhere states that it is to be made applicable to chartered cities
like the City of Manila.
(2) While section 37 of the Administrative Code contains a proviso to
the effect that in the absence of a special provision, the term
"province" may be construed to include the City of Manila for the
purpose of giving effect to laws of general application, it is also true
that Act No. 4221 is not a law of general application because it is
made to apply only to those provinces in which the respective
provincial boards shall have provided for the salary of a probation
officer.
(3) Even if the City of Manila were considered to be a province, still,
Act No. 4221 would not be applicable to it because it has provided
for the salary of a probation officer as required by section 11
thereof; it being immaterial that there is an Insular Probation Officer
willing to act for the City of Manila, said Probation Officer provided
for in section 10 of Act No. 4221 being different and distinct from
the Probation Officer provided for in section 11 of the same Act.
II. Because even if the respondent judge originally had jurisdiction to
entertain the application for probation of the respondent Mariano
Cu Unjieng, he nevertheless acted without jurisdiction or in excess
thereof in continuing to entertain the motion for reconsideration
and by failing to commit Mariano Cu Unjieng to prison after he had
promulgated his resolution of June 28, 1937, denying Mariano Cu
Unjieng's application for probation, for the reason that:
(1) His jurisdiction and power in probation proceedings is limited by
Act No. 4221 to the granting or denying of applications for
probation.
(2) After he had issued the order denying Mariano Cu Unjieng's
petition for probation on June 28, 1937, it became final and
executory at the moment of its rendition.
(3) No right on appeal exists in such cases.
(4) The respondent judge lacks the power to grant a rehearing of
said order or to modify or change the same.
III. Because the respondent judge made a finding that Mariano Cu
Unjieng is innocent of the crime for which he was convicted by final
judgment of this court, which finding is not only presumptuous but
without foundation in fact and in law, and is furthermore in

contempt of this court and a violation of the respondent's oath of

office as ad interim judge of first instance.
IV. Because the respondent judge has violated and continues to
violate his duty, which became imperative when he issued his order
of June 28, 1937, denying the application for probation, to commit
his co-respondent to jail.
Petitioners also avers that they have no other plain, speedy and
adequate remedy in the ordinary course of law.
In a supplementary petition filed on September 9, 1937, the
petitioner Hongkong and Shanghai Banking Corporation further
contends that Act No. 4221 of the Philippine Legislature providing
for a system of probation for persons eighteen years of age or over
who are convicted of crime, is unconstitutional because it is violative
of section 1, subsection (1), Article III, of the Constitution of the
Philippines guaranteeing equal protection of the laws because it
confers upon the provincial board of its province the absolute
discretion to make said law operative or otherwise in their
respective provinces, because it constitutes an unlawful and
improper delegation to the provincial boards of the several
provinces of the legislative power lodged by the Jones Law (section
8) in the Philippine Legislature and by the Constitution (section 1,
Art. VI) in the National Assembly; and for the further reason that it
gives the provincial boards, in contravention of the Constitution
(section 2, Art. VIII) and the Jones Law (section 28), the authority to
enlarge the powers of the Court of First Instance of different
provinces without uniformity. In another supplementary petition
dated September 14, 1937, the Fiscal of the City of Manila, in behalf
of one of the petitioners, the People of the Philippine Islands,
concurs for the first time with the issues raised by other petitioner
regarding the constitutionality of Act No. 4221, and on the oral
argument held on October 6, 1937, further elaborated on the theory
that probation is a form of reprieve and therefore Act. No. 4221 is
an encroachment on the exclusive power of the Chief Executive to
grant pardons and reprieves. On October 7, 1937, the City Fiscal filed
two memorandums in which he contended that Act No. 4221 not
only encroaches upon the pardoning power to the executive, but
also constitute an unwarranted delegation of legislative power and a
denial of the equal protection of the laws. On October 9, 1937, two
memorandums, signed jointly by the City Fiscal and the SolicitorGeneral, acting in behalf of the People of the Philippine Islands, and
by counsel for the petitioner, the Hongkong and Shanghai Banking
Corporation, one sustaining the power of the state to impugn the
validity of its own laws and the other contending that Act No. 4221
constitutes an unwarranted delegation of legislative power, were
presented. Another joint memorandum was filed by the same
persons on the same day, October 9, 1937, alleging that Act No.
4221 is unconstitutional because it denies the equal protection of
the laws and constitutes an unlawful delegation of legislative power
and, further, that the whole Act is void: that the Commonwealth is
not estopped from questioning the validity of its laws; that the
private prosecution may intervene in probation proceedings and
may attack the probation law as unconstitutional; and that this court
may pass upon the constitutional question in prohibition
proceedings.
Respondents in their answer dated August 31, 1937, as well as in
their oral argument and memorandums, challenge each and every
one of the foregoing proposition raised by the petitioners.

As special defenses, respondents allege:

(1) That the present petition does not state facts sufficient in law to
warrant the issuance of the writ of certiorari or of prohibition.
(2) That the aforesaid petition is premature because the remedy
sought by the petitioners is the very same remedy prayed for by
them before the trial court and was still pending resolution before
the trial court when the present petition was filed with this court.
(3) That the petitioners having themselves raised the question as to
the execution of judgment before the trial court, said trial court has
acquired exclusive jurisdiction to resolve the same under the theory
that its resolution denying probation is unappealable.
(4) That upon the hypothesis that this court has concurrent
jurisdiction with the Court of First Instance to decide the question as
to whether or not the execution will lie, this court nevertheless
cannot exercise said jurisdiction while the Court of First Instance has
assumed jurisdiction over the same upon motion of herein
petitioners themselves.
(5) That upon the procedure followed by the herein petitioners in
seeking to deprive the trial court of its jurisdiction over the case and
elevate the proceedings to this court, should not be tolerated
because it impairs the authority and dignity of the trial court which
court while sitting in the probation cases is "a court of limited
jurisdiction but of great dignity."
(6) That under the supposition that this court has jurisdiction to
resolve the question submitted to and pending resolution by the
trial court, the present action would not lie because the resolution
of the trial court denying probation is appealable; for although the
Probation Law does not specifically provide that an applicant for
probation may appeal from a resolution of the Court of First
Instance denying probation, still it is a general rule in this jurisdiction
that a final order, resolution or decision of an inferior court is
appealable to the superior court.
(7) That the resolution of the trial court denying probation of herein
respondent Mariano Cu Unjieng being appealable, the same had not
become final and executory for the reason that the said respondent
had filed an alternative motion for reconsideration and new trial
within the requisite period of fifteen days, which motion the trial
court was able to resolve in view of the restraining order
improvidently and erroneously issued by this court.lawphi1.net
(8) That the Fiscal of the City of Manila had by implication admitted
that the resolution of the trial court denying probation is not final
and unappealable when he presented his answer to the motion for
reconsideration and agreed to the postponement of the hearing of
the said motion.
(9) That under the supposition that the order of the trial court
denying probation is not appealable, it is incumbent upon the
accused to file an action for the issuance of the writ of certiorari
with mandamus, it appearing that the trial court, although it
believed that the accused was entitled to probation, nevertheless
denied probation for fear of criticism because the accused is a rich
man; and that, before a petition for certiorari grounded on an
irregular exercise of jurisdiction by the trial court could lie, it is

incumbent upon the petitioner to file a motion for reconsideration

specifying the error committed so that the trial court could have an
opportunity to correct or cure the same.
(10) That on hypothesis that the resolution of this court is not
appealable, the trial court retains its jurisdiction within a reasonable
time to correct or modify it in accordance with law and justice; that
this power to alter or modify an order or resolution is inherent in the
courts and may be exercise either motu proprio or upon petition of
the proper party, the petition in the latter case taking the form of a
motion for reconsideration.
(11) That on the hypothesis that the resolution of the trial court is
appealable as respondent allege, said court cannot order execution
of the same while it is on appeal, for then the appeal would not be
availing because the doors of probation will be closed from the
moment the accused commences to serve his sentence (Act No.
4221, sec. 1; U.S. vs. Cook, 19 Fed. [2d], 827).
In their memorandums filed on October 23, 1937, counsel for the
respondents maintain that Act No. 4221 is constitutional because,
contrary to the allegations of the petitioners, it does not constitute
an undue delegation of legislative power, does not infringe the equal
protection clause of the Constitution, and does not encroach upon
the pardoning power of the Executive. In an additional
memorandum filed on the same date, counsel for the respondents
reiterate the view that section 11 of Act No. 4221 is free from
constitutional objections and contend, in addition, that the private
prosecution may not intervene in probation proceedings, much less
question the validity of Act No. 4221; that both the City Fiscal and
the Solicitor-General are estopped from questioning the validity of
the Act; that the validity of Act cannot be attacked for the first time
before this court; that probation in unavailable; and that, in any
event, section 11 of the Act No. 4221 is separable from the rest of
the Act. The last memorandum for the respondent Mariano Cu
Unjieng was denied for having been filed out of time but was
admitted by resolution of this court and filed anew
on
November 5, 1937. This memorandum elaborates on some
of the points raised by the respondents and refutes those brought
up by the petitioners.
In the scrutiny of the pleadings and examination of the various
aspects of the present case, we noted that the court below, in
passing upon the merits of the application of the respondent
Mariano Cu Unjieng and in denying said application assumed the
task not only of considering the merits of the application, but of
passing upon the culpability of the applicant, notwithstanding the
final pronouncement of guilt by this court. (G.R. No. 41200.)
Probation implies guilt be final judgment. While a probation case
may look into the circumstances attending the commission of the
offense, this does not authorize it to reverse the findings and
conclusive of this court, either directly or indirectly, especially
wherefrom its own admission reliance was merely had on the
printed briefs, averments, and pleadings of the parties. As already
observed by this court in Shioji vs. Harvey ([1922], 43 Phil., 333,
337), and reiterated in subsequent cases, "if each and every Court of
First Instance could enjoy the privilege of overruling decisions of the
Supreme Court, there would be no end to litigation, and judicial
chaos would result." A becoming modesty of inferior courts
demands conscious realization of the position that they occupy in
the interrelation and operation of the intergrated judicial system of
the nation.

After threshing carefully the multifarious issues raised by both

counsel for the petitioners and the respondents, this court prefers
to cut the Gordian knot and take up at once the two fundamental
questions presented, namely, (1) whether or not the
constitutionality of Act No. 4221 has been properly raised in these
proceedings; and (2) in the affirmative, whether or not said Act is
constitutional. Considerations of these issues will involve a
discussion of certain incidental questions raised by the parties.
To arrive at a correct conclusion on the first question, resort to
certain guiding principles is necessary. It is a well-settled rule that
the constitutionality of an act of the legislature will not be
determined by the courts unless that question is properly raised and
presented inappropriate cases and is necessary to a determination
of the case; i.e., the issue of constitutionality must be the very lis
mota presented. (McGirr vs. Hamilton and Abreu [1915], 30 Phil.,
563, 568; 6 R. C. L., pp. 76, 77; 12 C. J., pp. 780-782, 783.)
The question of the constitutionality of an act of the legislature is
frequently raised in ordinary actions. Nevertheless, resort may be
made to extraordinary legal remedies, particularly where the
remedies in the ordinary course of law even if available, are not
plain, speedy and adequate. Thus, in Cu Unjieng vs. Patstone
([1922]), 42 Phil., 818), this court held that the question of the
constitutionality of a statute may be raised by the petitioner in
mandamus proceedings (see, also, 12 C. J., p. 783); and in
Government of the Philippine Islands vs. Springer ([1927], 50 Phil.,
259 [affirmed in Springer vs. Government of the Philippine Islands
(1928), 277 U. S., 189; 72 Law. ed., 845]), this court declared an act
of the legislature unconstitutional in an action of quo warranto
brought in the name of the Government of the Philippines. It has
also been held that the constitutionality of a statute may be
questioned in habeas corpus proceedings (12 C. J., p. 783; Bailey on
Habeas Corpus, Vol. I, pp. 97, 117), although there are authorities to
the contrary; on an application for injunction to restrain action
under the challenged statute (mandatory, see Cruz vs. Youngberg
[1931], 56 Phil., 234); and even on an application for preliminary
injunction where the determination of the constitutional question is
necessary to a decision of the case. (12 C. J., p. 783.) The same may
be said as regards prohibition and certiorari.(Yu Cong Eng vs.
Trinidad [1925], 47 Phil., 385; [1926], 271 U. S., 500; 70 Law. ed.,
1059; Bell vs. First Judicial District Court [1905], 28 Nev., 280; 81
Pac., 875; 113 A. S. R., 854; 6 Ann. Cas., 982; 1 L. R. A. [N. S], 843,
and cases cited). The case of Yu Cong Eng vs. Trinidad, supra,
decided by this court twelve years ago was, like the present one, an
original action for certiorari and prohibition. The constitutionality of
Act No. 2972, popularly known as the Chinese Bookkeeping Law,
was there challenged by the petitioners, and the constitutional issue
was not met squarely by the respondent in a demurrer. A point was
raised "relating to the propriety of the constitutional question being
decided in original proceedings in prohibition." This court decided to
take up the constitutional question and, with two justices dissenting,
held that Act No. 2972 was constitutional. The case was elevated on
writ of certiorari to the Supreme Court of the United States which
reversed the judgment of this court and held that the Act was
invalid. (271 U. S., 500; 70 Law. ed., 1059.) On the question of
jurisdiction, however, the Federal Supreme Court, though its Chief
Justice, said:
By the Code of Civil Procedure of the Philippine Islands, section 516,
the Philippine supreme court is granted concurrent jurisdiction in
prohibition with courts of first instance over inferior tribunals or

persons, and original jurisdiction over courts of first instance, when

such courts are exercising functions without or in excess of their
jurisdiction. It has been held by that court that the question of the
validity of the criminal statute must usually be raised by a defendant
in the trial court and be carried regularly in review to the Supreme
Court. (Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil.,
192). But in this case where a new act seriously affected numerous
persons and extensive property rights, and was likely to cause a
multiplicity of actions, the Supreme Court exercised its discretion to
bring the issue to the act's validity promptly before it and decide in
the interest of the orderly administration of justice. The court relied
by analogy upon the cases of Ex parte Young (209 U. S., 123;52 Law
ed., 714; 13 L. R. A. [N. S.] 932; 28 Sup. Ct. Rep., 441; 14 Ann. Ca.,
764; Traux vs. Raich, 239 U. S., 33; 60 Law. ed., 131; L. R. A. 1916D,
545; 36 Sup. Ct. Rep., 7; Ann. Cas., 1917B, 283; and Wilson vs. New,
243 U. S., 332; 61 Law. ed., 755; L. R. A. 1917E, 938; 37 Sup. Ct. Rep.,
298; Ann. Cas. 1918A, 1024). Although objection to the jurisdiction
was raise by demurrer to the petition, this is now disclaimed on
behalf of the respondents, and both parties ask a decision on the
merits. In view of the broad powers in prohibition granted to that
court under the Island Code, we acquiesce in the desire of the
parties.
The writ of prohibition is an extraordinary judicial writ issuing out of
a court of superior jurisdiction and directed to an inferior court, for
the purpose of preventing the inferior tribunal from usurping a
jurisdiction with which it is not legally vested. (High, Extraordinary
Legal Remedies, p. 705.) The general rule, although there is a conflict
in the cases, is that the merit of prohibition will not lie whether the
inferior court has jurisdiction independent of the statute the
constitutionality of which is questioned, because in such cases the
interior court having jurisdiction may itself determine the
constitutionality of the statute, and its decision may be subject to
review, and consequently the complainant in such cases ordinarily
has adequate remedy by appeal without resort to the writ of
prohibition. But where the inferior court or tribunal derives its
jurisdiction exclusively from an unconstitutional statute, it may be
prevented by the writ of prohibition from enforcing that statute. (50
C. J., 670; Ex parte Round tree [1874, 51 Ala., 42; In re Macfarland,
30 App. [D. C.], 365; Curtis vs. Cornish [1912], 109 Me., 384; 84 A.,
799; Pennington vs. Woolfolk [1880], 79 Ky., 13; State vs. Godfrey
[1903], 54 W. Va., 54; 46 S. E., 185; Arnold vs. Shields [1837], 5 Dana,
19; 30 Am. Dec., 669.)
Courts of First Instance sitting in probation proceedings derived their
jurisdiction solely from Act No. 4221 which prescribes in detailed
manner the procedure for granting probation to accused persons
after their conviction has become final and before they have served
their sentence. It is true that at common law the authority of the
courts to suspend temporarily the execution of the sentence is
recognized and, according to a number of state courts, including
those of Massachusetts, Michigan, New York, and Ohio, the power is
inherent in the courts (Commonwealth vs. Dowdican's Bail [1874],
115 Mass., 133; People vs. Stickel [1909], 156 Mich., 557; 121 N. W.,
497; People ex rel. Forsyth vs. Court of Session [1894], 141 N. Y.,
288; Weber vs. State [1898], 58 Ohio St., 616). But, in the leading
case of Ex parte United States ([1916], 242 U. S., 27; 61 Law. ed.,
129; L. R. A., 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B,
355), the Supreme Court of the United States expressed the opinion
that under the common law the power of the court was limited to
temporary suspension, and brushed aside the contention as to
inherent judicial power saying, through Chief Justice White:

Indisputably under our constitutional system the right to try

offenses against the criminal laws and upon conviction to impose
the punishment provided by law is judicial, and it is equally to be
conceded that, in exerting the powers vested in them on such
subject, courts inherently possess ample right to exercise
reasonable, that is, judicial, discretion to enable them to wisely exert
their authority. But these concessions afford no ground for the
contention as to power here made, since it must rest upon the
proposition that the power to enforce begets inherently a discretion
to permanently refuse to do so. And the effect of the proposition
urged upon the distribution of powers made by the Constitution will
become apparent when it is observed that indisputable also is it that
the authority to define and fix the punishment for crime is legislative
and includes the right in advance to bring within judicial discretion,
for the purpose of executing the statute, elements of consideration
which would be otherwise beyond the scope of judicial authority,
and that the right to relieve from the punishment, fixed by law and
ascertained according to the methods by it provided belongs to the
executive department.
Justice Carson, in his illuminating concurring opinion in the case of
Director of Prisons vs. Judge of First Instance of Cavite (29 Phil., 265),
decided by this court in 1915, also reached the conclusion that the
power to suspend the execution of sentences pronounced in
criminal cases is not inherent in the judicial function. "All are
agreed", he said, "that in the absence of statutory authority, it does
not lie within the power of the courts to grant such suspensions." (at
p. 278.) Both petitioner and respondents are correct, therefore,
when they argue that a Court of First Instance sitting in probation
proceedings is a court of limited jurisdiction. Its jurisdiction in such
proceedings is conferred exclusively by Act No. 4221 of the
Philippine Legislature.
It is, of course, true that the constitutionality of a statute will not be
considered on application for prohibition where the question has
not been properly brought to the attention of the court by objection
of some kind (Hill vs. Tarver [1901], 130 Ala., 592; 30 S., 499; State
ex rel. Kelly vs. Kirby [1914], 260 Mo., 120; 168 S. W., 746). In the
case at bar, it is unquestionable that the constitutional issue has
been squarely presented not only before this court by the
petitioners but also before the trial court by the private prosecution.
The respondent, Hon. Jose O Vera, however, acting as judge of the
court below, declined to pass upon the question on the ground that
the private prosecutor, not being a party whose rights are affected
by the statute, may not raise said question. The respondent judge
cited Cooley on Constitutional Limitations (Vol. I, p. 339; 12 C. J., sec.
177, pp. 760 and 762), and McGlue vs. Essex County ([1916], 225
Mass., 59; 113 N. E., 742, 743), as authority for the proposition that
a court will not consider any attack made on the constitutionality of
a statute by one who has no interest in defeating it because his
rights are not affected by its operation. The respondent judge
further stated that it may not motu proprio take up the
constitutional question and, agreeing with Cooley that "the power to
declare a legislative enactment void is one which the judge,
conscious of the fallibility of the human judgment, will shrink from
exercising in any case where he can conscientiously and with due
regard to duty and official oath decline the responsibility"
(Constitutional Limitations, 8th ed., Vol. I, p. 332), proceeded on the
assumption that Act No. 4221 is constitutional. While therefore, the
court a quo admits that the constitutional question was raised
before it, it refused to consider the question solely because it was
not raised by a proper party. Respondents herein reiterates this
view. The argument is advanced that the private prosecution has no

personality to appear in the hearing of the application for probation

of defendant Mariano Cu Unjieng in criminal case No. 42648 of the
Court of First Instance of Manila, and hence the issue of
constitutionality was not properly raised in the lower court.
Although, as a general rule, only those who are parties to a suit may
question the constitutionality of a statute involved in a judicial
decision, it has been held that since the decree pronounced by a
court without jurisdiction is void, where the jurisdiction of the court
depends on the validity of the statute in question, the issue of the
constitutionality will be considered on its being brought to the
attention of the court by persons interested in the effect to be given
the statute.(12 C. J., sec. 184, p. 766.) And, even if we were to
concede that the issue was not properly raised in the court below by
the proper party, it does not follow that the issue may not be here
raised in an original action of certiorari and prohibitions. It is true
that, as a general rule, the question of constitutionality must be
raised at the earliest opportunity, so that if not raised by the
pleadings, ordinarily it may not be raised at the trial, and if not
raised in the trial court, it will not considered on appeal. (12 C. J., p.
786. See, also, Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26
Phil., 192, 193-195.) But we must state that the general rule admits
of exceptions. Courts, in the exercise of sounds discretion, may
determine the time when a question affecting the constitutionality
of a statute should be presented. (In re Woolsey [1884], 95 N. Y.,
135, 144.) Thus, in criminal cases, although there is a very sharp
conflict of authorities, it is said that the question may be raised for
the first time at any stage of the proceedings, either in the trial court
or on appeal. (12 C. J., p. 786.) Even in civil cases, it has been held
that it is the duty of a court to pass on the constitutional question,
though raised for the first time on appeal, if it appears that a
determination of the question is necessary to a decision of the case.
(McCabe's Adm'x vs. Maysville & B. S. R. Co., [1910], 136 ky., 674;
124 S. W., 892; Lohmeyer vs. St. Louis Cordage Co. [1908], 214 Mo.,
685; 113 S. W. 1108; Carmody vs. St. Louis Transit Co., [1905], 188
Mo., 572; 87 S. W., 913.) And it has been held that a constitutional
question will be considered by an appellate court at any time, where
it involves the jurisdiction of the court below (State vs. Burke [1911],
175 Ala., 561; 57 S., 870.) As to the power of this court to consider
the constitutional question raised for the first time before this court
in these proceedings, we turn again and point with emphasis to the
case of Yu Cong Eng vs. Trinidad, supra. And on the hypotheses that
the Hongkong & Shanghai Banking Corporation, represented by the
private prosecution, is not the proper party to raise the
constitutional question here a point we do not now have to
decide we are of the opinion that the People of the Philippines,
represented by the Solicitor-General and the Fiscal of the City of
Manila, is such a proper party in the present proceedings. The
unchallenged rule is that the person who impugns the validity of a
statute must have a personal and substantial interest in the case
such that he has sustained, or will sustained, direct injury as a result
of its enforcement. It goes without saying that if Act No. 4221 really
violates the constitution, the People of the Philippines, in whose
name the present action is brought, has a substantial interest in
having it set aside. Of grater import than the damage caused by the
illegal expenditure of public funds is the mortal wound inflicted
upon the fundamental law by the enforcement of an invalid statute.
Hence, the well-settled rule that the state can challenge the validity
of its own laws. In Government of the Philippine Islands vs. Springer
([1927]), 50 Phil., 259 (affirmed in Springer vs. Government of the
Philippine Islands [1928], 277 U.S., 189; 72 Law. ed., 845), this court
declared an act of the legislature unconstitutional in an action
instituted in behalf of the Government of the Philippines. In
Attorney General vs. Perkins ([1889], 73 Mich., 303, 311, 312; 41 N.

