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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 Governor-General 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 andpromulgate 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, theLegislature itself has not in any manner specified or defined any basis for the order, but has left

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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 Governor-General? 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 theadministration 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 involvingthe exercise of a legislative discretion that could not be delegated, and without which the act

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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.

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.

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.

Construing it in 136 Wis., 526; 128 A. S. R., 1100,1the 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 itcan make a law with provisions that it shall go into effect or be suspended in its operations upon

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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. Th is 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.

The Executive order2provides:

(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 Governor-General 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 awide 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 ofsuch matters is an argument for, or against, its constitutionality.

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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 withgovernment 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.

DIGESTED

On 30July 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 to issue the

necessary Rules and Regulations in regulating the distribution of such products. Pursuant to this

Act, On 01 August 1919, the GG issued EO 53 which was published on 20 August 1919. The

said EO fixed the price at which rice should be sold. On the other hand, Ang Tang Ho, a rice

dealer, voluntarily, criminally and illegally sold a ganta of rice to Pedro Trinidad at the price of

eighty centavos. The said amount was wayhigherthan that prescribed by the EO. The sale was

done on the 6th

of August 1919. On 08 August 1919, he was charged in violation of the said EO.

He was found guilty as charged and was sentenced to 5 months imprisonment plus a P500.00fine. 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: Fist 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 beconvictedof a violation of a law or of anorderissued pursuant to the law when

both the law and the order fail to set up an ascertainable standard of guilt. The said Act, as to

the judgment of the SC, 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 infuture, if necessary, upon

the ascertainment of any prescribed fact or event.

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:

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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 inter-provincial 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.

(SGD.) FERDINAND E. MARCOS

President

Republic of the Philippines

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. 1The 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 presumed validity.2

The petitioner appealed the decision to the Intermediate Appellate Court, *3

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 No. 6 of the 1973 Constitution.4

While also involving the same executive order, the case ofPesigan v. Angeles5

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 warranted, subject only to review by the highest tribunal.6We have jurisdiction under

the Constitution to "review, revise, reverse, modify or affirm on appeal orcertiorari, as the law or

rules of court may provide," final judgments and orders of lower courts in, among others, all

cases involving the constitutionality of certain measures.7

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 hammer fall,

and heavily,"8

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 jurist,9

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 hisjudgment 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 moreclearly was submitted in the Constitutional Convention of 1934, but it was rejected by Delegate

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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 open-ended, 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 nuisanceper 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 hasfled. 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 lexand 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:

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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 theslaughterof the

carabaos but on theirmovement, 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 saysexecutive 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 necessarily judicial only.20

In the exceptional

cases accepted, however. there is a justification for the omission of the right to a previous

hearing, to wit, the immediacyof the problem sought to be corrected and the urgencyof 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 held in Pesigan v.

Angeles,21

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 Commissionmay see fit, in the case of carabeef, and

to deserving farmers through dispersal as the Director of Animal Industrymay 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, andin 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 ExecutiveOrder No. 626-A unconstitutional.

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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 afaitaccomplidespite 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.

DIGESTED

RESTITUTO YNOT -petitioner; an owner of carabaos

Station Commander, Integrated National Police, Barotac Nuevo, Iloilo & the Regional Director,

Bureau of Animal Industry, Region IV- respondents

Type of petition filed: PETITION FOR CERTIORARI

ISSUE:

Whether Executive Order No. 626-A is constitutional or not.

FACTS:

Petitioner was charged of violation of EO 626 when he 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.

Petitioner raised the issue of EOs constituitonality and filed case in the lower court. However,

the court sustained the 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 raised by the petitioner. Therefore, petitioner appealed

the decsion to IAC with the following contentions:

1. EO is unconstitutional as confiscation is outright

2. Penalty is invalid as it is imposed without the owner's right to be heard before a competent

and impartial court.

3. Measure should have not been presumed

4. Raises a challenge to the improper exercise of the legislative power by the former President.

HELD:

Petiton is GRANTED with the following justifications:

1. Right of the petitioner to question for constitutionality is valid as theres no exigency showing

to justify the exercise of this extraordinary power of the President

2. Properties involved were not even inimical per se as to require their instant destrcution

3. Case involved roving commission and invalid delegation of powers and invalid exercise of

police power

4. Due process is violated because the owner is denied the right to be heard in his defense and

was immedeiately condemned and punish

G.R. No. L-23825 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 enumerated

in the margin.1Soon 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 ispremature and that not all proper parties referring to the officials of the new political

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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 asamici curiae.

The third paragraph of Section 3 of Republic Act No. 2370, reads:

Barrios shall not be created or their boundaries altered nor their names changed except under

the provisions of this Act or by Act of Congress.

Pursuant to the first two (2) paragraphs of the same Section 3:

All barrios existing at the time of the passage of this