W. 426, 428, 429), the State of Michigan, through its Attorney

General, instituted quo warranto proceedings to test the right of the
respondents to renew a mining corporation, alleging that the statute
under which the respondents base their right was unconstitutional
because it impaired the obligation of contracts. The capacity of the
chief law officer of the state to question the constitutionality of the
statute was though, as a general rule, only those who are parties to
a suit may question the constitutionality of a statute involved in a
judicial decision, it has been held that since the decree pronounced
by a court without jurisdiction in void, where the jurisdiction of the
court depends on the validity of the statute in question, the issue of
constitutionality will be considered on its being brought to the
attention of the court by persons interested in the effect to begin
the statute. (12 C.J., sec. 184, p. 766.) And, even if we were to
concede that the issue was not properly raised in the court below by
the proper party, it does not follow that the issue may not be here
raised in an original action of certiorari and prohibition. It is true
that, as a general rule, the question of constitutionality must be
raised at the earliest opportunity, so that if not raised by the
pleadings, ordinarily it may not be raised a the trial, and if not raised
in the trial court, it will not be considered on appeal. (12 C.J., p. 786.
See, also, Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil.,
192, 193-195.) But we must state that the general rule admits of
exceptions. Courts, in the exercise of sound discretion, may
determine the time when a question affecting the constitutionality
of a statute should be presented. (In re Woolsey [19884], 95 N.Y.,
135, 144.) Thus, in criminal cases, although there is a very sharp
conflict of authorities, it is said that the question may be raised for
the first time at any state of the proceedings, either in the trial court
or on appeal. (12 C.J., p. 786.) Even in civil cases, it has been held
that it is the duty of a court to pass on the constitutional question,
though raised for first time on appeal, if it appears that a
determination of the question is necessary to a decision of the case.
(McCabe's Adm'x vs. Maysville & B. S. R. Co. [1910], 136 Ky., 674;
124 S. W., 892; Lohmeyer vs. St. Louis, Cordage Co. [1908], 214 Mo.
685; 113 S. W., 1108; Carmody vs. St. Louis Transit Co. [1905], 188
Mo., 572; 87 S. W., 913.) And it has been held that a constitutional
question will be considered by an appellate court at any time, where
it involves the jurisdiction of the court below (State vs. Burke [1911],
175 Ala., 561; 57 S., 870.) As to the power of this court to consider
the constitutional question raised for the first time before this court
in these proceedings, we turn again and point with emphasis to the
case of Yu Cong Eng. vs. Trinidad, supra. And on the hypothesis that
the Hongkong & Shanghai Banking Corporation, represented by the
private prosecution, is not the proper party to raise the
constitutional question here a point we do not now have to
decide we are of the opinion that the People of the Philippines,
represented by the Solicitor-General and the Fiscal of the City of
Manila, is such a proper party in the present proceedings. The
unchallenged rule is that the person who impugns the validity of a
statute must have a personal and substantial interest in the case
such that he has sustained, or will sustain, direct injury as a result of
its enforcement. It goes without saying that if Act No. 4221 really
violates the Constitution, the People of the Philippines, in whose
name the present action is brought, has a substantial interest in
having it set aside. Of greater import than the damage caused by the
illegal expenditure of public funds is the mortal wound inflicted
upon the fundamental law by the enforcement of an invalid statute.
Hence, the well-settled rule that the state can challenge the validity
of its own laws. In Government of the Philippine Islands vs. Springer
([1927]), 50 Phil., 259 (affirmed in Springer vs. Government of the
Philippine Islands [1928], 277 U.S., 189; 72 Law. ed., 845), this court
declared an act of the legislature unconstitutional in an action

instituted in behalf of the Government of the Philippines. In

Attorney General vs. Perkings([1889], 73 Mich., 303, 311, 312; 41
N.W., 426, 428, 429), the State of Michigan, through its Attorney
General, instituted quo warranto proceedings to test the right of the
respondents to renew a mining corporation, alleging that the statute
under which the respondents base their right was unconstitutional
because it impaired the obligation of contracts. The capacity of the
chief law officer of the state to question the constitutionality of the
statute was itself questioned. Said the Supreme Court of Michigan,
through Champlin, J.:
. . . The idea seems to be that the people are estopped from
questioning the validity of a law enacted by their representatives;
that to an accusation by the people of Michigan of usurpation their
government, a statute enacted by the people of Michigan is an
adequate answer. The last proposition is true, but, if the statute
relied on in justification is unconstitutional, it is statute only in form,
and lacks the force of law, and is of no more saving effect to justify
action under it than if it had never been enacted. The constitution is
the supreme law, and to its behests the courts, the legislature, and
the people must bow . . . The legislature and the respondents are
not the only parties in interest upon such constitutional questions.
As was remarked by Mr. Justice Story, in speaking of an
acquiescence by a party affected by an unconstitutional act of the
legislature: "The people have a deep and vested interest in
maintaining all the constitutional limitations upon the exercise of
legislative powers." (Allen vs. Mckeen, 1 Sum., 314.)
In State vs. Doane ([1916], 98 Kan., 435; 158 Pac., 38, 40), an original
action (mandamus) was brought by the Attorney-General of Kansas
to test the constitutionality of a statute of the state. In disposing of
the question whether or not the state may bring the action, the
Supreme Court of Kansas said:
. . . the state is a proper party indeed, the proper party to bring
this action. The state is always interested where the integrity of its
Constitution or statutes is involved.
"It has an interest in seeing that the will of the Legislature is not
disregarded, and need not, as an individual plaintiff must, show
grounds of fearing more specific injury. (State vs. Kansas City 60
Kan., 518 [57 Pac., 118])." (State vs. Lawrence, 80 Kan., 707; 103
Pac., 839.)
Where the constitutionality of a statute is in doubt the state's law
officer, its Attorney-General, or county attorney, may exercise his
bet judgment as to what sort of action he will bring to have the
matter determined, either by quo warranto to challenge its validity
(State vs. Johnson, 61 Kan., 803; 60 Pac., 1068; 49 L.R.A., 662), by
mandamus to compel obedience to its terms (State vs. Dolley, 82
Kan., 533; 108 Pac., 846), or by injunction to restrain proceedings
under its questionable provisions (State ex rel. vs. City of Neodesha,
3 Kan. App., 319; 45 Pac., 122).
Other courts have reached the same conclusion (See State vs. St.
Louis S. W. Ry. Co. [1917], 197 S. W., 1006; State vs. S.H. Kress & Co.
[1934], 155 S., 823; State vs. Walmsley [1935], 181 La., 597; 160 S.,
91; State vs. Board of County Comr's [1934], 39 Pac. [2d], 286; First
Const. Co. of Brooklyn vs. State [1917], 211 N.Y., 295; 116 N.E.,
1020; Bush vs. State {1918], 187 Ind., 339; 119 N.E., 417; State vs.
Watkins [1933], 176 La., 837; 147 S., 8, 10, 11). In the case last cited,
the Supreme Court of Luisiana said:

It is contended by counsel for Herbert Watkins that a district

attorney, being charged with the duty of enforcing the laws, has no
right to plead that a law is unconstitutional. In support of the
argument three decisions are cited, viz.: State ex rel. Hall, District
Attorney, vs. Judge of Tenth Judicial District (33 La. Ann., 1222);
State ex rel. Nicholls, Governor vs. Shakespeare, Mayor of New
Orleans (41 Ann., 156; 6 So., 592); and State ex rel., Banking Co., etc.
vs. Heard, Auditor (47 La. Ann., 1679; 18 So., 746; 47 L. R. A., 512).
These decisions do not forbid a district attorney to plead that a
statute is unconstitutional if he finds if in conflict with one which it is
his duty to enforce. In State ex rel. Hall, District Attorney, vs. Judge,
etc., the ruling was the judge should not, merely because he
believed a certain statute to be unconstitutional forbid the district
attorney to file a bill of information charging a person with a
violation of the statute. In other words, a judge should not judicially
declare a statute unconstitutional until the question of
constitutionality is tendered for decision, and unless it must be
decided in order to determine the right of a party litigant. State ex
rel. Nicholls, Governor, etc., is authority for the proposition merely
that an officer on whom a statute imposes the duty of enforcing its
provisions cannot avoid the duty upon the ground that he considers
the statute unconstitutional, and hence in enforcing the statute he is
immune from responsibility if the statute be unconstitutional. State
ex rel. Banking Co., etc., is authority for the proposition merely that
executive officers, e.g., the state auditor and state treasurer, should
not decline to perform ministerial duties imposed upon them by a
statute, on the ground that they believe the statute is
unconstitutional.
It is the duty of a district attorney to enforce the criminal laws of the
state, and, above all, to support the Constitution of the state. If, in
the performance of his duty he finds two statutes in conflict with
each other, or one which repeals another, and if, in his judgment,
one of the two statutes is unconstitutional, it is his duty to enforce
the other; and, in order to do so, he is compelled to submit to the
court, by way of a plea, that one of the statutes is unconstitutional.
If it were not so, the power of the Legislature would be free from
constitutional limitations in the enactment of criminal laws.
The respondents do not seem to doubt seriously the correctness of
the general proposition that the state may impugn the validity of its
laws. They have not cited any authority running clearly in the
opposite direction. In fact, they appear to have proceeded on the
assumption that the rule as stated is sound but that it has no
application in the present case, nor may it be invoked by the City
Fiscal in behalf of the People of the Philippines, one of the
petitioners herein, the principal reasons being that the validity
before this court, that the City Fiscal is estopped from attacking the
validity of the Act and, not authorized challenge the validity of the
Act in its application outside said city. (Additional memorandum of
respondents, October 23, 1937, pp. 8,. 10, 17 and 23.)
The mere fact that the Probation Act has been repeatedly relied
upon the past and all that time has not been attacked as
unconstitutional by the Fiscal of Manila but, on the contrary, has
been impliedly regarded by him as constitutional, is no reason for
considering the People of the Philippines estopped from nor
assailing its validity. For courts will pass upon a constitutional
questions only when presented before it in bona fide cases for
determination, and the fact that the question has not been raised
before is not a valid reason for refusing to allow it to be raised later.

The fiscal and all others are justified in relying upon the statute and
treating it as valid until it is held void by the courts in proper cases.
It remains to consider whether the determination of the
constitutionality of Act No. 4221 is necessary to the resolution of the
instant case. For, ". . . while the court will meet the question with
firmness, where its decision is indispensable, it is the part of
wisdom, and just respect for the legislature, renders it proper, to
waive it, if the case in which it arises, can be decided on other
points." (Ex parte Randolph [1833], 20 F. Cas. No. 11, 558; 2 Brock.,
447. Vide, also Hoover vs. wood [1857], 9 Ind., 286, 287.) It has been
held that the determination of a constitutional question is necessary
whenever it is essential to the decision of the case (12 C. J., p. 782,
citing Long Sault Dev. Co. vs. Kennedy [1913], 158 App. Div., 398;
143 N. Y. Supp., 454 [aff. 212 N.Y., 1: 105 N. E., 849; Ann. Cas.
1915D, 56; and app dism 242 U.S., 272]; Hesse vs. Ledesma, 7 Porto
Rico Fed., 520; Cowan vs. Doddridge, 22 Gratt [63 Va.], 458; Union
Line Co., vs. Wisconsin R. Commn., 146 Wis., 523; 129 N. W., 605), as
where the right of a party is founded solely on a statute the validity
of which is attacked. (12 C.J., p. 782, citing Central Glass Co. vs.
Niagrara F. Ins. Co., 131 La., 513; 59 S., 972; Cheney vs. Beverly, 188
Mass., 81; 74 N.E., 306). There is no doubt that the respondent Cu
Unjieng draws his privilege to probation solely from Act No. 4221
now being assailed.
Apart from the foregoing considerations, that court will also take
cognizance of the fact that the Probation Act is a new addition to
our statute books and its validity has never before been passed
upon by the courts; that may persons accused and convicted of
crime in the City of Manila have applied for probation; that some of
them are already on probation; that more people will likely take
advantage of the Probation Act in the future; and that the
respondent Mariano Cu Unjieng has been at large for a period of
about four years since his first conviction. All wait the decision of
this court on the constitutional question. Considering, therefore, the
importance which the instant case has assumed and to prevent
multiplicity of suits, strong reasons of public policy demand that the
constitutionality of Act No. 4221 be now resolved. (Yu Cong Eng vs.
Trinidad [1925], 47 Phil., 385; [1926], 271 U.S., 500; 70 Law. ed.,
1059. See 6 R.C.L., pp. 77, 78; People vs. Kennedy [1913], 207 N.Y.,
533; 101 N.E., 442, 444; Ann. Cas. 1914C, 616; Borginis vs. Falk Co.
[1911], 147 Wis., 327; 133 N.W., 209, 211; 37 L.R.A. [N.S.] 489;
Dimayuga and Fajardo vs. Fernandez [1922], 43 Phil., 304.) In Yu
Cong Eng vs. Trinidad, supra, an analogous situation confronted us.
We said: "Inasmuch as the property and personal rights of nearly
twelve thousand merchants are affected by these proceedings, and
inasmuch as Act No. 2972 is a new law not yet interpreted by the
courts, in the interest of the public welfare and for the advancement
of public policy, we have determined to overrule the defense of
want of jurisdiction in order that we may decide the main issue. We
have here an extraordinary situation which calls for a relaxation of
the general rule." Our ruling on this point was sustained by the
Supreme Court of the United States. A more binding authority in
support of the view we have taken can not be found.
We have reached the conclusion that the question of the
constitutionality of Act No. 4221 has been properly raised. Now for
the main inquiry: Is the Act unconstitutional?
Under a doctrine peculiarly American, it is the office and duty of the
judiciary to enforce the Constitution. This court, by clear implication
from the provisions of section 2, subsection 1, and section 10, of

Article VIII of the Constitution, may declare an act of the national

legislature invalid because in conflict with the fundamental lay. It
will not shirk from its sworn duty to enforce the Constitution. And, in
clear cases, it will not hesitate to give effect to the supreme law by
setting aside a statute in conflict therewith. This is of the essence of
judicial duty.
This court is not unmindful of the fundamental criteria in cases of
this nature that all reasonable doubts should be resolved in favor of
the constitutionality of a statute. An act of the legislature approved
by the executive, is presumed to be within constitutional limitations.
The responsibility of upholding the Constitution rests not on the
courts alone but on the legislature as well. "The question of the
validity of every statute is first determined by the legislative
department of the government itself." (U.S. vs. Ten Yu [1912], 24
Phil., 1, 10; Case vs. Board of Health and Heiser [1913], 24 Phil., 250,
276; U.S. vs. Joson [1913], 26 Phil., 1.) And a statute finally comes
before the courts sustained by the sanction of the executive. The
members of the Legislature and the Chief Executive have taken an
oath to support the Constitution and it must be presumed that they
have been true to this oath and that in enacting and sanctioning a
particular law they did not intend to violate the Constitution. The
courts cannot but cautiously exercise its power to overturn the
solemn declarations of two of the three grand departments of the
governments. (6 R.C.L., p. 101.) Then, there is that peculiar political
philosophy which bids the judiciary to reflect the wisdom of the
people as expressed through an elective Legislature and an elective
Chief Executive. It follows, therefore, that the courts will not set
aside a law as violative of the Constitution except in a clear case.
This is a proposition too plain to require a citation of authorities.
One of the counsel for respondents, in the course of his impassioned
argument, called attention to the fact that the President of the
Philippines had already expressed his opinion against the
constitutionality of the Probation Act, adverting that as to the
Executive the resolution of this question was a foregone conclusion.
Counsel, however, reiterated his confidence in the integrity and
independence of this court. We take notice of the fact that the
President in his message dated September 1, 1937, recommended
to the National Assembly the immediate repeal of the Probation Act
(No. 4221); that this message resulted in the approval of Bill No.
2417 of the Nationality Assembly repealing the probation Act,
subject to certain conditions therein mentioned; but that said bill
was vetoed by the President on September 13, 1937, much against
his wish, "to have stricken out from the statute books of the
Commonwealth a law . . . unfair and very likely unconstitutional." It
is sufficient to observe in this connection that, in vetoing the bill
referred to, the President exercised his constitutional prerogative.
He may express the reasons which he may deem proper for taking
such a step, but his reasons are not binding upon us in the
determination of actual controversies submitted for our
determination. Whether or not the Executive should express or in
any manner insinuate his opinion on a matter encompassed within
his broad constitutional power of veto but which happens to be at
the same time pending determination in this court is a question of
propriety for him exclusively to decide or determine. Whatever
opinion is expressed by him under these circumstances, however,
cannot sway our judgment on way or another and prevent us from
taking what in our opinion is the proper course of action to take in a
given case. It if is ever necessary for us to make any vehement
affirmance during this formative period of our political history, it is
that we are independent of the Executive no less than of the
Legislative department of our government independent in the

performance of our functions, undeterred by any consideration, free

from politics, indifferent to popularity, and unafraid of criticism in
the accomplishment of our sworn duty as we see it and as we
understand it.
The constitutionality of Act No. 4221 is challenged on three principal
grounds: (1) That said Act encroaches upon the pardoning power of
the Executive; (2) that its constitutes an undue delegation of
legislative power and (3) that it denies the equal protection of the
laws.
1. Section 21 of the Act of Congress of August 29, 1916, commonly
known as the Jones Law, in force at the time of the approval of Act
No. 4221, otherwise known as the Probation Act, vests in the
Governor-General of the Philippines "the exclusive power to grant
pardons and reprieves and remit fines and forfeitures". This power is
now vested in the President of the Philippines. (Art. VII, sec. 11,
subsec. 6.) The provisions of the Jones Law and the Constitution
differ in some respects. The adjective "exclusive" found in the Jones
Law has been omitted from the Constitution. Under the Jones Law,
as at common law, pardon could be granted any time after the
commission of the offense, either before or after conviction (Vide
Constitution of the United States, Art. II, sec. 2; In re Lontok [1922],
43 Phil., 293). The Governor-General of the Philippines was thus
empowered, like the President of the United States, to pardon a
person before the facts of the case were fully brought to light. The
framers of our Constitution thought this undesirable and, following
most of the state constitutions, provided that the pardoning power
can only be exercised "after conviction". So, too, under the new
Constitution, the pardoning power does not extend to "cases of
impeachment". This is also the rule generally followed in the United
States (Vide Constitution of the United States, Art. II, sec. 2). The
rule in England is different. There, a royal pardon can not be pleaded
in bar of an impeachment; "but," says Blackstone, "after the
impeachment has been solemnly heard and determined, it is not
understood that the king's royal grace is further restrained or
abridged." (Vide, Ex parte Wells [1856], 18 How., 307; 15 Law. ed.,
421; Com. vs. Lockwood [1872], 109 Mass., 323; 12 Am. Rep., 699;
Sterling vs. Drake [1876], 29 Ohio St., 457; 23 am. Rep., 762.) The
reason for the distinction is obvious. In England, Judgment on
impeachment is not confined to mere "removal from office and
disqualification to hold and enjoy any office of honor, trust, or profit
under the Government" (Art. IX, sec. 4, Constitution of the
Philippines) but extends to the whole punishment attached by law
to the offense committed. The House of Lords, on a conviction may,
by its sentence, inflict capital punishment, perpetual banishment,
perpetual banishment, fine or imprisonment, depending upon the
gravity of the offense committed, together with removal from office
and incapacity to hold office. (Com. vs. Lockwood, supra.) Our
Constitution also makes specific mention of "commutation" and of
the power of the executive to impose, in the pardons he may grant,
such conditions, restrictions and limitations as he may deem proper.
Amnesty may be granted by the President under the Constitution
but only with the concurrence of the National Assembly. We need
not dwell at length on the significance of these fundamental
changes. It is sufficient for our purposes to state that the pardoning
power has remained essentially the same. The question is: Has the
pardoning power of the Chief Executive under the Jones Law been
impaired by the Probation Act?
As already stated, the Jones Law vests the pardoning power
exclusively in the Chief Executive. The exercise of the power may

not, therefore, be vested in anyone else.

". . . The benign prerogative of mercy reposed in the executive
cannot be taken away nor fettered by any legislative restrictions, nor
can like power be given by the legislature to any other officer or
authority. The coordinate departments of government have nothing
to do with the pardoning power, since no person properly belonging
to one of the departments can exercise any powers appertaining to
either of the others except in cases expressly provided for by the
constitution." (20 R.C.L., pp., , and cases cited.) " . . . where the
pardoning power is conferred on the executive without express or
implied limitations, the grant is exclusive, and the legislature can
neither exercise such power itself nor delegate it elsewhere, nor
interfere with or control the proper exercise thereof, . . ." (12 C.J.,
pp. 838, 839, and cases cited.) If Act No. 4221, then, confers any
pardoning power upon the courts it is for that reason
unconstitutional and void. But does it?
In the famous Killitts decision involving an embezzlement case, the
Supreme Court of the United States ruled in 1916 that an order
indefinitely suspending sentenced was void. (Ex parte United States
[1916], 242 U.S., 27; 61 Law. ed., 129; L.R.A. 1917E, 1178; 37 Sup. Ct.
Rep., 72; Ann. Cas. 1917B, 355.) Chief Justice White, after an
exhaustive review of the authorities, expressed the opinion of the
court that under the common law the power of the court was
limited to temporary suspension and that the right to suspend
sentenced absolutely and permanently was vested in the executive
branch of the government and not in the judiciary. But, the right of
Congress to establish probation by statute was conceded. Said the
court through its Chief Justice: ". . . and so far as the future is
concerned, that is, the causing of the imposition of penalties as fixed
to be subject, by probation legislation or such other means as the
legislative mind may devise, to such judicial discretion as may be
adequate to enable courts to meet by the exercise of an enlarged
but wise discretion the infinite variations which may be presented to
them for judgment, recourse must be had Congress whose
legislative power on the subject is in the very nature of things
adequately complete." (Quoted in Riggs vs. United States [1926], 14
F. [2d], 5, 6.) This decision led the National Probation Association
and others to agitate for the enactment by Congress of a federal
probation law. Such action was finally taken on March 4, 1925 (chap.
521, 43 Stat. L. 159, U.S.C. title 18, sec. 724). This was followed by an
appropriation to defray the salaries and expenses of a certain
number of probation officers chosen by civil service. (Johnson,
Probation for Juveniles and Adults, p. 14.)
In United States vs. Murray ([1925], 275 U.S., 347; 48 Sup. Ct. Rep.,
146; 72 Law. ed., 309), the Supreme Court of the United States,
through Chief Justice Taft, held that when a person sentenced to
imprisonment by a district court has begun to serve his sentence,
that court has no power under the Probation Act of March 4, 1925
to grant him probation even though the term at which sentence was
imposed had not yet expired. In this case of Murray, the
constitutionality of the probation Act was not considered but was
assumed. The court traced the history of the Act and quoted from
the report of the Committee on the Judiciary of the United States
House of Representatives (Report No. 1377, 68th Congress, 2
Session) the following statement:
Prior to the so-called Killitts case, rendered in December, 1916, the
district courts exercised a form of probation either, by suspending
sentence or by placing the defendants under state probation officers
or volunteers. In this case, however (Ex parte United States, 242

U.S., 27; 61 L. Ed., 129; L.R.A., 1917E, 1178; 37 Sup. Ct. Rep., 72 Ann.
Cas. 1917B, 355), the Supreme Court denied the right of the district
courts to suspend sentenced. In the same opinion the court pointed
out the necessity for action by Congress if the courts were to
exercise probation powers in the future . . .
Since this decision was rendered, two attempts have been made to
enact probation legislation. In 1917, a bill was favorably reported by
the Judiciary Committee and passed the House. In 1920, the
judiciary Committee again favorably reported a probation bill to the
House, but it was never reached for definite action.
If this bill is enacted into law, it will bring the policy of the Federal
government with reference to its treatment of those convicted of
violations of its criminal laws in harmony with that of the states of
the Union. At the present time every state has a probation law, and
in all but twelve states the law applies both to adult and juvenile
offenders. (see, also, Johnson, Probation for Juveniles and Adults
[1928], Chap. I.)
The constitutionality of the federal probation law has been
sustained by inferior federal courts. In Riggs vs. United States supra,
the Circuit Court of Appeals of the Fourth Circuit said:
Since the passage of the Probation Act of March 4, 1925, the
questions under consideration have been reviewed by the Circuit
Court of Appeals of the Ninth Circuit (7 F. [2d], 590), and the
constitutionality of the act fully sustained, and the same held in no
manner to encroach upon the pardoning power of the President.
This case will be found to contain an able and comprehensive review
of the law applicable here. It arose under the act we have to
consider, and to it and the authorities cited therein special reference
is made (Nix vs. James, 7 F. [2d], 590, 594), as is also to a decision of
the Circuit Court of Appeals of the Seventh Circuit (Kriebel vs. U.S.,
10 F. [2d], 762), likewise construing the Probation Act.
We have seen that in 1916 the Supreme Court of the United States;
in plain and unequivocal language, pointed to Congress as
possessing the requisite power to enact probation laws, that a
federal probation law as actually enacted in 1925, and that the
constitutionality of the Act has been assumed by the Supreme Court
of the United States in 1928 and consistently sustained by the
inferior federal courts in a number of earlier cases.
We are fully convinced that the Philippine Legislature, like the
Congress of the United States, may legally enact a probation law
under its broad power to fix the punishment of any and all penal
offenses. This conclusion is supported by other authorities. In Ex
parte Bates ([1915], 20 N. M., 542; L.R.A. 1916A, 1285; 151 Pac.,
698, the court said: "It is clearly within the province of the
Legislature to denominate and define all classes of crime, and to
prescribe for each a minimum and maximum punishment." And in
State vs. Abbott ([1910], 87 S.C., 466; 33 L.R.A. [N. S.], 112; 70 S. E.,
6; Ann. Cas. 1912B, 1189), the court said: "The legislative power to
set punishment for crime is very broad, and in the exercise of this
power the general assembly may confer on trial judges, if it sees fit,
the largest discretion as to the sentence to be imposed, as to the
beginning and end of the punishment and whether it should be
certain or indeterminate or conditional." (Quoted in State vs. Teal
[1918], 108 S. C., 455; 95 S. E., 69.) Indeed, the Philippine Legislature
has defined all crimes and fixed the penalties for their violation.
Invariably, the legislature has demonstrated the desire to vest in the

courts particularly the trial courts large discretion in imposing

the penalties which the law prescribes in particular cases. It is
believed that justice can best be served by vesting this power in the
courts, they being in a position to best determine the penalties
which an individual convict, peculiarly circumstanced, should suffer.
Thus, while courts are not allowed to refrain from imposing a
sentence merely because, taking into consideration the degree of
malice and the injury caused by the offense, the penalty provided by
law is clearly excessive, the courts being allowed in such case to
submit to the Chief Executive, through the Department of Justice,
such statement as it may deem proper (see art. 5, Revised Penal
Code), in cases where both mitigating and aggravating
circumstances are attendant in the commission of a crime and the
law provides for a penalty composed of two indivisible penalties, the
courts may allow such circumstances to offset one another in
consideration of their number and importance, and to apply the
penalty according to the result of such compensation. (Art. 63, rule
4, Revised Penal Code; U.S. vs. Reguera and Asuategui [1921], 41
Phil., 506.) Again, article 64, paragraph 7, of the Revised Penal Code
empowers the courts to determine, within the limits of each
periods, in case the penalty prescribed by law contains three
periods, the extent of the evil produced by the crime. In the
imposition of fines, the courts are allowed to fix any amount within
the limits established by law, considering not only the mitigating and
aggravating circumstances, but more particularly the wealth or
means of the culprit. (Art. 66, Revised Penal Code.) Article 68,
paragraph 1, of the same Code provides that "a discretionary
penalty shall be imposed" upon a person under fifteen but over nine
years of age, who has not acted without discernment, but always
lower by two degrees at least than that prescribed by law for the
crime which he has committed. Article 69 of the same Code provides
that in case of "incomplete self-defense", i.e., when the crime
committed is not wholly excusable by reason of the lack of some of
the conditions required to justify the same or to exempt from
criminal liability in the several cases mentioned in article 11 and 12
of the Code, "the courts shall impose the penalty in the period which
may be deemed proper, in view of the number and nature of the
conditions of exemption present or lacking." And, in case the
commission of what are known as "impossible" crimes, "the court,
having in mind the social danger and the degree of criminality
shown by the offender," shall impose upon him either arresto mayor
or a fine ranging from 200 to 500 pesos. (Art. 59, Revised Penal
Code.)
Under our Revised Penal Code, also, one-half of the period of
preventive imprisonment is deducted form the entire term of
imprisonment, except in certain cases expressly mentioned (art. 29);
the death penalty is not imposed when the guilty person is more
than seventy years of age, or where upon appeal or revision of the
case by the Supreme Court, all the members thereof are not
unanimous in their voting as to the propriety of the imposition of
the death penalty (art. 47, see also, sec. 133, Revised Administrative
Code, as amended by Commonwealth Act No. 3); the death
sentence is not to be inflicted upon a woman within the three years
next following the date of the sentence or while she is pregnant, or
upon any person over seventy years of age (art. 83); and when a
convict shall become insane or an imbecile after final sentence has
been pronounced, or while he is serving his sentenced, the
execution of said sentence shall be suspended with regard to the
personal penalty during the period of such insanity or imbecility (art.
79).

But the desire of the legislature to relax what might result in the
undue harshness of the penal laws is more clearly demonstrated in
various other enactments, including the probation Act. There is the
Indeterminate Sentence Law enacted in 1933 as Act No. 4103 and
subsequently amended by Act No. 4225, establishing a system of
parole (secs. 5 to 100 and granting the courts large discretion in
imposing the penalties of the law. Section 1 of the law as amended
provides; "hereafter, in imposing a prison sentence for an offenses
punished by the Revised Penal Code, or its amendments, the court
shall sentence the accused to an indeterminate sentence the
maximum term of which shall be that which, in view of the attending
circumstances, could be properly imposed under the rules of the
said Code, and to a minimum which shall be within the range of the
penalty next lower to that prescribed by the Code for the offense;
and if the offense is punished by any other law, the court shall
sentence the accused to an indeterminate sentence, the maximum
term of which shall not exceed the maximum fixed by said law and
the minimum shall not be less than the minimum term prescribed by
the same." Certain classes of convicts are, by section 2 of the law,
excluded from the operation thereof. The Legislature has also
enacted the Juvenile Delinquency Law (Act No. 3203) which was
subsequently amended by Act No. 3559. Section 7 of the original Act
and section 1 of the amendatory Act have become article 80 of the
Revised Penal Code, amended by Act No. 4117 of the Philippine
Legislature and recently reamended by Commonwealth Act No. 99
of the National Assembly. In this Act is again manifested the
intention of the legislature to "humanize" the penal laws. It allows,
in effect, the modification in particular cases of the penalties
prescribed by law by permitting the suspension of the execution of
the judgment in the discretion of the trial court, after due hearing
and after investigation of the particular circumstances of the
offenses, the criminal record, if any, of the convict, and his social
history. The Legislature has in reality decreed that in certain cases
no punishment at all shall be suffered by the convict as long as the
conditions of probation are faithfully observed. It this be so, then, it
cannot be said that the Probation Act comes in conflict with the
power of the Chief Executive to grant pardons and reprieves,
because, to use the language of the Supreme Court of New Mexico,
"the element of punishment or the penalty for the commission of a
wrong, while to be declared by the courts as a judicial function
under and within the limits of law as announced by legislative acts,
concerns solely the procedure and conduct of criminal causes, with
which the executive can have nothing to do." (Ex parte Bates, supra.)
In Williams vs. State ([1926], 162 Ga., 327; 133 S.E., 843), the court
upheld the constitutionality of the Georgia probation statute against
the contention that it attempted to delegate to the courts the
pardoning power lodged by the constitution in the governor alone is
vested with the power to pardon after final sentence has been
imposed by the courts, the power of the courts to imposed any
penalty which may be from time to time prescribed by law and in
such manner as may be defined cannot be questioned."
We realize, of course, the conflict which the American cases
disclose. Some cases hold it unlawful for the legislature to vest in the
courts the power to suspend the operation of a sentenced, by
probation or otherwise, as to do so would encroach upon the
pardoning power of the executive. (In re Webb [1895], 89 Wis., 354;
27 L.R.A., 356; 46 Am. St. Rep., 846; 62 N.W., 177; 9 Am. Crim., Rep.,
702; State ex rel. Summerfield vs. Moran [1919], 43 Nev., 150; 182
Pac., 927; Ex parte Clendenning [1908], 22 Okla., 108; 1 Okla. Crim.
Rep., 227; 19 L.R.A. [N.S.], 1041; 132 Am. St. Rep., 628; 97 Pac., 650;
People vs. Barrett [1903], 202 Ill, 287; 67 N.E., 23; 63 L.R.A., 82; 95
Am. St. Rep., 230; Snodgrass vs. State [1912], 67 Tex. Crim. Rep.,

615; 41 L. R. A. [N. S.], 1144; 150 S. W., 162; Ex parte Shelor [1910],
33 Nev., 361;111 Pac., 291; Neal vs. State [1898], 104 Ga., 509; 42 L.
R. A., 190; 69 Am. St. Rep., 175; 30 S. E. 858; State ex rel. Payne vs.
Anderson [1921], 43 S. D., 630; 181 N. W., 839; People vs. Brown, 54
Mich., 15; 19 N. W., 571; States vs. Dalton [1903], 109 Tenn., 544; 72
S. W., 456.)
Other cases, however, hold contra. (Nix vs. James [1925; C. C. A.,
9th], 7 F. [2d], 590; Archer vs. Snook [1926; D. C.], 10 F. [2d], 567;
Riggs. vs. United States [1926; C. C. A. 4th], 14]) [2d], 5; Murphy vs.
States [1926], 171 Ark., 620; 286 S. W., 871; 48 A. L. R., 1189; Re
Giannini [1912], 18 Cal. App., 166; 122 Pac., 831; Re Nachnaber
[1928], 89 Cal. App., 530; 265 Pac., 392; Ex parte De Voe [1931], 114
Cal. App., 730; 300 Pac., 874; People vs. Patrick [1897], 118 Cal., 332;
50 Pac., 425; Martin vs. People [1917], 69 Colo., 60; 168 Pac., 1171;
Belden vs. Hugo [1914], 88 Conn., 50; 91 A., 369, 370, 371; Williams
vs. State [1926], 162 Ga., 327; 133 S. E., 843; People vs. Heise [1913],
257 Ill., 443; 100 N. E., 1000; Parker vs. State [1893], 135 Ind., 534;
35 N. E., 179; 23 L. R. A., 859; St. Hillarie, Petitioner [1906], 101 Me.,
522; 64 Atl., 882; People vs. Stickle [1909], 156 Mich., 557; 121 N.
W., 497; State vs. Fjolander [1914], 125 Minn., 529; State ex rel.
Bottomnly vs. District Court [1925], 73 Mont., 541; 237 Pac., 525;
State vs. Everitt [1913], 164 N. C., 399; 79 S. E., 274; 47 L. R. A. [N.
S.], 848; State ex rel. Buckley vs. Drew [1909], 75 N. H., 402; 74 Atl.,
875; State vs. Osborne [1911], 79 N. J. Eq., 430; 82 Atl. 424; Ex parte
Bates [1915], 20 N. M., 542; L. R. A., 1916 A. 1285; 151 Pac., 698;
People vs. ex rel. Forsyth vs. Court of Session [1894], 141 N. Y., 288;
23 L. R. A., 856; 36 N. E., 386; 15 Am. Crim. Rep., 675; People ex rel.
Sullivan vs. Flynn [1907], 55 Misc., 639; 106 N. Y. Supp., 928; People
vs. Goodrich [1914], 149 N. Y. Supp., 406; Moore vs. Thorn [1935],
245 App. Div., 180; 281 N. Y. Supp., 49; Re Hart [1914], 29 N. D., 38;
L. R. A., 1915C, 1169; 149 N. W., 568; Ex parte Eaton [1925], 29
Okla., Crim. Rep., 275; 233 P., 781; State vs. Teal [1918], 108 S. C.,
455; 95 S. E., 69; State vs. Abbot [1910], 87 S. C., 466; 33 L.R.A., [N.
S.], 112; 70 S. E., 6; Ann. Cas., 1912B, 1189; Fults vs. States [1854],34
Tenn., 232; Woods vs. State [1814], 130 Tenn., 100; 169 S. W., 558;
Baker vs. State [1814], 130 Tenn., 100; 169 S. W., 558; Baker vs.
State [1913],70 Tex., Crim. Rep., 618; 158 S. W., 998; Cook vs. State
[1914], 73 Tex. Crim. Rep., 548; 165 S. W., 573; King vs. State [1914],
72 Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs. State [1932], 122
Tex. Crim. Rep., 394; 162 S. W., 890; Clare vs. State [1932], 122 Tex.
Crim. Rep., 211; 54 S. W. [2d], 127; Re Hall [1927], 100 Vt., 197; 136
A., 24; Richardson vs. Com. [1921], 131 Va., 802; 109 S.E., 460; State
vs. Mallahan [1911], 65 Wash., 287; 118 Pac., 42; State ex rel.
Tingstand vs. Starwich [1922], 119 Wash., 561; 206 Pac., 29; 26 A. L.
R., 393; 396.) We elect to follow this long catena of authorities
holding that the courts may be legally authorized by the legislature
to suspend sentence by the establishment of a system of probation
however characterized. State ex rel. Tingstand vs. Starwich ([1922],
119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393), deserved particular
mention. In that case, a statute enacted in 1921 which provided for
the suspension of the execution of a sentence until otherwise
ordered by the court, and required that the convicted person be
placed under the charge of a parole or peace officer during the term
of such suspension, on such terms as the court may determine, was
held constitutional and as not giving the court a power in violation
of the constitutional provision vesting the pardoning power in the
chief executive of the state. (Vide, also, Re Giannini [1912], 18 Cal
App., 166; 122 Pac., 831.)
Probation and pardon are not coterminous; nor are they the same.
They are actually district and different from each other, both in
origin and in nature. In People ex rel. Forsyth vs. Court of Sessions

([1894], 141 N. Y., 288, 294; 36 N. E., 386, 388; 23 L. R. A., 856; 15
Am. Crim. Rep., 675), the Court of Appeals of New York said:
. . . The power to suspend sentence and the power to grant
reprieves and pardons, as understood when the constitution was
adopted, are totally distinct and different in their nature. The former
was always a part of the judicial power; the latter was always a part
of the executive power. The suspension of the sentence simply
postpones the judgment of the court temporarily or indefinitely, but
the conviction and liability following it, and the civil disabilities,
remain and become operative when judgment is rendered. A pardon
reaches both the punishment prescribed for the offense and the
guilt of the offender. It releases the punishment, and blots out of
existence the guilt, so that in the eye of the law, the offender is as
innocent as if he had never committed the offense. It removes the
penalties and disabilities, and restores him to all his civil rights. It
makes him, as it were, a new man, and gives him a new credit and
capacity. (Ex parte Garland, 71 U. S., 4 Wall., 333; 18 Law. ed., 366;
U. S. vs. Klein, 80 U. S., 13 Wall., 128; 20 Law. ed., 519; Knote vs. U.
S., 95 U. S., 149; 24 Law. ed., 442.)
The framers of the federal and the state constitutions were perfectly
familiar with the principles governing the power to grant pardons,
and it was conferred by these instruments upon the executive with
full knowledge of the law upon the subject, and the words of the
constitution were used to express the authority formerly exercised
by the English crown, or by its representatives in the colonies. (Ex
parte Wells, 59 U. S., 18 How., 307; 15 Law. ed., 421.) As this power
was understood, it did not comprehend any part of the judicial
functions to suspend sentence, and it was never intended that the
authority to grant reprieves and pardons should abrogate, or in any
degree restrict, the exercise of that power in regard to its own
judgments, that criminal courts has so long maintained. The two
powers, so distinct and different in their nature and character, were
still left separate and distinct, the one to be exercised by the
executive, and the other by the judicial department. We therefore
conclude that a statute which, in terms, authorizes courts of criminal
jurisdiction to suspend sentence in certain cases after conviction,
a power inherent in such courts at common law, which was
understood when the constitution was adopted to be an ordinary
judicial function, and which, ever since its adoption, has been
exercised of legislative power under the constitution. It does not
encroach, in any just sense, upon the powers of the executive, as
they have been understood and practiced from the earliest times.
(Quoted with approval in Directors of Prisons vs. Judge of First
Instance of Cavite [1915], 29 Phil., 265, Carson, J., concurring, at pp.
294, 295.)
In probation, the probationer is in no true sense, as in pardon, a free
man. He is not finally and completely exonerated. He is not exempt
from the entire punishment which the law inflicts. Under the
Probation Act, the probationer's case is not terminated by the mere
fact that he is placed on probation. Section 4 of the Act provides
that the probation may be definitely terminated and the probationer
finally discharged from supervision only after the period of
probation shall have been terminated and the probation officer shall
have submitted a report, and the court shall have found that the
probationer has complied with the conditions of probation. The
probationer, then, during the period of probation, remains in legal
custody subject to the control of the probation officer and of the
court; and, he may be rearrested upon the non-fulfillment of the
conditions of probation and, when rearrested, may be committed to

prison to serve the sentence originally imposed upon him. (Secs. 2,

3, 5 and 6, Act No. 4221.)
The probation described in the act is not pardon. It is not complete
liberty, and may be far from it. It is really a new mode of
punishment, to be applied by the judge in a proper case, in
substitution of the imprisonment and find prescribed by the criminal
laws. For this reason its application is as purely a judicial act as any
other sentence carrying out the law deemed applicable to the
offense. The executive act of pardon, on the contrary, is against the
criminal law, which binds and directs the judges, or rather is outside
of and above it. There is thus no conflict with the pardoning power,
and no possible unconstitutionality of the Probation Act for this
cause. (Archer vs. Snook [1926], 10 F. [2d], 567, 569.)
Probation should also be distinguished from reprieve and from
commutation of the sentence. Snodgrass vs. State ([1912], 67 Tex.
Crim. Rep., 615;41 L. R. A. [N. S.], 1144; 150 S. W., 162), is relied
upon most strongly by the petitioners as authority in support of
their contention that the power to grant pardons and reprieves,
having been vested exclusively upon the Chief Executive by the
Jones Law, may not be conferred by the legislature upon the courts
by means of probation law authorizing the indefinite judicial
suspension of sentence. We have examined that case and found that
although the Court of Criminal Appeals of Texas held that the
probation statute of the state in terms conferred on the district
courts the power to grant pardons to persons convicted of crime, it
also distinguished between suspensions sentence on the one hand,
and reprieve and commutation of sentence on the other. Said the
court, through Harper, J.:
That the power to suspend the sentence does not conflict with the
power of the Governor to grant reprieves is settled by the decisions
of the various courts; it being held that the distinction between a
"reprieve" and a suspension of sentence is that a reprieve postpones
the execution of the sentence to a day certain, whereas a
suspension is for an indefinite time. (Carnal vs. People, 1 Parker, Cr.
R., 262; In re Buchanan, 146 N. Y., 264; 40 N. E., 883), and cases
cited in 7 Words & Phrases, pp. 6115, 6116. This law cannot be hold
in conflict with the power confiding in the Governor to grant
commutations of punishment, for a commutations is not but to
change the punishment assessed to a less punishment.
In State ex rel. Bottomnly vs. District Court ([1925], 73 Mont., 541;
237 Pac., 525), the Supreme Court of Montana had under
consideration the validity of the adult probation law of the state
enacted in 1913, now found in sections 12078-12086, Revised Codes
of 1921. The court held the law valid as not impinging upon the
pardoning power of the executive. In a unanimous decision penned
by Justice Holloway, the court said:
. . . . the term "pardon", "commutation", and "respite" each had a
well understood meaning at the time our Constitution was adopted,
and no one of them was intended to comprehend the suspension of
the execution of the judgment as that phrase is employed in
sections 12078-12086. A "pardon" is an act of grace, proceeding
from the power intrusted with the execution of the laws which
exempts the individual on whom it is bestowed from the
punishment the law inflicts for a crime he has committed (United
States vs. Wilson, 7 Pet., 150; 8 Law. ed., 640); It is a remission of
guilt (State vs. Lewis, 111 La., 693; 35 So., 816), a forgiveness of the
offense (Cook vs. Middlesex County, 26 N. J. Law, 326; Ex parte

Powell, 73 Ala., 517; 49 Am. Rep., 71). "Commutation" is a remission

of a part of the punishment; a substitution of a less penalty for the
one originally imposed (Lee vs. Murphy, 22 Grat. [Va.] 789; 12 Am.
Rep., 563; Rich vs. Chamberlain, 107 Mich., 381; 65 N. W., 235). A
"reprieve" or "respite" is the withholding of the sentence for an
interval of time (4 Blackstone's Commentaries, 394), a
postponement of execution (Carnal vs. People, 1 Parker, Cr. R. [N.
Y.], 272), a temporary suspension of execution (Butler vs. State, 97
Ind., 373).
Few adjudicated cases are to be found in which the validity of a
statute similar to our section 12078 has been determined; but the
same objections have been urged against parole statutes which vest
the power to parole in persons other than those to whom the power
of pardon is granted, and these statutes have been upheld quite
uniformly, as a reference to the numerous cases cited in the notes to
Woods vs. State (130 Tenn., 100; 169 S. W.,558, reported in L. R. A.,
1915F, 531), will disclose. (See, also, 20 R. C. L., 524.)
We conclude that the Probation Act does not conflict with the
pardoning power of the Executive. The pardoning power, in respect
to those serving their probationary sentences, remains as full and
complete as if the Probation Law had never been enacted. The
President may yet pardon the probationer and thus place it beyond
the power of the court to order his rearrest and imprisonment.
(Riggs vs. United States [1926],
14 F. [2d], 5, 7.)
2. But while the Probation Law does not encroach upon the
pardoning power of the executive and is not for that reason void,
does section 11 thereof constitute, as contended, an undue
delegation of legislative power?
Under the constitutional system, the powers of government are
distributed among three coordinate 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 popular will.
Each has exclusive cognizance of the matters within its jurisdiction,
and is supreme within its own sphere.
The power to make laws the legislative power is vested in a
bicameral Legislature by the Jones Law (sec. 12) and in a unicamiral
National Assembly by the Constitution (Act. VI, sec. 1, Constitution
of the Philippines). 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. (5 Encyc. of the Social Sciences, p. 66.) The
classic statement of the rule is that of Locke, namely: "The legislative
neither must nor can transfer the power of making laws to anybody
else, or place it anywhere but where the people have." (Locke on
Civil Government, sec. 142.) Judge Cooley enunciates the doctrine in
the following oft-quoted language: "One of the settled maxims in
constitutional law is, that the power conferred upon the legislature

to make laws cannot be delegated by that department to any other

body or authority. Where the sovereign power of the state has
located the authority, there it must remain; and by the
constitutional agency alone the laws must be made until the
Constitution itself is charged. The power to whose judgment,
wisdom, and patriotism this high prerogative has been intrusted
cannot relieve itself of the responsibilities by choosing other
agencies upon which the power shall be devolved, nor can it
substitute the judgment, wisdom, and patriotism of any other body
for those to which alone the people have seen fit to confide this
sovereign trust." (Cooley on Constitutional Limitations, 8th ed., Vol.
I, p. 224. Quoted with approval in U. S. vs. Barrias [1908], 11 Phil.,
327.) This court posits the doctrine "on the ethical principle that
such a delegated power constitutes not only a right but a duty to be
performed by the delegate by the instrumentality of his own
judgment acting immediately upon the matter of legislation and not
through the intervening mind of another. (U. S. vs. Barrias, supra, at
p. 330.)
The rule, however, which forbids the delegation of legislative power
is not absolute and inflexible. It admits of exceptions. An exceptions
sanctioned by immemorial practice permits the central legislative
body to delegate legislative powers to local authorities. (Rubi vs.
Provincial Board of Mindoro [1919], 39 Phil., 660; U. S. vs. Salaveria
[1918], 39 Phil., 102; Stoutenburgh vs. Hennick [1889], 129 U. S.,
141; 32 Law. ed., 637; 9 Sup. Ct. Rep., 256; State vs. Noyes [1855],
30 N. H., 279.) "It is a cardinal principle of our system of
government, that local affairs shall be managed by local authorities,
and general affairs by the central authorities; and hence while the
rule is also fundamental that the power to make laws cannot be
delegated, the creation of the municipalities exercising local self
government has never been held to trench upon that rule. Such
legislation is not regarded as a transfer of general legislative power,
but rather as the grant of the authority to prescribed local
regulations, according to immemorial practice, subject of course to
the interposition of the superior in cases of necessity."
(Stoutenburgh vs. Hennick, supra.) On quite the same principle,
Congress is powered to delegate legislative power to such agencies
in the territories of the United States as it may select. A territory
stands in the same relation to Congress as a municipality or city to
the state government. (United States vs. Heinszen [1907], 206 U. S.,
370; 27 Sup. Ct. Rep., 742; 51 L. ed., 1098; 11 Ann. Cas., 688; Dorr vs.
United States [1904], 195 U.S., 138; 24 Sup. Ct. Rep., 808; 49 Law.
ed., 128; 1 Ann. Cas., 697.) Courts have also sustained the delegation
of legislative power to the people at large. Some authorities
maintain that this may not be done (12 C. J., pp. 841, 842; 6 R. C. L.,
p. 164, citing People vs. Kennedy [1913], 207 N. Y., 533; 101 N. E.,
442; Ann. Cas., 1914C, 616). However, the question of whether or
not a state has ceased to be republican in form because of its
adoption of the initiative and referendum has been held not to be a
judicial but a political question (Pacific States Tel. & Tel. Co. vs.
Oregon [1912], 223 U. S., 118; 56 Law. ed., 377; 32 Sup. Cet. Rep.,
224), and as the constitutionality of such laws has been looked upon
with favor by certain progressive courts, the sting of the decisions of
the more conservative courts has been pretty well drawn. (Opinions
of the Justices [1894], 160 Mass., 586; 36 N. E., 488; 23 L. R. A., 113;
Kiernan vs. Portland [1910], 57 Ore., 454; 111 Pac., 379; 1132 Pac.,
402; 37 L. R. A. [N. S.], 332; Pacific States Tel. & Tel. Co. vs. Oregon,
supra.) 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."

And section 16 of the same article of the Constitution provides that
"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 prescribed, to promulgate rules and
regulations to carry out a declared national policy." It is beyond the
scope of this decision to determine whether or not, in the absence
of the foregoing constitutional provisions, the President could be
authorized to exercise the powers thereby vested in him. Upon the
other hand, whatever doubt may have existed has been removed by
the Constitution itself.
The case before us does not fall under any of the exceptions
hereinabove mentioned.
The challenged section of Act No. 4221 in section 11 which reads as
follows:
This Act shall apply only in those provinces in which the respective
provincial boards have provided for the salary of a probation officer
at rates not lower than those now provided for provincial fiscals.
Said probation officer shall be appointed by the Secretary of Justice
and shall be subject to the direction of the Probation Office.
(Emphasis ours.)
In testing whether a statute constitute 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 was left to the judgment of any other
appointee or delegate of the legislature. (6 R. C. L., p. 165.) In the
United States vs. Ang Tang Ho ([1922], 43 Phil., 1), this court
adhered to the foregoing rule when it held an act of the legislature
void in so far as it undertook to authorize the Governor-General, in
his discretion, to issue a proclamation fixing the price of rice and to
make the sale of it in violation of the proclamation a crime. (See and
cf. Compaia General de Tabacos vs. Board of Public Utility
Commissioners [1916], 34 Phil., 136.) 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. (6 R.
C. L., pp. 177-179.)
For the purpose of Probation Act, the provincial boards may be
regarded as administrative bodies endowed with power to
determine when the Act should take effect in their respective
provinces. They are the agents or delegates of the legislature in this
respect. The rules governing delegation of legislative power to
administrative and executive officers are applicable or are at least
indicative of the rule which should be here adopted. An examination
of a variety of cases on delegation of power to administrative bodies
will show that the ratio decidendi is at variance but, it can be broadly
asserted that the rationale revolves around the presence or absence
of a standard or rule of action or the sufficiency thereof in the
statute, to aid the delegate in exercising the granted discretion. In
some cases, it is held that the standard is sufficient; in others that is
insufficient; and in still others that it is entirely lacking. As a rule, an
act of the legislature is incomplete and hence invalid if it does not
lay down any rule or definite standard by which the administrative
officer or board may be guided in the exercise of the discretionary
powers delegated to it. (See Schecter vs. United States [1925], 295
U. S., 495; 79 L. ed., 1570; 55 Sup. Ct. Rep., 837; 97 A.L.R., 947;
People ex rel. Rice vs. Wilson Oil Co. [1936], 364 Ill., 406; 4 N. E. [2d],

847; 107 A.L.R., 1500 and cases cited. See also R. C. L., title
"Constitutional Law", sec 174.) In the case at bar, what rules are to
guide the provincial boards in the exercise of their discretionary
power to determine whether or not the Probation Act shall apply in
their respective provinces? What standards are fixed by the Act? We
do not find any and none has been pointed to us by the
respondents. 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, if we may use the language of Justice Cardozo in the recent
case of Schecter, supra, is a "roving commission" which enables the
provincial boards to exercise arbitrary discretion. By section 11 if the
Act, the legislature does not 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. In other words, the provincial boards of the various
provinces are to determine for themselves, whether the Probation
Law shall apply to their provinces or not at all. The applicability and
application of the Probation Act are entirely placed in the hands of
the provincial boards. If the 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.
The plain language of the Act is not susceptible of any other
interpretation. This, to our minds, is a virtual surrender of legislative
power to the provincial boards.
"The true distinction", says Judge Ranney, "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
County Comrs. [1852]; 1 Ohio St., 77, 88. See also, Sutherland on
Statutory Construction, sec 68.) To the same effect are the decision
of this court in Municipality of Cardona vs. Municipality of
Binangonan ([1917], 36 Phil., 547); Rubi vs. Provincial Board of
Mindoro ([1919],39 Phil., 660) and Cruz vs. Youngberg ([1931], 56
Phil., 234). In the first of these cases, this court sustained the validity
of the law conferring upon the Governor-General authority to adjust
provincial and municipal boundaries. In the second case, this court
held it lawful for the legislature to direct non-Christian inhabitants
to take up their habitation on unoccupied lands to be selected by
the provincial governor and approved by the provincial board. In the
third case, it was held proper for the legislature to vest in the
Governor-General authority to suspend or not, at his discretion, the
prohibition of the importation of the foreign cattle, such prohibition
to be raised "if the conditions of the country make this advisable or
if deceased among foreign cattle has ceased to be a menace to the
agriculture and livestock of the lands."
It should be observed that in the case at bar we are not concerned
with the simple transference of details of execution or the
promulgation by executive or administrative officials of rules and
regulations to carry into effect the provisions of a law. If we were,
recurrence to our own decisions would be sufficient. (U. S. vs.
Barrias [1908], 11 Phil., 327; U.S. vs. Molina [1914], 29 Phil., 119;
Alegre vs. Collector of Customs [1929], 53 Phil., 394; Cebu Autobus
Co. vs. De Jesus [1931], 56 Phil., 446; U. S. vs. Gomez [1915], 31 Phil.,
218; Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660.)
It is connected, however, that a legislative act may be made to the
effect as law after it leaves the hands of the legislature. It is true that

laws may be made effective on certain contingencies, as by

proclamation of the executive or the adoption by the people of a
particular community (6 R. C. L., 116, 170-172; Cooley,
Constitutional Limitations, 8th ed., Vol. I, p. 227). In Wayman vs.
Southard ([1825], 10 Wheat. 1; 6 Law. ed., 253), the Supreme Court
of the United State ruled that the legislature may delegate a power
not legislative which it may itself rightfully exercise.(Vide, also,
Dowling vs. Lancashire Ins. Co. [1896], 92 Wis., 63; 65 N. W., 738; 31
L. R. A., 112.) The power to ascertain facts is such a power which
may be delegated. There is nothing essentially legislative in
ascertaining the existence of facts or conditions as the basis of the
taking into effect of a law. That is a mental process common to all
branches of the government. (Dowling vs. Lancashire Ins. Co., supra;
In re Village of North Milwaukee [1896], 93 Wis., 616; 97 N.W.,
1033; 33 L.R.A., 938; Nash vs. Fries [1906], 129 Wis., 120; 108 N.W.,
210; Field vs. Clark [1892], 143 U.S., 649; 12 Sup. Ct., 495; 36 Law.
ed., 294.) Notwithstanding the apparent tendency, however, to relax
the rule prohibiting delegation of legislative authority on account of
the complexity arising from social and economic forces at work in
this modern industrial age (Pfiffner, Public Administration [1936] ch.
XX; Laski, "The Mother of Parliaments", foreign Affairs, July, 1931,
Vol. IX, No. 4, pp. 569-579; Beard, "Squirt-Gun Politics", in Harper's
Monthly Magazine, July, 1930, Vol. CLXI, pp. 147, 152), the orthodox
pronouncement of Judge Cooley in his work on Constitutional
Limitations finds restatement in Prof. Willoughby's treatise on the
Constitution of the United States in the following language
speaking of declaration of legislative power to administrative
agencies: "The principle which permits the legislature to provide
that the administrative agent may determine when the
circumstances are such as require the application of a law is
defended upon the ground that at the time this authority is granted,
the rule of public policy, which is the essence of the legislative act, is
determined by the legislature. In other words, the legislature, as it
its duty to do, determines that, under given circumstances, certain
executive or administrative action is to be taken, and that, under
other circumstances, different of no action at all is to be taken. What
is thus left to the administrative official is not the legislative
determination of what public policy demands, but simply the
ascertainment of what the facts of the case require to be done
according to the terms of the law by which he is governed."
(Willoughby on the Constitution of the United States, 2nd ed., Vol. II,
p. 1637.) In Miller vs. Mayer, etc., of New York [1883], 109 U.S., 3
Sup. Ct. Rep., 228; 27 Law. ed., 971, 974), it was said: "The efficiency
of an Act as a declaration of legislative will must, of course, come
from Congress, but the ascertainment of the contingency upon
which the Act shall take effect may be left to such agencies as it may
designate." (See, also, 12 C.J., p. 864; State vs. Parker [1854], 26 Vt.,
357; Blanding vs. Burr [1859], 13 Cal., 343, 258.) The legislature,
then may provide that a contingencies leaving to some other person
or body the power to determine when the specified contingencies
has arisen. But, in the case at bar, the legislature has not made the
operation of the Prohibition Act contingent upon specified facts or
conditions to be ascertained by the provincial board. It leaves, as we
have already said, the entire operation or non-operation of the law
upon the provincial board. the discretion vested is arbitrary because
it is absolute and unlimited. A provincial board need not investigate
conditions or find any fact, or await the happening of any specified
contingency. It is bound by no rule, limited by no principle of
expendiency announced by the legislature. It may take into
consideration certain facts or conditions; and, again, it may not. It
may have any purpose or no purpose at all. It need not give any
reason whatsoever for refusing or failing to appropriate any funds
for the salary of a probation officer. This is a matter which rest

entirely at its pleasure. The fact that at some future time we

cannot say when the provincial boards may appropriate funds for
the salaries of probation officers and thus put the law into operation
in the various provinces will not save the statute. The time of its
taking into effect, we reiterate, would yet be based solely upon the
will of the provincial boards and not upon the happening of a certain
specified contingency, or upon the ascertainment of certain facts or
conditions by a person or body other than legislature itself.
The various provincial boards are, in practical effect, endowed with
the power of suspending the operation of the Probation Law in their
respective provinces. In some jurisdiction, constitutions provided
that laws may be suspended only by the legislature or by its
authority. Thus, section 28, article I of the Constitution of Texas
provides that "No power of suspending laws in this state shall be
exercised except by the legislature"; and section 26, article I of the
Constitution of Indiana provides "That the operation of the laws
shall never be suspended, except by authority of the General
Assembly." Yet, even provisions of this sort do not confer absolute
power of suspension upon the legislature. While it may be
undoubted that the legislature may suspend a law, or the execution
or operation of a law, a law may not be suspended as to certain
individuals only, leaving the law to be enjoyed by others. The
suspension must be general, and cannot be made for individual
cases or for particular localities. In Holden vs. James ([1814], 11
Mass., 396; 6 Am. Dec., 174, 177, 178), it was said:
By the twentieth article of the declaration of rights in the
constitution of this commonwealth, it is declared that the power of
suspending the laws, or the execution of the laws, ought never to be
exercised but by the legislature, or by authority derived from it, to
be exercised in such particular cases only as the legislature shall
expressly provide for. Many of the articles in that declaration of
rights were adopted from the Magna Charta of England, and from
the bill of rights passed in the reign of William and Mary. The bill of
rights contains an enumeration of the oppressive acts of James II,
tending to subvert and extirpate the protestant religion, and the
laws and liberties of the kingdom; and the first of them is the
assuming and exercising a power of dispensing with and suspending
the laws, and the execution of the laws without consent of
parliament. The first article in the claim or declaration of rights
contained in the statute is, that the exercise of such power, by legal
authority without consent of parliament, is illegal. In the tenth
section of the same statute it is further declared and enacted, that
"No dispensation by non obstante of or to any statute, or part
thereof, should be allowed; but the same should be held void and of
no effect, except a dispensation be allowed of in such statute."
There is an implied reservation of authority in the parliament to
exercise the power here mentioned; because, according to the
theory of the English Constitution, "that absolute despotic power,
which must in all governments reside somewhere," is intrusted to
the parliament: 1 Bl. Com., 160.
The principles of our government are widely different in this
particular. Here the sovereign and absolute power resides in the
people; and the legislature can only exercise what is delegated to
them according to the constitution. It is obvious that the exercise of
the power in question would be equally oppressive to the subject,
and subversive of his right to protection, "according to standing
laws," whether exercised by one man or by a number of men. It
cannot be supposed that the people when adopting this general
principle from the English bill of rights and inserting it in our

constitution, intended to bestow by implication on the general court

one of the most odious and oppressive prerogatives of the ancient
kings of England. It is manifestly contrary to the first principles of
civil liberty and natural justice, and to the spirit of our constitution
and laws, that any one citizen should enjoy privileges and
advantages which are denied to all others under like circumstances;
or that ant one should be subject to losses, damages, suits, or
actions from which all others under like circumstances are
exempted.
To illustrate the principle: A section of a statute relative to dogs
made the owner of any dog liable to the owner of domestic animals
wounded by it for the damages without proving a knowledge of it
vicious disposition. By a provision of the act, power was given to the
board of supervisors to determine whether or not during the current
year their county should be governed by the provisions of the act of
which that section constituted a part. It was held that the legislature
could not confer that power. The court observed that it could no
more confer such a power than to authorize the board of
supervisors of a county to abolish in such county the days of grace
on commercial paper, or to suspend the statute of limitations.
(Slinger vs. Henneman [1875], 38 Wis., 504.) A similar statute in
Missouri was held void for the same reason in State vs. Field ([1853,
17 Mo., 529;59 Am. Dec., 275.) In that case a general statute
formulating a road system contained a provision that "if the county
court of any county should be of opinion that the provisions of the
act should not be enforced, they might, in their discretion, suspend
the operation of the same for any specified length of time, and
thereupon the act should become inoperative in such county for the
period specified in such order; and thereupon order the roads to be
opened and kept in good repair, under the laws theretofore in
force." Said the court: ". . . this act, by its own provisions, repeals the
inconsistent provisions of a former act, and yet it is left to the
county court to say which act shall be enforce in their county. The
act does not submit the question to the county court as an original
question, to be decided by that tribunal, whether the act shall
commence its operation within the county; but it became by its own
terms a law in every county not excepted by name in the act. It did
not, then, require the county court to do any act in order to give it
effect. But being the law in the county, and having by its provisions
superseded and abrogated the inconsistent provisions of previous
laws, the county court is . . . empowered, to suspend this act and
revive the repealed provisions of the former act. When the question
is before the county court for that tribunal to determine which law
shall be in force, it is urge before us that the power then to be
exercised by the court is strictly legislative power, which under our
constitution, cannot be delegated to that tribunal or to any other
body of men in the state. In the present case, the question is not
presented in the abstract; for the county court of Saline county,
after the act had been for several months in force in that county, did
by order suspend its operation; and during that suspension the
offense was committed which is the subject of the present
indictment . . . ." (See Mitchell vs. State [1901], 134 Ala., 392; 32 S.,
687.)
True, the legislature may enact laws for a particular locality different
from those applicable to other localities and, while recognizing the
force of the principle hereinabove expressed, courts in may
jurisdiction have sustained the constitutionality of the submission of
option laws to the vote of the people. (6 R.C.L., p. 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. "They relate to subjects which, like

the retailing of intoxicating drinks, or the running at large of cattle in

the highways, may be differently regarded in different localities, and
they are sustained on what seems to us the impregnable ground,
that the subject, though not embraced within the ordinary powers
of municipalities to make by-laws and ordinances, is nevertheless
within the class of public regulations, in respect to which it is proper
that the local judgment should control." (Cooley on Constitutional
Limitations, 5th ed., p. 148.) So that, while we do not deny the right
of local 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, we believe that in
matters of general 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. True, the statute does not
expressly state that the provincial boards may suspend the
operation of the Probation Act in particular provinces but,
considering that, in being vested with the authority to appropriate
or not the necessary funds for the salaries of probation officers, they
thereby are given absolute discretion to determine whether or not
the law should take effect or operate in their respective provinces,
the provincial boards are in reality empowered by the legislature to
suspend the operation of the Probation Act in particular provinces,
the Act to be held in abeyance until the provincial boards should
decide otherwise by appropriating the necessary funds. The validity
of a law is not tested by what has been done but by what may be
done under its provisions. (Walter E. Olsen & Co. vs. Aldanese and
Trinidad [1922], 43 Phil., 259; 12 C. J., p. 786.)
It in conceded that a great deal of latitude should be granted to the
legislature not only in the expression of what may be termed
legislative policy but in the elaboration and execution thereof.
"Without this power, legislation would become oppressive and yet
imbecile." (People vs. Reynolds, 5 Gilman, 1.) It has been said that
popular government lives because of the inexhaustible reservoir of
power behind it. It is unquestionable that the mass of powers of
government is vested in the representatives of the people and that
these representatives are no further restrained under our system
than by the express language of the instrument imposing the
restraint, or by particular provisions which by clear intendment,
have that effect. (Angara vs. Electoral Commission [1936], 35 Off.
Ga., 23; Schneckenburger vs. Moran [1936], 35 Off. Gaz., 1317.) But,
it should be borne in mind that a constitution is both a grant and a
limitation of power and one of these time-honored limitations is
that, subject to certain exceptions, legislative power shall not be
delegated.
We conclude that section 11 of Act No. 4221 constitutes an
improper and unlawful delegation of legislative authority to the
provincial boards and is, for this reason, unconstitutional and void.
3. It is also contended that the Probation Act violates the provisions
of our Bill of Rights which prohibits the denial to any person of the
equal protection of the laws (Act. III, sec. 1 subsec. 1. Constitution of
the Philippines.)
This basic individual right sheltered by the Constitution is a restraint
on all the tree grand departments of our government and on the
subordinate instrumentalities and subdivision thereof, and on many
constitutional power, like the police power, taxation and eminent
domain. The equal protection of laws, sententiously observes the
Supreme Court of the United States, "is a pledge of the protection of

equal laws." (Yick Wo vs. Hopkins [1886], 118 U. S., 356; 30 Law. ed.,
220; 6 Sup. Ct. Rep., 10464; Perley vs. North Carolina, 249 U. S., 510;
39 Sup. Ct. Rep., 357; 63 Law. ed., 735.) Of course, what may be
regarded as a denial of the equal protection of the laws in a question
not always easily determined. No rule that will cover every case can
be formulated. (Connolly vs. Union Sewer Pipe Co. [1902], 184, U. S.,
540; 22 Sup. Ct., Rep., 431; 46 Law. ed., 679.) Class legislation
discriminating against some and favoring others in prohibited. But
classification on a reasonable basis, and nor made arbitrarily or
capriciously, is permitted. (Finely vs. California [1911], 222 U. S., 28;
56 Law. ed., 75; 32 Sup. Ct. Rep., 13; Gulf. C. & S. F. Ry Co. vs. Ellis
[1897], 165 U. S., 150; 41 Law. ed., 666; 17 Sup. Ct. Rep., 255; Smith,
Bell & Co. vs. Natividad [1919], 40 Phil., 136.) The classification,
however, to be reasonable must be based on substantial distinctions
which make real differences; it must be germane to the purposes of
the law; it must not be limited to existing conditions only, and must
apply equally to each member of the class. (Borgnis vs. Falk. Co.
[1911], 147 Wis., 327, 353; 133 N. W., 209; 3 N. C. C. A., 649; 37 L. R.
A. [N. S.], 489; State vs. Cooley, 56 Minn., 540; 530-552; 58 N. W.,
150; Lindsley vs. Natural Carbonic Gas Co.[1911], 220 U. S., 61, 79,
55 Law. ed., 369, 377; 31 Sup. Ct. Rep., 337; Ann. Cas., 1912C, 160;
Lake Shore & M. S. R. Co. vs. Clough [1917], 242 U.S., 375; 37 Sup.
Ct. Rep., 144; 61 Law. ed., 374; Southern Ry. Co. vs. Greene [1910],
216 U. S., 400; 30 Sup. Ct. Rep., 287; 54 Law. ed., 536; 17 Ann. Cas.,
1247; Truax vs. Corrigan [1921], 257 U. S., 312; 12 C. J., pp. 1148,
1149.)
In the case at bar, however, the resultant inequality may be said to
flow from the unwarranted delegation of legislative power, although
perhaps this is not necessarily the result in every case. Adopting the
example given by one of the counsel for the petitioners in the course
of his oral argument, one province may appropriate the necessary
fund to defray the salary of a probation officer, while another
province may refuse or fail to do so. In such a case, the Probation
Act would be in operation in the former province but not in the
latter. This means that a person otherwise coming within the
purview of the law would be liable to enjoy the benefits of probation
in one province while another person similarly situated in another
province would be denied those same benefits. This is obnoxious
discrimination. Contrariwise, it is also possible for all the provincial
boards to appropriate the necessary funds for the salaries of the
probation officers in their respective provinces, in which case no
inequality would result for the obvious reason that probation would
be in operation in each and every province by the affirmative action
of appropriation by all the provincial boards. On that hypothesis,
every person coming within the purview of the Probation Act would
be entitled to avail of the benefits of the Act. Neither will there be
any resulting inequality if no province, through its provincial board,
should appropriate any amount for the salary of the probation
officer which is the situation now and, also, if we accept the
contention that, for the purpose of the Probation Act, the City of
Manila should be considered as a province and that the municipal
board of said city has not made any appropriation for the salary of
the probation officer. These different situations suggested show,
indeed, that while inequality may result in the application of the law
and in the conferment of the benefits therein provided, inequality is
not in all cases the necessary result. But whatever may be the case,
it is clear that in section 11 of the Probation Act creates a situation
in which discrimination and inequality are permitted or allowed.
There are, to be sure, abundant authorities requiring actual denial of
the equal protection of the law before court should assume the task
of setting aside a law vulnerable on that score, but premises and
circumstances considered, we are of the opinion that section 11 of

Act No. 4221 permits of the denial of the equal protection of the law
and is on that account bad. We see no difference between a law
which permits of such denial. A law may appear to be fair on its face
and impartial in appearance, yet, if it permits of unjust and illegal
discrimination, it is within the constitutional prohibitions. (By
analogy, Chy Lung vs. Freeman [1876], 292 U. S., 275; 23 Law. ed.,
550; Henderson vs. Mayor [1876], 92 U. S., 259; 23 Law. ed., 543; Ex
parte Virginia [1880], 100 U. S., 339; 25 Law. ed., 676; Neal vs.
Delaware [1881], 103 U. S., 370; 26 Law. ed., 567; Soon Hing vs.
Crowley [1885], 113 U. S., 703; 28 Law. ed., 1145, Yick Wo vs.
Hopkins [1886],118 U. S., 356; 30 Law. ed., 220; Williams vs.
Mississippi [1897], 170 U. S., 218; 18 Sup. Ct. Rep., 583; 42 Law. ed.,
1012; Bailey vs. Alabama [1911], 219 U. S., 219; 31 Sup. Ct. Rep. 145;
55 Law. ed., Sunday Lake Iron Co. vs. Wakefield [1918], 247 U. S.,
450; 38 Sup. Ct. Rep., 495; 62 Law. ed., 1154.) In other words,
statutes may be adjudged unconstitutional because of their effect in
operation (General Oil Co. vs. Clain [1907], 209 U. S., 211; 28 Sup. Ct.
Rep., 475; 52 Law. ed., 754; State vs. Clement Nat. Bank [1911], 84
Vt., 167; 78 Atl., 944; Ann. Cas., 1912D, 22). If the law has the effect
of denying the equal protection of the law it is unconstitutional. (6 R.
C. L. p. 372; Civil Rights Cases, 109 U. S., 3; 3 Sup. Ct. Rep., 18; 27
Law. ed., 835; Yick Wo vs. Hopkins, supra; State vs. Montgomery, 94
Me., 192; 47 Atl., 165; 80 A. S. R., 386; State vs. Dering, 84 Wis., 585;
54 N. W., 1104; 36 A. S. R., 948; 19 L. R. A., 858.) Under section 11 of
the Probation Act, not only may said Act be in force in one or several
provinces and not be in force in other provinces, but one province
may appropriate for the salary of the probation officer of a given
year and have probation during that year and thereafter
decline to make further appropriation, and have no probation is
subsequent years. While this situation goes rather to the abuse of
discretion which delegation implies, it is here indicated to show that
the Probation Act sanctions a situation which is intolerable in a
government of laws, and to prove how easy it is, under the Act, to
make the guaranty of the equality clause but "a rope of sand".
(Brewer, J. Gulf C. & S. F. Ry. Co. vs. Ellis [1897], 165 U. S., 150 154;
41 Law. ed., 666; 17 Sup. Ct. Rep., 255.)lawph!1.net
Great reliance is placed by counsel for the respondents on the case
of Ocampo vs. United States ([1914], 234 U. S., 91; 58 Law. ed.,
1231). In that case, the Supreme Court of the United States affirmed
the decision of this court (18 Phil., 1) by declining to uphold the
contention that there was a denial of the equal protection of the
laws because, as held in Missouri vs. Lewis (Bowman vs. Lewis)
decided in 1880 (101 U. S., 220; 25 Law. ed., 991), the guaranty of
the equality clause does not require territorial uniformity. It should
be observed, however, that this case concerns the right to
preliminary investigations in criminal cases originally granted by
General Orders No. 58. No question of legislative authority was
involved and the alleged denial of the equal protection of the laws
was the result of the subsequent enactment of Act No. 612,
amending the charter of the City of Manila (Act No. 813) and
providing in section 2 thereof that "in cases triable only in the court
of first instance of the City of Manila, the defendant . . . shall not be
entitled as of right to a preliminary examination in any case where
the prosecuting attorney, after a due investigation of the facts . . .
shall have presented an information against him in proper form . . .
." Upon the other hand, an analysis of the arguments and the
decision indicates that the investigation by the prosecuting attorney
although not in the form had in the provinces was considered a
reasonable substitute for the City of Manila, considering the peculiar
conditions of the city as found and taken into account by the
legislature itself.

Reliance is also placed on the case of Missouri vs. Lewis, supra. That
case has reference to a situation where the constitution of Missouri
permits appeals to the Supreme Court of the state from final
judgments of any circuit court, except those in certain counties for
which counties the constitution establishes a separate court of
appeals called St. Louis Court of Appeals. The provision complained
of, then, is found in the constitution itself and it is the constitution
that makes the apportionment of territorial jurisdiction.
We are of the opinion that section 11 of the Probation Act is
unconstitutional and void because it is also repugnant to equalprotection clause of our Constitution.
Section 11 of the Probation Act being unconstitutional and void for
the reasons already stated, the next inquiry is whether or not the
entire Act should be avoided.
In seeking the legislative intent, the presumption is against any
mutilation of a statute, and the courts will resort to elimination only
where an unconstitutional provision is interjected into a statute
otherwise valid, and is so independent and separable that its
removal will leave the constitutional features and purposes of the
act substantially unaffected by the process. (Riccio vs. Hoboken, 69
N. J. Law., 649, 662; 63 L. R. A., 485; 55 Atl., 1109, quoted in Williams
vs. Standard Oil Co. [1929], 278 U.S., 235, 240; 73 Law. ed., 287, 309;
49 Sup. Ct. Rep., 115; 60 A. L. R., 596.) In Barrameda vs. Moir
([1913], 25 Phil., 44, 47), this court stated the well-established rule
concerning partial invalidity of statutes in the following language:
. . . where part of the a statute is void, as repugnant to the Organic
Law, while another part is valid, the valid portion, if separable from
the valid, may stand and be enforced. But in order to do this, the
valid portion must be in so far independent of the invalid portion
that it is fair to presume that the Legislative would have enacted it
by itself if they had supposed that they could not constitutionally
enact the other. (Mutual Loan Co. vs. Martell, 200 Mass., 482; 86 N.
E., 916; 128 A. S. R., 446; Supervisors of Holmes Co. vs. Black Creek
Drainage District, 99 Miss., 739; 55 Sou., 963.) Enough must remain
to make a complete, intelligible, and valid statute, which carries out
the legislative intent. (Pearson vs. Bass. 132 Ga., 117; 63 S. E., 798.)
The void provisions must be eliminated without causing results
affecting the main purpose of the Act, in a manner contrary to the
intention of the Legislature. (State vs. A. C. L. R., Co., 56 Fla., 617,
642; 47 Sou., 969; Harper vs. Galloway, 58 Fla., 255; 51 Sou., 226; 26
L. R. A., N. S., 794; Connolly vs. Union Sewer Pipe Co., 184 U. S., 540,
565; People vs. Strassheim, 240 Ill., 279, 300; 88 N. E., 821; 22 L. R.
A., N. S., 1135; State vs. Cognevich, 124 La., 414; 50 Sou., 439.) The
language used in the invalid part of a statute can have no legal force
or efficacy for any purpose whatever, and what remains must
express the legislative will, independently of the void part, since the
court has no power to legislate. (State vs. Junkin, 85 Neb., 1; 122 N.
W., 473; 23 L. R. A., N. S., 839; Vide, also,. U. S., vs. Rodriguez [1918],
38 Phil., 759; Pollock vs. Farmers' Loan and Trust Co. [1895], 158 U.
S., 601, 635; 39 Law. ed., 1108, 1125; 15 Sup. Ct. Rep., 912; 6 R.C.L.,
121.)
It is contended that even if section 11, which makes the Probation
Act applicable only in those provinces in which the respective
provincial boards provided for the salaries of probation officers were
inoperative on constitutional grounds, the remainder of the Act
would still be valid and may be enforced. We should be inclined to
accept the suggestions but for the fact that said section is, in our

opinion, is inseparably linked with the other portions of the Act that
with the elimination of the section what would be left is the bare
idealism of the system, devoid of any practical benefit to a large
number of people who may be deserving of the intended beneficial
result of that system. The clear policy of the law, as may be gleaned
from a careful examination of the whole context, is to make the
application of the system dependent entirely upon the affirmative
action of the different provincial boards through appropriation of
the salaries for probation officers at rates not lower than those
provided for provincial fiscals. Without such action on the part of
the various boards, no probation officers would be appointed by the
Secretary of Justice to act in the provinces. The Philippines is divided
or subdivided into provinces and it needs no argument to show that
if not one of the provinces and this is the actual situation now
appropriate the necessary fund for the salary of a probation officer,
probation under Act No. 4221 would be illusory. There can be no
probation without a probation officer. Neither can there be a
probation officer without the probation system.
Section 2 of the Acts provides that the probation officer shall
supervise and visit the probationer. Every probation officer is given,
as to the person placed in probation under his care, the powers of
the police officer. It is the duty of the probation officer to see that
the conditions which are imposed by the court upon the probationer
under his care are complied with. Among those conditions, the
following are enumerated in section 3 of the Act:
That the probationer (a) shall indulge in no injurious or vicious
habits;
(b) Shall avoid places or persons of disreputable or harmful
character;
(c) Shall report to the probation officer as directed by the court or
probation officers;
(d) Shall permit the probation officer to visit him at reasonable times
at his place of abode or elsewhere;
(e) Shall truthfully answer any reasonable inquiries on the part of
the probation officer concerning his conduct or condition; "(f) Shall
endeavor to be employed regularly; "(g) Shall remain or reside
within a specified place or locality;
(f) Shall make reparation or restitution to the aggrieved parties for
actual damages or losses caused by his offense;
(g) Shall comply with such orders as the court may from time to time
make; and
(h) Shall refrain from violating any law, statute, ordinance, or any bylaw or regulation, promulgated in accordance with law.
The court is required to notify the probation officer in writing of the
period and terms of probation. Under section 4, it is only after the
period of probation, the submission of a report of the probation
officer and appropriate finding of the court that the probationer has
complied with the conditions of probation that probation may be
definitely terminated and the probationer finally discharged from
supervision. Under section 5, if the court finds that there is non-

compliance with said conditions, as reported by the probation

officer, it may issue a warrant for the arrest of the probationer and
said probationer may be committed with or without bail. Upon
arraignment and after an opportunity to be heard, the court may
revoke, continue or modify the probation, and if revoked, the court
shall order the execution of the sentence originally imposed. Section
6 prescribes the duties of probation officers: "It shall be the duty of
every probation officer to furnish to all persons placed on probation
under his supervision a statement of the period and conditions of
their probation, and to instruct them concerning the same; to keep
informed concerning their conduct and condition; to aid and
encourage them by friendly advice and admonition, and by such
other measures, not inconsistent with the conditions imposed by
court as may seem most suitable, to bring about improvement in
their conduct and condition; to report in writing to the court having
jurisdiction over said probationers at least once every two months
concerning their conduct and condition; to keep records of their
work; make such report as are necessary for the information of the
Secretary of Justice and as the latter may require; and to perform
such other duties as are consistent with the functions of the
probation officer and as the court or judge may direct. The
probation officers provided for in this Act may act as parole officers
for any penal or reformatory institution for adults when so
requested by the authorities thereof, and, when designated by the
Secretary of Justice shall act as parole officer of persons released on
parole under Act Number Forty-one Hundred and Three, without
additional compensation."
It is argued, however, that even without section 11 probation
officers maybe appointed in the provinces under section 10 of Act
which provides as follows:
There is hereby created in the Department of Justice and subject to
its supervision and control, a Probation Office under the direction of
a Chief Probation Officer to be appointed by the Governor-General
with the advise and consent of the Senate who shall receive a salary
of four eight hundred pesos per annum. To carry out this Act there is
hereby appropriated out of any funds in the Insular Treasury not
otherwise appropriated, the sum of fifty thousand pesos to be
disbursed by the Secretary of Justice, who is hereby authorized to
appoint probation officers and the administrative personnel of the
probation officer under civil service regulations from among those
who possess the qualifications, training and experience prescribed
by the Bureau of Civil Service, and shall fix the compensation of such
probation officers and administrative personnel until such positions
shall have been included in the Appropriation Act.
But the probation officers and the administrative personnel referred
to in the foregoing section are clearly not those probation officers
required to be appointed for the provinces under section 11. It may
be said, reddendo singula singulis, that the probation officers
referred to in section 10 above-quoted are to act as such, not in the
various provinces, but in the central office known as the Probation
Office established in the Department of Justice, under the
supervision of the Chief Probation Officer. When the law provides
that "the probation officer" shall investigate and make reports to
the court (secs. 1 and 4); that "the probation officer" shall supervise
and visit the probationer (sec. 2; sec. 6, par. d); that the probationer
shall report to the "probationer officer" (sec. 3, par. c.), shall allow
"the probationer officer" to visit him (sec. 3, par. d), shall truthfully
answer any reasonable inquiries on the part of "the probation
officer" concerning his conduct or condition (sec. 3, par. 4); that the

court shall notify "the probation officer" in writing of the period and
terms of probation (sec. 3, last par.), it means the probation officer
who is in charge of a particular probationer in a particular province.
It never could have been intention of the legislature, for instance, to
require the probationer in Batanes, to report to a probationer
officer in the City of Manila, or to require a probation officer in
Manila to visit the probationer in the said province of Batanes, to
place him under his care, to supervise his conduct, to instruct him
concerning the conditions of his probation or to perform such other
functions as are assigned to him by law.
That under section 10 the Secretary of Justice may appoint as many
probation officers as there are provinces or groups of provinces is, of
course possible. But this would be arguing on what the law may be
or should be and not on what the law is. Between is and ought there
is a far cry. The wisdom and propriety of legislation is not for us to
pass upon. We may think a law better otherwise than it is. But much
as has been said regarding progressive interpretation and judicial
legislation we decline to amend the law. We are not permitted to
read into the law matters and provisions which are not there. Not
for any purpose not even to save a statute from the doom of
invalidity.
Upon the other hand, the clear intention and policy of the law is not
to make the Insular Government defray the salaries of probation
officers in the provinces but to make the provinces defray them
should they desire to have the Probation Act apply thereto. The sum
of P50,000, appropriated "to carry out the purposes of this Act", is
to be applied, among other things, for the salaries of probation
officers in the central office at Manila. These probation officers are
to receive such compensations as the Secretary of Justice may fix
"until such positions shall have been included in the Appropriation
Act". It was the intention of the legislature to empower the
Secretary of Justice to fix the salaries of the probation officers in the
provinces or later on to include said salaries in an appropriation act.
Considering, further, that the sum of P50,000 appropriated in
section 10 is to cover, among other things, the salaries of the
administrative personnel of the Probation Office, what would be left
of the amount can hardly be said to be sufficient to pay even
nominal salaries to probation officers in the provinces. We take
judicial notice of the fact that there are 48 provinces in the
Philippines and we do not think it is seriously contended that, with
the fifty thousand pesos appropriated for the central office, there
can be in each province, as intended, a probation officer with a
salary not lower than that of a provincial fiscal. If this a correct, the
contention that without section 11 of Act No. 4221 said act is
complete is an impracticable thing under the remainder of the Act,
unless it is conceded that in our case there can be a system of
probation in the provinces without probation officers.
Probation as a development of a modern penology is a
commendable system. Probation laws have been enacted, here and
in other countries, to permit what modern criminologist call the
"individualization of the punishment", the adjustment of the penalty
to the character of the criminal and the circumstances of his
particular case. It provides a period of grace in order to aid in the
rehabilitation of a penitent offender. It is believed that, in any cases,
convicts may be reformed and their development into hardened
criminals aborted. It, therefore, takes advantage of an opportunity
for reformation and avoids imprisonment so long as the convicts
gives promise of reform. (United States vs. Murray [1925], 275 U. S.,
347 357, 358; 72 Law. ed., 309; 312, 313; 48 Sup. Ct. Rep., 146;

Kaplan vs. Hecht, 24 F. [2d], 664, 665.) The Welfare of society is its
chief end and aim. The benefit to the individual convict is merely
incidental. But while we believe that probation is commendable as a
system and its implantation into the Philippines should be
welcomed, we are forced by our inescapable duty to set the law
aside because of the repugnancy to our fundamental law.
In arriving at this conclusion, we have endeavored to consider the
different aspects presented by able counsel for both parties, as well
in their memorandums as in their oral argument. We have examined
the cases brought to our attention, and others we have been able to
reach in the short time at our command for the study and
deliberation of this case. In the examination of the cases and in then
analysis of the legal principles involved we have inclined to adopt
the line of action which in our opinion, is supported better reasoned
authorities and is more conducive to the general welfare. (Smith,
Bell & Co. vs. Natividad [1919], 40 Phil., 136.) Realizing the conflict of
authorities, we have declined to be bound by certain adjudicated
cases brought to our attention, except where the point or principle
is settled directly or by clear implication by the more authoritative
pronouncements of the Supreme Court of the United States. This
line of approach is justified because:
(a) The constitutional relations between the Federal and the State
governments of the United States and the dual character of the
American Government is a situation which does not obtain in the
Philippines;
(b) The situation of s state of the American Union of the District of
Columbia with reference to the Federal Government of the United
States is not the situation of the province with respect to the Insular
Government (Art. I, sec. 8 cl. 17 and 10th Amendment, Constitution
of the United States; Sims vs. Rives, 84 Fed. [2d], 871),
(c) The distinct federal and the state judicial organizations of the
United States do not embrace the integrated judicial system of the
Philippines (Schneckenburger vs. Moran [1936], 35 Off. Gaz., p.
1317);
(d) "General propositions do not decide concrete cases" (Justice
Holmes in Lochner vs. New York [1904], 198 U. S., 45, 76; 49 Law.
ed., 937, 949) and, "to keep pace with . . . new developments of
times and circumstances" (Chief Justice Waite in Pensacola Tel. Co.
vs. Western Union Tel. Co. [1899], 96 U. S., 1, 9; 24 Law. ed., 708;
Yale Law Journal, Vol. XXIX, No. 2, Dec. 1919, 141, 142), fundamental
principles should be interpreted having in view existing local
conditions and environment.
Act No. 4221 is hereby declared unconstitutional and void and the
writ of prohibition is, accordingly, granted. Without any
pronouncement regarding costs. So ordered.
Avancea, C.J., Imperial, Diaz and Concepcion, JJ., concur.
Villa-real and Abad Santos, JJ., concur in the result.

PRIMITIVO LOVINA, and NELLY MONTILLA,

plaintiffs-appelleesvs.
HON. FLORENCIO MORENO, as Secretary of Public Works and
Communications, and BENJAMINYONZON,
defendants-appellants
Facts:
Numerous residents of Macabebe, Pampanga complained that
appellees had blocked the "Sapang Bulati", a navigable river in the
same municipality and asked that the obstructions be ordered
removed, under the provisions ofRepublic Act No. 2056. After notice
and hearing to the parties, the said Secretary of Public Works
andCommunications found the constructions to be a public nuisance
in navigable waters, and ordered the land owners,spouses Lovina, to
remove five (5) closures of Sapang Bulati. After receipt of the
decision, the appellees filed a petition in CFI of Manila to restrain
the Secretary from enforcing his decision.

appropriate facts as a basis for procedure in the enforcementof

particular laws.
It is noteworthy that Republic Act 2605 authorizes removal of the
unauthorized dikes either as "public nuisances or asprohibited
constructions" on public navigable streams, and those of appellees
clearly are in the latter class.
In fine, it is held that Republic Act No. 2056 does not constitute an
unlawful delegation of judicial power to theSecretary of Public
Works; that the findings of fact of the Secretary of Public Works
under Republic Act No. 2056should be respected in the absence of
illegality, error of law, fraud, or imposition, so long as the said,
findings aresupported by substantial evidence submitted to him.
The decision appealed from is reversed, and the writs of injunction
issued therein are annulled and set aside.

The trial court, after due hearing, granted a permanent injunction. It

held that Republic Act No. 2056 isunconstitutional and that Sapang
Bulati is not a navigable river but a private stream.
The appellees contention is that Republic Act No. 2056 is
unconstitutional because it invests the Secretary of PublicWorks and
Communications with sweeping, unrestrained, final and
unappealable authority to pass upon the issues ofwhether a river or
stream is public and navigable, whether a dam encroaches upon
such waters and is constitutive asa public nuisance, and whether the
law applies to the state of facts, thereby Constituting an alleged
unlawfuldelegation of judicial power to the Secretary of Public
Works and Communications.
Issue:
Whether or not there is an unlawful delegation of judicial power.
Held:
The contentions of the appellees are not tenable. R.A. 2056 merely
empowers the Secretary to remove unauthorized obstructions or
encroachments upon public streams, constructions that no private
person was anyway entitled tomake, because the bed of navigable
streams is public property, and ownership thereof is not acquirable
by adversepossession.
It is true that the exercise of the Secretary's power under the Act
necessarily involves the determination of somequestions of fact,
such as the existence of the stream and its previous navigable
character; but these functions,whether judicial or quasi-judicial, are
merely incidental to the exercise of the power granted by law to
clear navigablestreams of unauthorized obstructions or
encroachments, and authorities are clear that they are, validly
conferableupon executive officials provided the party affected is
given opportunity to be heard, as is expressly required byRepublic
Act No. 2056, section 2.
The mere fact that an officer is required by law to inquire the
existence of certain facts and to apply the law thereto inorder to
determine what his official conduct shall be and the fact that these
acts may affect private, rights do notconstitute an exercise of judicial
powers. Accordingly, a statute may give to non-judicial officers the
power to declarethe existence of facts which call into operation its
provisions, and similarly may grant to commissioners and
othersubordinate officer, power to ascertain and determine

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-17821

November 29, 1963

PRIMITIVO LOVINA, and NELLY MONTILLA, plaintiffs-appellees,

vs.
HON. FLORENCIO MORENO, as Secretary of Public Works and
Communications, and BENJAMIN YONZON, defendants-appellants.
Gil R. Carlos and Associates for plaintiffs-appellees.
Office of the Solicitor General for defendants-appellants.
REYES, J.B.L., J.:
This is an appeal from a decision of the Court of First Instance of
Manila (Branch X), in its Civil Case No. 41639, enjoining the Secretary
of Public Works and Communications from causing the removal of
certain dams and dikes in a fishpond owned by Primitivo and Nelly
Lovina in the Municipality of Macabebe Province of Pampanga,
covered by T.C.T. No. 15905.
The cause started by a petition of numerous residents of the said
municipality to the Secretary of Public Works and Communications,
complaining that appellees had blocked the "Sapang Bulati", a
navigable river in Macabebe, Pampanga, and asking that the
obstructions be ordered removed, under the provisions of Republic
Act No. 2056. After notice and hearing to the parties, the said
Secretary found the constructions to be a public nuisance in
navigable waters, and, in his decision dated 11 August 1959, ordered
the land owners, spouses Lovina, to remove five (5) closures of
Sapang Bulati; otherwise, the Secretary would order their removal at
the expense of the respondent. After receipt of the decision, the
respondent filed a petition in the Court of First Instance of Manila to
restrain the Secretary from enforcing his decision. The trial court,
after due hearing, granted a permanent injunction, which is now the
subject of the present appeal.
The respondents-appellants, Florencio Moreno, Secretary of Public
Works and Communications, and Benjamin Yonzon, investigator,

question the jurisdiction of the trial court, and attribute to it the

following errors:
1. The trial court erred in holding in effect, that Republic Act No.
2056 is unconstitutional:
2. The trial court erred in receiving evidence de novo at the trial of
the case;
3. The trial court erred in substituting its judgment for that of
defendant Secretary of Public Works and Communications and in
reversing the latter's finding that the stream in question is a
navigable river which was illegally closed by plaintiffs;
4. The trial court erred in holding that the Sapang Bulati is a private
stream; and
5. The lower court erred in not holding that plaintiffs should first
exhaust administrative remedy before filing the instant petition.
The position of the plaintiffs-appellees in the court below was that
Republic Act No. 2056 is unconstitutional because it invests the
Secretary of Public Works and Communications with sweeping,
unrestrained, final and unappealable authority to pass upon the
issues of whether a river or stream is public and navigable, whether
a dam encroaches upon such waters and is constitutive as a public
nuisance, and whether the law applies to the state of facts, thereby
Constituting an alleged unlawful delegation of judicial power to the
Secretary of Public Works and Communications.
Sections 1 and 2 of Republic Act 2056 provides:
Section 1. Any provision or provisions of law to the contrary
notwithstanding, the construction or building of dams, dikes or any
other works which encroaches into any public navigable river,
stream, coastal waters and any other navigable public waters or
waterways as well as the construction or building of dams, dikes or
any other works in areas declared as communal fishing grounds,
shall be ordered removed as public nuisances or a prohibited
constructions as herein provided: Provided, however, That the
Secretary of Public Works and Communications may authorize the
construction of any such work when public interest or safety so
requires or when it is absolutely necessary for the protection of
private property.
Section 2. When it is found by the Secretary of Public Works and
Communications, after due notice and hearing, that any dam, dike
or any other works now existing or may there after be constructed
encroaches into any public navigable waters, or that they are
constructed in areas declared as communal fishing grounds, he shall
have the authority to order the removal of any such works and shall
give the party concerned a period not to exceed thirty days for the
removal of the same: Provided, That fishpond constructions or works
on communal fishing grounds introduced in good faith before the
areas we proclaimed as fishing grounds shall be exempted from the
provisions of this Act, provided such constructions or works do not
obstruct or impede the free passage of any navigable river, stream,
or would not cause inundations of agricultural areas: Provided,
further, That should the party concerned fail to comply with the
order of the Secretary of Public Works and Communications within
the period so stated in the order, such removal shall be effected by

the Secretary of Public Works and Communications at the expense

of the said party within ten days following the expiration of the
period given the party concerned: Provided, furthermore, That the
investigation and hearing to be conducted by the Secretary of Public
Works and Communications under this section shall be terminated
and decided by him within a period which shall not exceed ninety
days from the time he shall have been notified in writing or a written
complaint shall have been filed with him by any interested party
apprising him of the existence of a dam, dike or any other works that
encroaches into any other public navigable river, stream, coastal
waters or any other public navigable waters or waterways and in
areas declared as communal fishing grounds: Provided, still
furthermore, That the failure on the part of the Secretary of Public
Works and Communications without justifiable or valid reason to
terminate and decide a case or effect the removal of any such
works, as provided for in this section, shall constitute an offense
punishable under section three of this Act: And provided, finally,
That the removal of any such works shall not impair fishponds
completed or about to be completed which do not encroach or
obstruct any public navigable river or stream and/or which would
not cause inundations of agricultural areas and which have been
constructed in good faith before the area was declared communal
fishing grounds.
The objections of the appellees to the constitutionality of Republic
Act No. 2056, not only as an undue delegation of judicial power to
the Secretary of Public Works but also for being unreasonable and
arbitrary, are not tenable. It will be noted that the Act (R.A. 2056)
merely empowers the Secretary to remove unauthorized
obstructions or encroachments upon public streams, constructions
that no private person was anyway entitled to make, because the
bed of navigable streams is public property, and ownership thereof
is not acquirable by adverse possession (Palanca vs. Commonwealth,
69 Phil. 449).
It is true that the exercise of the Secretary's power under the Act
necessarily involves the determination of some questions of fact,
such as the existence of the stream and its previous navigable
character; but these functions, whether judicial or quasi-judicial, are
merely incidental to the exercise of the power granted by law to
clear navigable streams of unauthorized obstructions or
encroachments, and authorities are clear that they are, validly
conferable upon executive officials provided the party affected is
given opportunity to be heard, as is expressly required by Republic
Act No. 2056, section 2.
It thus appears that the delegation by Congress to executive or
administrative agencies of functions of judicial, or at least, quasijudicial functions is incidental to the exercise by such agencies of
their executive or administrative powers, is not in violation of the
Separation of Powers so far as that principle is recognized by the
Federal Constitution nor is it in violation of due process of law. (3
Willoughby on the Const. of the U.S., pp. 1654-1655)
The mere fact that an officer is required by law to inquire the
existence of certain facts and to apply the law thereto in order to
determine what his official conduct shall be and the fact that these
acts may affect private, rights do not constitute an exercise of
judicial powers. Accordingly, a statute may give to non-judicial
officers the power to declare the existence of facts which call into
operation its provisions, and similarly may grant to commissioners
and other subordinate officer, power to ascertain and determine

appropriate facts as a basis for procedure in the enforcement of

particular laws. (11 Am. Jur., Const. Law, p. 950, sec. 235)
s. 237. Powers to determine cases within Statute. One important
class of cases in which discretion may properly be vested in
administrative officers, which class is almost an operation of the
general rule relating to the ascertainment of facts, consists of those
cases in which a general rule or prohibition is laid down and power is
vested in an executive officer to determine when particular cases do
or do not fall within such rule or prohibition. Power exercised under
such statutes, calling for the exercise of judgment in the execution
of a ministerial act, is never judicial in nature within the sense
prohibited by the Constitution. (11 Am. Jur., Const. Law, sec. 237, p.
952)
A direct precedent can be found in the "Bridge cases" upholding the
constitutionality of the U.S. River and Harbor Act of March 3, 1899,
that empowered (sec. 18) the Secretary of War to take action, after
hearing, for the removal or alteration of bridges unreasonably
obstructing navigation. On the issue of undue delegation of power,
the U.S. Supreme Court ruled as follows:
Congress thereby declared that whenever the Secretary of War
should find any bridge theretofore or thereafter constructed over
any of the navigable waterways of the United States to be an
unreasonable obstruction to the free navigation of such waters on
account of insufficient height, width of span, or otherwise, it should
be the duty of the Secretary, after hearing the parties concerned, to
take action looking to the removal or alteration of the bridge, so as
to render navigation through or under it reasonably free, easy, and
unobstructed. As this court repeatedly has held, this is not an
unconstitutional delegation of legislative or judicial power to the
Secretary. Union Bridge Co. vs. United States, 204 U.S. 364, 385, 51
L. ed. 523, 533, 27 Sup. Ct. Rep. 367; Monongahela Bridge Co. v.
United States, 216 U.S. 177, 192,54 L. ed. 435, 441, 30 Sup. Ct. Rep.
356; Hannibal Bridge Co. v. United States, 221 U.S. 194. 205, 55 L.
ed. 699, 703, 31 Sup. Ct. Rep. 603. The statute itself prescribes the
general rule applicable to all navigable waters, and merely charged
the Secretary of War with the duty of ascertaining in each case,
upon notice to the parties concerned, whether the particular bridge
came within the general rule. Of course, the Secretary's finding must
be based upon the conditions as they exist at the time he acts. But
the law imposing this duty upon him speaks from the time of its
enactment. (Louisville Bridge Co. v. U.S., 61 L. ed. 395). (Emphasis
supplied)
Appellees invoke American rulings that abatement as nuisances of
properties of great value can not be done except through court
proceedings; but these rulings refer to summary abatements
without previous hearing, and are inapplicable to the case before us
where the law provides, and the investigator actually held, a hearing
with notice to the complainants and the, appellees, who appeared
therein. It is noteworthy that Republic Act 2605 authorizes removal
of the unauthorized dikes either as "public nuisances or as
prohibited constructions" on public navigable streams, and those of
appellees clearly are in the latter class.
It may not be amiss to state that the power of the Secretary of
Public Works to investigate and clear public streams free from
unauthorized encroachments and obstructions was granted as far
back as Act 3208 of the old Philippine Legislature, and has been
upheld by this Court (Palanca vs. Commonwealth, supra; Meneses

vs. Commonwealth, 69 Phil. 647). We do not believe that the

absence of an express appeal to the courts under the present
Republic Act 2056 is a substantial difference, so far as the
Constitution is concerned, for it is a well-known rule that due
process does not have to be judicial process; and moreover, the
judicial review of the Secretary's decision would always remain,
even if not expressly granted, whenever his act violates the law or
the Constitution, or imports abuse of discretion amounting to excess
of jurisdiction.
The argument that the action of the Secretary amounts to a
confiscation of private property leads us directly to the issue of fact
whether a navigable portion of the Bulati creek had once traversed
the registered lot of the appellees Lovina and connected with
Manampil creek that borders said lot on the northwest before it was
closed by Jose de Leon, Lovina's predecessor. The Secretary of Public
Works has found from the evidence before him that, originally, the
sapang (creek) Bulati flowed across the property in question, and
connected the Nasi river with sapang Manampil; that in 1926 or
thereabouts, the Bulati creek was 2 meters deep at high tide and 1/2
meter deep at low tide, and the people used it as fishing grounds
and as a communication way, navigating along its length in bancas;
that former registered owner, Jose de Jesus, closed about meters of
the course of the sapang Bulati that lay within the lot in question by
constructing dams or dikes at both sides and converting the lot into
a fishpond.
The appellees, on the other hand, rely on the 1916 registration plan
of the property (Exh. C), showing it to be merely bounded by the
Bulati creek on the southeast, as well as on the testimony
introduced at the hearing of prohibition case (over the objection of
the Government counsel) that the Bulati creek did not enter the
property.
The Court of First Instance found that "according to the location
plan, Exhibit "C", the "Bulati creek, on which dikes and dams in
question were constructed was a mere estero and could not be
considered a navigable stream then." It is not explained how such
fact could appear solely from the plan Exhibit "C" (no other proof
being referred to), unless indeed the court below so concluded from
the fact that in said plan the Bulati creek does not appear to run
within the registered lot. The conclusion of lower court is not
supported by its premises, because by law, the issuance of a Torrens
title does not confer title navigable streams (which are fluvial
highways) within registered property, nor is it conclusive on their
non-existence, unless the boundaries of such streams had been
expressly delimited in the registration plan (Act 496, sec. 39 cf.
Palanca vs. Commonwealth, 69 Phil. 449; Meneses Commonwealth,
69 Phil. 647), so that delimitation of their course may be made even
after the decree of registration has become final. In the present
case, in truth the very plan of the appellees, Exhibit "C", shows
parallel reentrant lines, around its point 65 and between points 44
and that indicate the existence of a stream connecting the sapang
Bulati on the southeast and the sapang Manampil on the northwest,
and which the surveyor apparently failed delimit for some
undisclosed reason. That the stream was the prolongation of the
sapang Bulati, that formerly flow across the registered lot, is also
shown by the fact that appellees' plan Exhibit "C", the westward
continuation the Bulati creek (west of point 65), which bounds the
registered lot, is labelled "Etero Mabao". The plan thus corroborates
the previously summarized testimony laid before investigator
Yonzon and relied upon by the Secretary in his administrative

decision. Even more, appellees' own caretaker, Yambao, showed

investigator Yonzon the old course of the Bulati within the fishpond
itself; and this evidence is, likewise, confirmed by the cross-section
profile of the ground near the dams in question (See plan Annex
"AA" of Yonzon's Report), where the old channel of the creek is
clearly discernible. To be sure, appellees contend that they were not
shown this plan; but in their evidence before the court of first
instance, they never attempted, or offered, to prove that said plan is
incorrect.
That the creek was navigable in fact before it was closed was also
testified to by the government witnesses, whose version is
corroborated as we have seen.
Considering the well-established rule that findings of fact in
executive decisions in matters within their jurisdiction are entitled to
respect from the courts in the absence of fraud, collusion, or grave
abuse of discretion (Com. of Customs vs. Valencia, 54 O.G. 3505),
none of which has been shown to exist in this case, we agree with
appellant that the court below erred in rejecting the findings of fact
of the Secretary of Public Works.
The findings of the Secretary can not be enervated by new evidence
not laid down before him, for that would be tantamount to holding
a new investigation, and to substitute for the discretion and
judgment of the Secretary the discretion and judgment of the court,
to whom the statute had entrusted the case. It is immaterial that the
present action should be one for prohibition or injunction and not
one for certiorari, in either event the case must be resolved upon
the evidence submitted to the Secretary, since a judicial review of
executive decisions does not import a trial de novo, but only an
ascertainment of whether the executive findings are not in violation
of the constitution or of the laws, and are free from fraud or
imposition, and whether they find reasonable support in the
1
evidence. Here, the proof preponderates in favor of the Secretary's
decision.
Nevertheless, we, agree with appellees that they can not be charged
with failure to exhaust administrative remedies, for the Secretary's
decision is that of the President, in the absence of disapproval
(Villena vs. Secretary of the interior, 67 Phil. 451).
Finally, there being a possibility that when they purchased the
property in question the appellees Lovina were not informed of the
illegal closure of the Bulati creek, their action, if any, against their
vendor, should be, and is hereby, reserved.
In resume, we rule:
(1) That Republic Act No. 2056 does not constitute an unlawful
delegation of judicial power to the Secretary of Public Works;
(2) That absence of any mention of a navigable stream within a
property covered by Torrens title does not confer title to it nor
preclude a subsequent investigation and determination of its
existence;
(3) That the findings of fact of the Secretary of Public Works under
Republic Act No. 2056 should be respected in the absence of
illegality, error of law, fraud, or imposition, so long as the said,
findings are supported by substantial evidence submitted to him.

(4) That ownership of a navigable stream or of its bed is not

acquirable by prescription.
WHEREFORE, the decision appealed from is reversed, and the writs
of injunction issued therein are annulled and set aside. Costs against
appellees Lovina.
Bengzon, C.J., Padilla, Bautista Angelo, Barrera, Paredes, Regala and
Makalintal, JJ., concur.
Dizon, J., took no part.

Melendres v COMELEC
Facts:
Melendres (who lost the Brgy. Chairman position to Concepcion in
the May 1997 elections) filed an election protest at the Metropolitan
Trial Court, Pasig contesting results of the elections. After
preliminary hearing, it was found that no filing of docket fee was
paid by Melendres (which was required in Sec.6, Rule 37 of
COMELEC Rules of Procedure) so Concepcion moved to dismiss the
case on grounds of failure to comply with it. Trial Court denied the
motion to dismiss and said that the case should be continued on the
ground that the filing of docket fee is merely an admin. procedural
matter and not jurisdictional. Concepcion elevated the case for
COMELEC to decide on and ruling was that the Trial Court should
cease and desist form further acting on the Election case.
Main issue:
W/N COMELEC acted with a grave abuse of discretion in its ruling
Sub-issue:
W/N payment of filing fee in an election protest is a jurisdictional
reqt
Held:
Sub-issue: No. The payment of filing fee is an admin. procedural
matter, proceeding as it does from an admin. body. Sec 6, Rule 37 of
COMELEC Rules of Procedure is explicit and does not speak of
conferment of jurisdiction upon the Trial Court or acquisition by the
Court of jurisdiction upon payment of filing fee. Contemporaneous
construction is resorted for certainty and predictability in laws esp.
those involving specific terms having tech. agencies.
Main Issue: No. COMELEC did not commit grave abuse of discretion
in its ruling. The interpretation of an admin. govt agency is accorded
with great respect and ordinarily controls the construction of the
courts. When it renders an opinion or issues a statement of policy, it
merely interprets a pre-existing law. Courts give weight to govt
agency or officials charged with the implementation of law, their
competence, expertness, experience and informed judgment.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 129958 November 25, 1999
MIGUEL MELENDRES, JR., petitioner,
vs.
THE COMMISSION ON ELECTIONS and RUPERTO P. CONCEPCION,
respondents.
YNARES-SANTIAGO, J.:
1

Challenged in this petition for certiorari is the Resolution of the

respondent Commission on Elections (COMELEC) dated July 17,
1997, in SPR No. 16-97 entitled "Ruperto P. Concepcion, Petitioner v.
Hon. Maria Cristina Cornejo, Presiding Judge, Branch 66, MTC, Pasig
City and Miguel Melendres, Jr., Respondents" the dispositive portion
of which reads:
WHEREFORE, the questioned Orders of public respondent are
hereby set aside for being NULL and VOID. The public respondent is
hereby ordered to cease and desist from further acting on Election

Case No. 083-97 entitled Miguel Melendres, Jr. v. Ruperto

Concepcion.
SO ORDERED.
Petitioner alleges that the COMELEC gravely abused its discretion in
issuing and promulgating ex parte the assailed resolution without
complying with the provisions of Sections 5 and 6 of Rule 28, Section
1 of Rule 10, Sections 1 to 6 of Rule 14, Sections 1 to 4 of Rule 17
and Section 9 of Rule 18, all of the COMELEC Rules of Procedure.
The factual antecedents of the controversy which are matters of
record have been summed thus by the COMELEC:
Petitioner (herein private respondent Ruperto P. Concepcion) and
private respondent (herein petitioner Miguel Melendres, Jr.) were
candidates for the position of Barangay Chairman of Barangay
Caniogan, Pasig City, in the May 12, 1997 barangay elections. After
the counting of the votes, petitioner (Concepcion) was proclaimed
as the duly elected Barangay Chairman. On May 21, 1997, private
respondent (Melendres) filed an election protest against petitioner
(Concepcion) with the Metropolitan Trial Court of Pasig City,
contesting therein the results of the election in all forty-seven (47)
precincts of said barangay. The case was assigned to Branch 68.
On June 4, 1997, after the preliminary hearing of the election case, it
was shown that no filing or docket fee was paid by the protestant
therein, which payment is required in the COMELEC Rules of
Procedure, Rule 37, Sec. 6. Petitioner Concepcion moved to dismiss
the case on the ground of failure to comply with this requirement. In
the contested Order, public respondent denied the motion to
dismiss on the ground that the requirement of payment of filing or
docket fee is merely an administrative procedural matter and [is]
not jurisdictional. Petitioner presented an oral motion for
reconsideration of the Order, which oral motion was promptly
denied by public respondent. Consequently, the contested ballots
were scheduled for review.
On June 16, 1997, Concepcion filed this instant case for Certiorari
and Prohibition, with a prayer for a Temporary Restraining order
and/or Preliminary Injunction. On June 25, 1997, he filed an Urgent
Motion for Immediate Issuance of a Temporary Restraining Order to
"temporarily restrained (sic) public respondent from commencing
with the revision [of the ballots], pending the hearing of the petition,
in order to maintain the status quo and in order that the issues
raised and the prayer stated in the petition may not become moot
and academic; . . ." The move was prompted by the Order issued by
the public respondent on June 6, 1997, which deferred the revision
of ballots to give way to the petition for certiorari brought to this
Commission, as it involves a question of the court's jurisdiction. The
order also stated that, as agreed upon by both parties, if no
injunction is issued by the end of June, 1997, the revision of ballots
would proceed.
On July 1, 1997, public respondent issued another Order scheduling
the revision of ballots on July 9, considering that no injunctive writ
was issued by the Commission. Consequently, on July 7, 1997, the
latter filed a Second Urgent Motion for Immediate Issuance of a
Temporary Restraining Order with this Commission.

On the same day, respondent Melendres filed with the Commission

a Manifestation wherein he claimed that the contested issue of nonpayment of filing fee was now moot and academic as the same had
been paid on June 6, 1997, ten days before this petition was filed.

14.11 in applying the case of Gatchalian v. Court of Appeals even if

the Gatchalian case involves the NON-PAYMENT of filing fee,
whereas SPR 16-97 involves the WILLFUL REFUSAL of the Clerk of
Court to accept the payment of filing fee;

On the basis of the foregoing factual recital, respondent COMELEC

rendered the challenged Order nullifying the orders of the public
respondent in SPR No. 16-97.

14.12 in applying the Gatchalian case notwithstanding FULL

PAYMENT made by the Petitioner following a lawful order of the
Court;

Asserting that the COMELEC acted with grave abuse of discretion

amounting to lack or excess of jurisdiction, petitioner contends that
public respondent erred

14.13 in ignoring the real issue in SPR 16-97, which is the right and
the authority of the lower court to order the Clerk of Court to accept
the payment of the filing fee in protest cases;

14.1 in disregarding and violating its own rules, specifically Section 5,

Rule 28 of the COMELEC RULES OF PROCEDURE, in not issuing and
serving an order requiring the Respondents to answer the petition
filed before it;

14.14 in overturning the doctrine consistently laid down by the

Supreme Court in a long line of decisions that "election cases must
be construed liberally to the end that the will of the people in the
choice of public officials may not be defeated by mere technical
objections"; and

14.2 in disregarding and violating its own rules, specifically Section 1,

Rule 10 of the COMELEC RULES OF PROCEDURE, in not issuing and
serving the Summons and COPY OF THE PETITION to the
Respondents, both private and public, in SPR 16-97;
14.3 in disregarding and violating its own rules, specifically the
provisions of Sections 2 to 6, Rule 14 of the COMELEC RULES OF
PROCEDURE requiring the issuance, service and proof of service of
summons to the respondents in SPR 16-97;
14.4 in disregarding and violating its own rules, specifically Section 6,
Rule 28 and Sections 1 to 4, Rule 17, when it did not set or conduct
any hearing in SPR 16-97;
14.5 in disregarding and violating its own rules when it promulgated
the questioned Resolution despite the clear provision of Section 6,
Rule 28, that it shall render judgment only "AFTER SUCH HEARING";
14.6 in disregarding and violating its own rules, specifically Section 9
(a), Rule 18 of the COMELEC RULES OF PROCEDURE, when it issued
the questioned Resolution even though SPR 16-97 is not yet
DEEMED SUBMITTED FOR DECISION;
14.7 in resolving the Petition (SPR 16-97) without a hearing, when
Respondent Concepcion himself requests for a decision on his
petition AFTER HEARING;
14.8 in acting on the Petition for Certiorari raised by Respondent
Concepcion even though it involves the denial of his Motion to
Dismiss by the lower Court, a PROHIBITED PLEADING under Section
1, Rule 13 of the COMELEC RULES OF PROCEDURE;
14.9 in ruling on the issue of non-payment of filing fee, when said
issue was never raised as a Special or Affirmative Defense in the
Answer of Respondent Concepcion;
14.10 in circumventing its own rules when it allowed the issue of
non-payment of filing fee to be discussed even if the same was not
raised in the Answer, but only in a Motion to Dismiss, a prohibited
pleading under the RULES;

14.15 in not applying the decision of the Supreme Court in the case
3
of Rodillas v. Commission on Elections consistent with the
provisions of Section 18 of Rule 42 of the COMELEC RULES OF
PROCEDURES.
The Court issued a Resolution dated September 14, 1999 which,
among others, gave due course to the petition and required the
parties to submit their respective memoranda within thirty (30) days
from notice. However, in view of petitioner's "Urgent Motion for
4
5
Early Resolution" and private respondent's Comment thereon,
echoing petitioner's desire that the petition be "immediately
resolved in order that the issues raised may be finally put to rest,"
the Court deemed it to the best interest of justice to dispense with
the filing of the said memoranda and to forthwith decide the
questions raised on the basis of the parties' pleadings.
The issues raised here boils down to whether or not: 1.] the
payment of the filing fee in an election protest is a jurisdictional
requirement and non-compliance can be a valid basis for the
dismissal of the protest; 2.] subsequent full payment of the filing fee
after the lapse of the reglementary period will cure the jurisdictional
defect; and, 3.] public respondent observed due process prior to the
promulgation of the questioned resolution in SPR No. 16-97.
With regard to the first issue, it appears from the record that private
respondent was proclaimed as the duly elected Punong Barangay of
6
Barangay Caniogan, Pasig City on May 12, 1997. On May 21, 1997,
petitioner filed an election protest challenging the results of the
barangay elections with the Metropolitan Trial Court of Pasig City
where the same was docketed as Election Protest Case No. 083-97
and raffled to Branch 68 of said court.
On June 4, 1997, after the preliminary hearing of the case, it was
shown that no filing or docket fee was paid by petitioner/protestant,
7
prompting private respondent/protestee to move for the dismissal
of the election protest on the ground of lack of jurisdiction for
failure to comply with the jurisdictional requirement of payment of
filing fee as required under Section 6, Rule 37 of the COMELEC Rules
of Procedure which provides that

Sec. 6. Filing fee. No protest shall be given due course without the
payment of a filing fee of One Hundred Pesos (P100.00) and the
legal research fee as required by law. (Emphasis supplied).
On June 5, 1997, the Presiding Judge of the Metropolitan Trial Court
of Pasig City, Branch 68, issued an Order which reads:
Upon verification with the Clerk of Court, Metropolitan Trial Court of
Pasig City, it was found out that indeed, no filing fee was paid for
this petition, as none was collected by the Clerk of Court from all
those who filed election protests.
Be that as it may, the question raised in this case is whether or not
compliance with Sec. 6, Rule 37 of the COMELEC Rules of Procedure
is jurisdictional.
In ordinary civil actions to which the Revised Rules of Court and
other related doctrines apply, the court acquires jurisdiction over
the case only upon payment of the filing fee. It should be noted,
however, that the instant case is not an ordinary action but an
election case. By express provision of Rule 143, the Revised Rules of
Court shall not apply to election cases except by analogy or in a
suppletory character whenever practicable and convenient. Suffice it
to say that the suppletory character is applied only when a law or
Rule in question is silent on the matter in contention. The COMELEC
Rule in question is, however, explicit. Under the circumstances, the
Revised Rules of Court and its related doctrines do not apply to this
case.
As afore-cited, the COMELEC Rule in question (Sec. 6, Rule 37) is
explicit. The Rule does not speak of conferment of jurisdiction upon
the Court or the acquisition by the Court of jurisdiction upon
payment of the filing fee. Nothing extant in the COMELEC Rules
either expressly or by implication requires the payment of the filing
fee for purposes of conferment upon or acquisition by the Court of
jurisdiction over the case. The Rule speaks only of "giving due
course" to the protest upon the payment of the filing fee.
Undeniably therefore, the payment of the filing fee is an
administrative procedural matter, proceeding as it does from an
administrative body.
Due course has been given to this protest when it was accepted for
filing by the Clerk of Court without payment of the filing fee. There
was an honest error of omission on the part of the Clerk of Court as
evidenced by the fact that all the other election protests were
accepted for filing by the Clerk of Court without the payment of
filing fee. This petition was no exception. There simply was an
administrative procedural lapse but which does not detract from the
fact that the Court has jurisdiction over this case as conferred upon
it by substantive law, the Omnibus Election Code.
The Court had acquired jurisdiction over the case. The jurisdiction of
the Court over a contest attaches when motion containing the
proper jurisdictional averments is filed within the time prescribed by
law; the jurisdiction of the Court cannot thereafter be determined
by law; what the law itself may do or may not do (Lucero vs. De
Guzman, 46 Phil. 852). The payment of the filing fee is not one of the
jurisdictional facts required to be alleged in the petition. At any rate,
the sufficiency of the allegations in the petition is not essential for
the acquisition of jurisdiction (which had already been acquired by
the filing of the petition, as afore-cited), but only to continue in its

exercise, once it has been acquired (Santiago vs. Ignacio, 52 Phil.

376).
It is axiomatic that an election contest, involving as it does not only
the adjudication and settlement of private interests of the rival
candidates but also the paramount need of disspelling once and for
all the uncertainty that beclouds the real choice of the electorate
with respect to who shall discharge the prerogative of the officers
within their girt, is a proceeding imbued with public interest which
raises it onto a plane over and above ordinary civil actions. For this
reason, broad perspective[s] of public policy impose upon the Courts
the imperative duty to ascertain by all means within their command
who is the real candidate elected in an expeditious manner as
possible, without being fettered in technicalities and procedural
barriers to the end that the will of the people may not be frustrated
(Sibulo vda. de Mesa, et al. vs. Hon. Eulogio Mencias, et al., Oct. 29,
1966, citing Ibasco vs. Ilao, et al., Dec. 20, 1960.)
On the basis of all the foregoing considerations, it is resolved that
the payment of the filing of fee for purposes of an election protest
and counter-protest is not jurisdictional and, hence, non-compliance
therewith at the outset will not operate to deprive the Court of
jurisdiction conferred upon it by law and acquired pursuant to the
Rules. Accordingly, the Motion to Dismiss the instant petition is
hereby denied.
The herein protestant is hereby directed to pay the filing fee of
P100.00 with respect to his protest, and the protestee is directed to
8
pay the filing fee with respect to his counter-protest.
Aggrieved, private respondent filed on June 16, 1997 a petition for
certiorari and prohibition with respondent Commission on Elections
(COMELEC), docketed as SPR No. 16-97 entitled "Ruperto P.
Concepcion, Petitioner v. Hon. Maria Cristina Cornejo and Miguel
Melendres, Jr., Respondent.
The COMELEC overruled the assailed Order of the Metropolitan Trial
Court reasoning as follows:
Petitioner contends that public respondent committed grave abuse
of discretion amounting to lack of jurisdiction in not dismissing the
election protest for failing to comply with the required payment of
filing and legal research fees as prescribed in the COMELEC Rules of
Procedure, such requirement being jurisdictional, as opposed to the
contention of public respondent. The COMELEC Rules of Procedure,
Rule 37, Sec. 6, states:
Sec. 6. Filing fee. No protest shall be given due course without the
payment of a filing fee of One Hundred Pesos (P100.00) and the
legal research fee as required by law. (Emphasis supplied).
There is no denying private respondent's failure to comply with this
requirement, given the certification of the Clerk of Court of Branch
68. Melendres' failure to pay said fee at the time the election
protest was filed is also clear from the questioned Order and in the
July 7, 1997 Manifestation of Concepcion filed with this Commission.
Hence, the contested Orders must be reversed.
9

In Gatchalian v. Court of Appeals, the Supreme Court has stated

clearly that "[i]t is the payment of the filing fee that vests jurisdiction
of the court over the election protest . . . ." In the case of Pahilan v.

10

Tabalba, the Court recognized a distinction between the partial

payment of filing fees and the complete absence of such payment. If
there is complete absence of payment, the case is not given due
course. The court entertained the case because there was, at least
"incomplete payment" of the filing fees. The Court compared this to
11
the case of Malimit v. Degamo wherein there was no payment of
the fees at all. The Supreme Court stated therein that "[b]efore the
payment of the docket fees, the case is not deemed duly registered
12
and docketed.
13

The ruling in Sun Insurance Office Ltd. v. Asuncion is a prelude to

the Pahilan ruling. There was likewise an incomplete payment of the
said fees in Sun Insurance, and the
subsequent payment of the correct [amount was allowed] provided
it is within the reglementary period or before prescription has set in
. . . [and that] there was no intent on the part of the petitioners
14
therein to defraud the government . . .
The requirement of payment of filing fees is not, therefore, a mere
procedural matter but is, rather, jurisdictional. The Metropolitan
Trial Court of Pasig City, Branch 68 could not be said to have
acquired jurisdiction despite the complete failure of the private
respondent to pay the said fees.
Private respondent claims that the payment of the filing fee ten (10)
days before this petition was filed, rendered the same moot and
academic. This is untenable. The Rules of Procedure of the
Commission, in Sec. 6 of Rule 37 requires the payment of the filing
fee of one hundred pesos for the proper court to acquire
jurisdiction. However, this has to be read in conjunction with Sec. 4
of the same rule:
Sec. 4. Period within which to file petition. The petition shall be
filed within ten (10) days after the proclamation.
Given the cited rulings of the Supreme Court above, especially those
in the Malimit and Gatchalian cases, such late payment does not
vest any jurisdiction upon the Metropolitan Trial Court of Pasig City,
Branch 68, said payment having been made beyond the period
prescribed.
It needs be stressed that the power of administrative agencies to
promulgate rules in the implementation of a statute is necessarily
15
limited to what is provided for in the legislative enactment.
However, "[A] long line of cases establish the basic rule that the
courts will not interfere in matters which are addressed to the sound
discretion of government agencies entrusted with the regulation of
activities coming under the special technical knowledge and training
16
of such agencies." More explicitly
Generally, the interpretation of an administrative government
agency, which istasked to implement a statute, is accorded great
17
respect and ordinarily controls the construction of the courts. The
reason behind this rule was explained in Nestle Philippines, Inc. vs.
18
Court of Appeals, in this wise:
The rationale for this rule relates not only to the emergence of the
multifarious needs of a modern or modernizing society and the
establishment of diverse administrative agencies for addressing and
satisfying those needs; it also relates to the accumulation of

experience and growth of specialized capabilities by the

administrative agency charged with implementing a particular
19
statute. In Asturias Sugar Central, Inc. v. Commissioner of Customs
the Court stressed that executive officials are presumed to have
familiarized themselves with all the considerations pertinent to the
meaning and purpose of the law, and to have formed an
independent, conscientious and competent expert opinion thereon.
The courts give much weight to the government agency or officials
charged with the implementation of the law, their competence,
expertness, experience and informed judgment, and the fact that
they frequently are drafters of the law they interpret.
As a general rule, contemporaneous construction is resorted to for
20
certainty and predictability in the laws, especially those involving
specific terms having technical meanings.
However, courts will not hesitate to set aside such executive
interpretation when it is clearly erroneous, or when there is no
21
ambiguity in the rule, or when the language or words used are
22
clear and plain or readily understandable to any ordinary reader.
Stated differently, when an administrative agency renders an
opinion or issues a statement of policy, it merely interprets a preexisting law and the administrative interpretation is at best advisory
23
for it is the courts that finally determine what the law means. Thus
an action by an administrative agency may be set aside by the
judicial department if there is an error of law, abuse of power, lack
of jurisdiction or grave abuse of discretion clearly conflicting with
24
the letter and spirit of the law.
However, there is no cogent reason to depart from the general rule
because the findings of the COMELEC conforms to rather than
conflicts with the governing statute and controlling case law on the
matter.
It will be observed that the order of the Metropolitan Trial Court
was challenged on certiorari before respondent COMELEC because
private respondent's motion to dismiss was denied on the basis of
the trial court's observation that the non-payment of filing fees is
not jurisdictional but is merely an administrative matter which did
not affect its jurisdiction.
This ruling of the trial court directly contravenes this Court's explicit
25
pronouncement in Gatchalian v. Court of Appeals declaring in no
uncertain terms that
It is the payment of the filing fee that vests jurisdiction of the court
over the election protest, not the payment of the docket fees for the
claim of damages and attorney's fees. For failure to pay the filing fee
prescribed under Section 9, Rule 35 of the COMELEC Rules of
Procedure, "[n]o protest . . . shall be given due course without the
payment of a filing fee in the amount of Three Hundred Pesos
(P300.00) for each interest." (Emphasis and italics supplied.)
Apropos the second issue, the subsequent payment of the filing fee
on June 6, 1997 will not extricate petitioner from his predicament
considering that before the payment of the filing fee, a case is not
26
deemed duly registered and docketed. In other words, the date of
the payment of the filing fee is deemed the actual date of the filing
of the election protest and, viewed vis--vis Section 3, Rule 35 of the
COMELEC Rules of Procedure which provides that

Sec. 3. Period to file petition. The petition shall be filed within ten
(10) days following the date of proclamation of the results of the
election.
the subsequent payment of the filing fee on June 6, 1997 did not
cure the jurisdictional defect because the said date which is deemed
the actual date of filling the election protest is twenty-five (25) days
after the proclamation of the results of the election on May 12, 1997
and, needless to state, way beyond the ten-day reglementary period
to file the same. In this regard, it bears stressing that
The rule prescribing the ten-day period is mandatory and
jurisdictional and the filing of an election protest beyond the period
27
deprives the court of jurisdiction over the protest. Violation of this
rule should not be taken lightly nor should it be brushed aside as a
mere procedural lapse that can be overlooked. The rule is not a mere
technicality but an essential requirement, the non-compliance of
which would oust the court of jurisdiction over the case.
28

29

In Lim vs. COMELEC, citing Kho vs. COMELEC, this court

reiterated the long standing rule that a counterprotest must be filed
within the period provided by law, otherwise, the court acquires no
30
jurisdiction to entertain it.
Relatedly, if the docket fees are not fully paid on time, even if the
election protest is timely filed, the court is deprived of jurisdiction
31
over the case. (Emphasis and italics supplied).
Neither can petitioner seek refuge behind his argument that the
motion to dismiss filed by private respondent is a prohibited
pleading under Section 1, Rule 13 of the COMELEC Rules of
Procedure because the said provision refers to proceedings filed
before the COMELEC. The applicable provisions on the matter are
found in Part VI of the Rules of Procedure titled "PROVISIONS
GOVERNING ELECTION CONTESTS BEFORE TRIAL COURT" and as this
32
Court pointedly stated in Aruelo v. Court of Appeals:
It must be noted that nowhere in Part VI of the COMELEC Rules of
Procedure is it provided that motions to dismiss and bill of
particulars are not allowed in election protests or quo warranto
cases pending before regular courts.
Constitutionally speaking, the COMELEC cannot adopt a rule
prohibiting the filing of certain pleadings in the regular courts. The
power to promulgate rules concerning pleadings, practice and
33
procedure in all courts is vested on the Supreme Court. (Emphasis
and italics supplied)
The grounds relied upon to support his position in the third issue is,
likewise, no refuge for petitioner who insists that public respondent
denied him his right to due rules. More specifically, petitioner
contends that the COMELEC did comply with the requirements
regarding the issuance and service of summons and conducting
hearings for the purpose of receiving evidence under Rule 14 of the
COMELEC Rules. Petitioner's arguments along this line fails to
persuade. It must be borne in mind that the assailed order of the
Metropolitan Trial Court was elevated to the COMELEC by way of
certiorari. Section 1, Rule 14 does not require the issuance and
service of summons in cases involving appeals from the decisions of
the courts in election protest, special actions, special cases, special
reliefs and special proceedings, viz:

Sec. 1. Clerk to issue summons. Unless otherwise provided herein,

the Clerk of Court concerned shall issue the corresponding summons
to the protestee or repondent within three (3) days following the
filing of a protest or petition in ordinary actions except appeals from
decisions of courts in election protest cases, in special actions, special
cases, special reliefs and in special proceedings.
In relation to the foregoing, Section 4, Rule 28 of the COMELEC Rules
provides that:
Sec. 4. Duty of Clerk of Court of the Commission. Upon the filing of
the petition, the Clerk of Court shall calendar the case for an en banc
ex parte hearing of the Commission to determine if it is sufficient in
form and substance. (Emphasis and italics supplied).
It can be clearly gleaned from these complementing provisions of
Section 4, Rule 28 that the petitioner has no right to require the
COMELEC to first hear and receive evidence before deciding the
merits of the petition for certiorari.
At any rate, petitioner can hardly feign denial of due process given
the prevailing facts of this case. It appears from the record that on
June 16, 1997, before filing with the COMELEC the petition for
certiorari challenging the validity of the Metropolitan Trial Court's
order, petitioner was furnished a copy of the said petition by
registered mail. In fact, no less than petitioner himself expressly
34
admits in the petition that he received a copy of the petition for
certiorari and prohibition on June 19, 1997 or three (3) days after
the filing thereof with respondent COMELEC. It must be
remembered that a formal notice would have been an idle
ceremony where an adverse party, as in this case, had actual
35
knowledge of the proceedings.
What, however, spells finis to any further pretensions of petitioner
that he was neither afforded an opportunity to be heard nor was
jurisdiction acquired over his person is his filing on June 23, 1997 of
36
an exhaustive Comment to the petition. Petitioner, in filing the
said pleading, submitted himself to the jurisdiction of respondent
COMELEC because as has been consistently held in a litany of cases,
jurisdiction over a party is acquired either by coercive process,
37
generally by service of summons, or by voluntary appearance. In
other words, the filing of the Comment as well as a Manifestation
38
subsequently filed on July 7, 1997 cured the lack of summons
considering that "[V]oluntary appearance is equivalent to service of
39
summons, in fact it even cures the defect of summons.
Finally, with regard to the requisite of hearing, suffice it to state that

A formal trial-type hearing is not at all times and in all instances

essential to due process. It is enough that the parties are given a fair
and reasonable opportunity to explain their respective sides of the
controversy and to present evidence on which a fair decision can be
based . . . .
xxx xxx xxx
Commenting on the same topic, we said earlier in Zaldivar vs.
40
Sandiganbayan

Due process as a constitutional precept does not, always and in all

situations, require a trial-type proceedings. The essence of due
process is to be found in the reasonable opportunity to be heard and
to submit any evidence one may have in support of one's defense.
"To be heard" does not only mean verbal arguments in court. One
may also be heard through pleadings where opportunity to be
heard, either through oral arguments or pleadings, is accorded,
41
there is no denial of due process.
All told, the issue of jurisdiction was rendered moot by petitioner's
42
active participation in the proceedings below and such active
participation of the petitioner against whom the action was brought
is tantamount to an invocation of that jurisdiction and a willingness
to abide by the resolution of the case and will bar said party from
43
later on impugning the court or body's jurisdiction.
WHEREFORE, in view of all the foregoing, the petition is DISMISSED
for lack of merit.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
Panganiban, Quisumbing, Purisima, Buena, Gonzaga-Reyes and De
Leon, Jr., JJ., concur.
Pardo, J., took no part.

TOPIC: CHAPTER V SUBJECTS OF CONSTRUCTIONC. OTHER

ISSUANCES WHICH HAVE THE BINDING FORCE ANDEFFECT
OFLAWS
TITLE:AVELINA B. CONTE and LETICIA BOISER-PALMA,
petitioners,vs. COMMISSION ON AUDIT (COA), respondent.(264
SCRA 19, L - 116422 04 NOVEMBER 1996)
FACTS:
Avelina Conte and Leticia Boiser were both former employees of SSS
who availed of compulsory retirement benefits provided forunder
RA No. 660. Both also claimed with the SSS financialassistance
benefits as provided for under SSS Resolution No. 56,Series of 1971.
The subject SSS resolution was disallowed by COA in its rulingissued
on July 10, 1989 stating that the scheme of financialassistance
authorized by SSS is similar to separate retirementplan or
incentives/separation pay plans adopted by othergovernment
agencies which in turn results in the increase of benefits beyond
what is allowed under existing retirement laws.
The SSS thereafter sought presidential authority to
continueimplementing Res. 56 to which the Office of the
ExecutiveSecretary replied that the Office of the President is not
inclinedto favorably act on the request or let alone overrule COAs
earlierruling.
Petitioners Conte and Boiser sought reconsideration of COAsruling
disallowing their claim and also sought payment from SSSof benefits
as prescribed under Res. 56, both of which weredenied by COA and
SSS.
ISSUE:Whether or not the benefits provided for under SSS
ResolutionNo. 56 be considered simply as financial assistance for
retiringemployees, or does such a scheme constitute a
supplementaryretirement plan prescribed by RA 4968.
HELD:The Supreme Court ruled that SSS Resolution No. 56 constitute
asupplementary retirement plan, thus, within the ambit of Sec. 28(b)
of CA 186 as amended by RA 4968 which bars the creation of any
insurance or retirement plan other than the GSIS forgovernment
officers and employees, in order to prevent theundue and iniquitous
proliferation of such plans. Resolution No.56 is therefore invalid,
void and of no effect.
Petition was dismissed for lack of merit, the assailed COAdecision is
upheld, and SSS Resolution No. 56 is declared illegal,void and of no
effect.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 116422 November 4, 1996
AVELINA B. CONTE and LETICIA BOISER-PALMA, petitioners,
vs.
COMMISSION ON AUDIT (COA), respondent.
PANGANIBAN, J.:
Are the benefits provided for under Social Security System
Resolution No. 56 to be considered simply as "financial assistance"
for retiring employees, or does such scheme constitute a

supplementary retirement plan proscribed by Republic Act No.

4968?
The foregoing question is addressed by this Court in resolving the
instant petition for certiorari which seeks to reverse and set aside
Decision No. 941
126 dated March 15, 1994 of respondent Commission on Audit,
which denied petitioners' request for reconsideration of its adverse
ruling disapproving claims for financial assistance under SSS
Resolution No. 56.
The Facts
Petitioners Avelina B. Conte and Leticia Boiser-Palma were former
employees of the Social Security System (SSS) who retired from
government service on May 9, 1990 and September 13, 1992,
respectively. They availed of compulsory retirement benefits under
2
Republic Act No. 660.
In addition to retirement benefits provided under R.A. 660,
petitioners also claimed SSS "financial assistance" benefits granted
under SSS Resolution No. 56, series of 1971.
3

A brief historical backgrounder is in order. SSS Resolution No. 56,

approved on January 21, 1971, provides financial incentive and
inducement to SSS employees qualified to retire to avail of
retirement benefits under RA 660 as amended, rather than the
retirement benefits under RA 1616 as amended, by giving them
"financial assistance" equivalent in amount to the difference
between what a retiree would have received under RA 1616, less
what he was entitled to under RA 660. The said SSS Resolution No.
56 states:
RESOLUTION NO. 56
WHEREAS, the retirement benefits of SSS employees are provided
for under Republic Acts 660 and 1616 as amended;.
WHEREAS, SSS employees who are qualified for compulsory
retirement at age 65 or for optional retirement at a lower age are
entitled to either the life annuity under R.A. 660, as amended, or the
gratuity under R.A. 1616, as amended;
WHEREAS, a retirement benefit to be effective must be a periodic
income as close as possible to the monthly income that would have
been due to the retiree during the remaining years of his life were
he still employed;
WHEREAS, the life annuity under R.A. 660, as amended, being closer
to the monthly income that was lost on account of old age than the
gratuity under R.A. 1616, as amended, would best serve the interest
of the retiree;
WHEREAS, it is the policy of the Social Security Commission to
promote and to protect the interest of all SSS employees, with a
view to providing for their well-being during both their working and
retirement years;

WHEREAS, the availment of life annuities built up by premiums paid

on behalf of SSS employees during their working years would mean
more savings to the SSS;
WHEREAS, it is a duty of the Social Security Commission to effect
savings in every possible way for economical and efficient
operations;
WHEREAS, it is the right of every SSS employee to choose freely and
voluntarily the benefit he is entitled to solely for his own benefit and
for the benefit of his family;
NOW, THEREFORE, BE IT RESOLVED, That all the SSS employees who
are simultaneously qualified for compulsory retirement at age 65 or
for optional retirement at a lower age be encouraged to avail for
themselves the life annuity under R.A. 660, as amended;
RESOLVED, FURTHER, That SSS employees who availed themselves
of the said life annuity, in appreciation and recognition of their long
and faithful service, be granted financial assistance equivalent to the
gratuity plus return of contributions under R.A. 1616, as amended,
less the five year guaranteed annuity under R.A. 660, as amended;
RESOLVED, FINALLY, That the Administrator be authorized to act on
all applications for retirement submitted by SSS employees and
subject to availability of funds, pay the corresponding benefits in
addition to the money value of all accumulated leaves. (emphasis
supplied)
Long after the promulgation of SSS Resolution No. 56, respondent
Commission on Audit (COA) issued a ruling, captioned as "3rd
4
Indorsement" dated July 10, 1989, disallowing in audit "all such
claims for financial assistance under SSS Resolution No. 56", for the
reason that:
. . . the scheme of financial assistance authorized by the SSS is
similar to those separate retirement plan or incentive/separation
pay plans adopted by other government corporate agencies which
results in the increase of benefits beyond what is allowed under
existing retirement laws. In this regard, attention . . . is invited to the
view expressed by the Secretary of Budget and Management dated
February 17, 1988 to the COA General Counsel against the
proliferation of retirement plans which, in COA Decision No. 591
dated August 31, 1988, was concurred in by this Commission. . . .
Accordingly, all such claims for financial assistance under SSS
Resolution No. 56 dated January 21, 1971 should be disallowed in
audit. (emphasis supplied)
Despite the aforequoted ruling of respondent COA, then SSS
5
Administrator Jose L. Cuisia, Jr. nevertheless wrote on February 12,
1990 then Executive Secretary Catalino Macaraig, Jr., seeking
"presidential authority for SSS to continue implementing its
Resolution No. 56 dated January 21, 1971 granting financial
assistance to its qualified retiring employees".
6

However, in a letter-reply dated May 28, 1990, then Executive

Secretary Macaraig advised Administrator Cuisia that the Office of
the President "is not inclined to favorably act on the herein request,
let alone over-rule the disallowance by COA" of such claims,

because, aside from the fact that decisions, order or actions of the
COA in the exercise of its audit functions are appealable to the
7
Supreme Court pursuant to Sec. 50 of PD 1445, the benefits under
said Res. 56, though referred to as "financial assistance", constituted
additional retirement benefits, and the scheme partook of the
nature of a supplementary pension/retirement plan proscribed by
law.
The law referred to above is RA 4968 (The Teves Retirement Law),
which took effect June 17, 1967 and amended CA 186 (otherwise
known as the Government Service Insurance Act, or the GSIS
Charter), making Sec. 28 (b) of the latter act read as follows:
(b) Hereafter, no insurance or retirement plan for officers or
employees shall be created by employer. All supplementary
retirement or pension plans heretofore in force in any government
office. agency or instrumentality or corporation owned or controlled
by the government, are hereby declared in operative or abolished;
Provided, That the rights of those who are already eligible to retire
there under shall not be affected." (emphasis supplied)
On January 12, 1993, herein petitioners filed with respondent COA
8
their "letter-appeal/protest" seeking reconsideration of COA's
ruling of July 10, 1989 disallowing claims for financial assistance
under Res. 56.
On November 15, 1993, petitioner Conte sought payment from SSS
of the benefits under Res. 56. On December 9, 1993, SSS
9
Administrator Renato C. Valencia denied the request in consonance
with the previous disallowance by respondent COA, but assured
petitioner that should the COA change its position, the SSS will
resume the grant of benefits under said Res. 56.
On March 15, 1994, respondent COA rendered its COA Decision No.
94-126 denying petitioners' request for reconsideration.
Thus this petition for certiorari under Rule 65 of the Rules of Court.
The Issues
10

The issues submitted by petitioners may be simplified and

restated thus: Did public respondent abuse its discretion when it
disallowed in audit petitioners' claims for benefits under SSS Res.
562?
Petitioners argue that the financial assistance under Res. 56 is not a
retirement plan prohibited by RA 4968, and that Res. 56 provides
benefits different from and "aside from" what a retiring SSS
employee would be entitled to under RA 660. Petitioners contend
that it "is a social amelioration and economic upliftment measure
undertaken not only for the benefit of the SSS but more so for the
welfare of its qualified retiring employees." As such, it "should be
interpreted in a manner that would give the . . . most advantage to
the recipient the retiring employees whose dedicated, loyal,
lengthy and faithful service to the agency of government is
recognized and amply rewarded the rationale for the financial
assistance plan." Petitioners reiterate the argument in their letter
dated January 12, 1993 to COA that:

Motivation can be in the form of financial assistance, during their

stay in the service or upon retirement, as in the SSS Financial
Assistance Plan. This is so, because Government has to have some
attractive remuneration programs to encourage well-qualified
personnel to pursue a career in the government service, rather than
in the private sector or in foreign countries . . .
A more developmental view of the financial institutions' grant of
certain forms of financial assistance to its personnel, we believe,
would enable government administrators to see these financial
forms of remuneration as contributory to the national
developmental efforts for effective and efficient administration of
11
the personnel programs in different institutions.

As a result of the study and upon the recommendation of its

Actuary, the SSS Management recommended to the Social Security
Commission that retiring employees who are qualified to claim under
either RA 660 or 1616 should be "encouraged" to avail for
themselves the life annuity under RA 660, as amended, with the SSS
providing a "financial assistance" equivalent to the difference
between the benefit under RA 1616 (gratuity plus return of
contribution) and the 5-year lump sum pension under RA 660.
The Social Security Commission, as the policy-making body of the
SSS approved the recommendation in line with its mandate to
"insure the efficient, honest and economical administration of the
provisions and purposes of this Act. (Section 3 (c) of the Social
Security Law).

The Court's Ruling

Petitioners' contentions are not supported by law. We hold that Res.
56 constitutes a supplementary retirement plan.
A cursory examination of the preambular clauses and provisions of
Res. 56 provides a number of clear indications that its financial
assistance plan constitutes a supplemental retirement/pension
benefits plan. In particular, the fifth preambular clause which
provides that "it is the policy of the Social Security Commission to
promote and to protect the interest of all SSS employees, with a
view to providing for their well-being during both their working and
retirement years", and the wording of the resolution itself which
states "Resolved, further, that SSS employees who availed
themselves of the said life annuity (under RA 660), in appreciation
and recognition of their long and faithful service, be granted
financial assistance . . . can only be interpreted to mean that the
benefit being granted is none other than a kind of amelioration to
enable the retiring employee to enjoy (or survive) his retirement
years and a reward for his loyalty and service. Moreover, it is plain
to see that the grant of said financial assistance is inextricably linked
with and inseparable from the approval of retirement benefits under
RA 660, i.e., that availment of said financial assistance under Res. 56
may not be done independently of but only in conjunction with the
availment of retirement benefits under RA 660, and that the former
is in augmentation or supplementation of the latter benefits.
Likewise, then SSS Administrator Cuisia's historical overview of the
origins and purpose of Res. 56 is very instructive and sheds much
12
light on the controversy:
Resolution No. 56, . . ., applies where a retiring SSS employee is
qualified to claim under either RA 660 (pension benefit, that is, 5
year lump sum pension and after 5 years, lifetime pension), or RA
1616 (gratuity benefit plus return of contribution), at his option. The
benefits under RA 660 are entirely payable by GSIS while those under
RA 1616 are entirely shouldered by SSS except the return of
contribution by GSIS.
Resolution No. 56 came about upon observation that qualified SSS
employees have invariably opted to retire under RA 1616 instead of
RA 660 because the total benefit under the former is much greater
than the 5-year lump sum under the latter. As a consequence, the
SSS usually ended up virtually paying the entire retirement benefit,
instead of GSIS which is the main insurance carrier for government
employees. Hence, the situation has become so expensive for SSS
that a study of the problem became inevitable.

Necessarily, the situation was reversed with qualified SSS employees

opting to retire under RA No. 660 or RA 1146 instead of RA 1616,
resulting in substantial savings for the SSS despite its having to pay
"financial assistance".
Until Resolution No. 56 was questioned by COA. (emphasis part of
original text; emphasis ours).
Although such financial assistance package may have been instituted
for noble, altruistic purposes as well as from self-interest and a
desire to cut costs on the part of the SSS, nevertheless, it is beyond
any dispute that such package effectively constitutes a
supplementary retirement plan. The fact that it was designed to
equalize the benefits receivable from RA 1616 with those payable
under RA 660 and make the latter program more attractive, merely
confirms the foregoing finding.
That the Res. 56 package is labelled "financial assistance" does not
change its essential nature. Retirement benefits are, after all, a form
of reward for an employee's loyalty and service to the employer,
and are intended to help the employee enjoy the remaining years of
his life, lessening the burden of worrying about his financial support
13
or upkeep. On the other hand, a pension partakes of the nature of
"retained wages" of the retiree for a dual purpose: to entice
competent people to enter the government service, and to permit
them to retire from the service with relative security, not only for
those who have retained their vigor, but more so for those who
14
have been incapacitated by illness or accident.
Is SSS Resolution No. 56 then within the ambit of and thus
proscribed by Sec. 28 (b) of CA 186 as amended by RA 4968?
We answer in the affirmative. Said Sec. 28 (b) as amended by RA
4968 in no uncertain terms bars the creation of any insurance or
retirement plan other than the GSIS for government officers
and employees, in order to prevent the undue and inequitous
proliferation of such plans. It is beyond cavil that Res. 56
contravenes the said provision of law and is therefore invalid, void
and of no effect. No ignore this and rule otherwise would be
tantamount to permitting every other government office or agency
to put up its own supplementary retirement benefit plan under the
guise of such "financial assistance".
We are not unmindful of the laudable purposes for promulgating
Res. 56, and the positive results it must have had, not only in
reducing costs and expenses on the part of the SSS in connection

with the pay-out of retirement benefits and gratuities, but also in

improving the quality of life for scores of retirees. But it is simply
beyond dispute that the SSS had no authority to maintain and
implement such retirement plan, particularly in the face of the
statutory prohibition. The SSS cannot, in the guise of rule-making,
legislate or amend laws or worse, render them nugatory.
It is doctrinal that in case of conflict between a statute and an
15
administrative order, the former must prevail. A rule or regulation
must conform to and be consistent with the provisions of the
16
enabling statute in order for such rule or regulation to be valid.
The rule-making power of a public administrative body is a
delegated legislative power, which it may not use either to abridge
the authority given it by the Congress or the Constitution or to
enlarge its power beyond the scope intended. Constitutional and
statutory provisions control with respect to what rules and
regulations may be promulgated by such a body, as well as with
respect to what fields are subject to regulation by it. It may not
make rules and regulations which are inconsistent with the
provisions of the Constitution or a statute, particularly the statute it
is administering or which created it, or which are in derogation of, or
17
defeat, the purpose of a statute. Though well-settled is the rule
that retirement laws are liberally interpreted in favor of the retiree,
18
nevertheless, there is really nothing to interpret in either RA 4968
or Res. 56, and correspondingly, the absence of any doubt as to the
ultra-vires nature and illegality of the disputed resolution constrains
us to rule against petitioners.
As a necessary consequence of the invalidity of Res. 56, we can
hardly impute abuse of discretion of any sort to respondent
Commission for denying petitioners' request for reconsideration of
the 3rd Indorsement of July 10, 1989. On the contrary, we hold that
public respondent in its assailed Decision acted with circumspection
in denying petitioners claim. It reasoned thus:
After a careful evaluation of the facts herein obtaining, this
Commission finds the instant request to be devoid of merit. It bears
stress that the financial assistance contemplated under SSS
Resolution No. 56 is granted to SSS employees who opt to retire
under R.A. No. 660. In fact, by the aggrieved parties' own admission
(page 2 of the request for reconsideration dated January 12, 1993),
it is a financial assistance granted by the SSS management to its
employees. in addition to the retirement benefits under Republic Act.
No. 660." (underscoring supplied for emphasis) There is therefore no
question, that the said financial assistance partakes of the nature of
a retirement benefit that has the effect of modifying existing
retirement laws particularly R.A. No. 660.
Petitioners also asseverate that the scheme of financial assistance
under Res. 56 may be likened to the monetary benefits of
government officials and employees who are paid, over and above
their salaries and allowances as provided by statute, an additional
honorarium in varying amounts. We find this comparison baseless
19
and misplaced. As clarified by the Solicitor General:
Petitioners' comparison of SSS Resolution No. 56 with the
"honoraria" given to government officials and employees of the
"National Prosecution Service of the Department of Justice", Office
of the Government Corporate Counsel and even in the "Office of the
Solicitor General" is devoid of any basis. The monetary benefits or
"honoraria" given to these officials or employees are categorized as
travelling and/or representation expenses which are incurred by

them in the course of handling cases, attending court/administrative

hearings, or performing other field work. These monetary benefits
are given upon rendition of service while the "financial benefits"
under SSS Resolution No. 56 are given upon retirement from service.
In a last-ditch attempt to convince this Court that their position is
tenable, petitioners invoke equity. They "believe that they are
deserving of justice and equity in their quest for financial assistance
under SSS Resolution No. 56, not so much because the SSS is one of
the very few stable agencies of government where no doubt this
recognition and reputation is earned . . . but more so due to the
miserable scale of compensation granted to employees in various
20
agencies to include those obtaining in the SSS."
We must admit we sympathize with petitioners in their financial
predicament as a result of their misplaced decision to avail of
retirement benefits under RA 660, with the false expectation that
"financial assistance" under the disputed Res. 56 will also
materialize. Nevertheless, this Court has always held that equity,
which has been aptly described as "justice outside legality," is
applied only in the absence of, and never against, statutory law or
21
judicial rules of procedure. In this case, equity cannot be applied
to give validity and effect to Res. 56, which directly contravenes the
clear mandate of the provisions of RA 4968.
Likewise, we cannot but be aware that the clear imbalance between
the benefits available under RA 660 and those under RA 1616 has
created an unfair situation for it has shifted the burden of paying
such benefits from the GSIS (the main insurance carrier of
government employees) to the SSS. Without the corrective effects of
Res. 56, all retiring SSS employees without exception will be
impelled to avail of benefits under RA 1616. The cumulative effect of
such availments on the financial standing and stability of the SSS is
better left to actuarians. But the solution or remedy for such
situation can be provided only by Congress. Judicial hands cannot,
on the pretext of showing concern for the welfare of government
employees, bestow equity contrary to the clear provisions of law.
Nevertheless, insofar as herein petitioners are concerned, this Court
cannot just sit back and watch as these two erstwhile government
employees, who after spending the best parts of their lives in public
service have retired hoping to enjoy their remaining years, face a
financially dismal if not distressed future, deprived of what should
have been due them by way of additional retirement benefits, on
account of a bureaucratic boo-boo improvidently hatched by their
higher-ups. It is clear to our mind that petitioners applied for
benefits under RA 660 only because of the incentives offered by Res.
56, and that absent such incentives, they would have without fall
availed of RA 1616 instead. We likewise have no doubt that
petitioners are simply innocent bystanders in this whole
bureaucratic rule-making/financial scheme-making drama, and that
therefore, to the extent possible, petitioners ought not be penalized
or made to suffer as a result of the subsequently determined
invalidity of Res. 56, the promulgation and implementation of which
they had nothing to do with.
And here is where "equity" may properly be invoked: since "SSS
employees who are qualified for compulsory retirement at age 65 or
for optional retirement at a lower age are entitled to either the life
annuity under R.A. 660, as amended, or the gratuity under R.A. 1616,
22
as amended", it appears that petitioners, being qualified to avail of
benefits under RA 660, may also readily qualify under RA 1616. It

would therefore not be misplaced to enjoin the SSS to render all

possible assistance to petitioners for the prompt processing and
approval of their applications under RA 1616, and in the meantime,
unless barred by existing regulations, to advance to petitioners the
difference between the amounts due under RA 1616, and the
amounts they already obtained, if any, under RA 660.
WHEREFORE, the petition is hereby DISMISSED for lack of merit,
there having been no grave abuse of discretion on the part of
respondent Commission. The assailed Decision of public respondent
is AFFIRMED, and SSS Resolution No. 56 is hereby declared ILLEGAL,
VOID AND OF NO EFFECT. The SSS is hereby urged to assist
petitioners and facilitate their applications under RA 1616, and to
advance to them, unless barred by existing regulations, the
corresponding amounts representing the difference between the
two benefits programs. No costs.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo,
Puno, Vitug, Kapunan, Mendoza, Francisco, Hermosisima, Jr. and
Tores, Jr., JJ., concur.

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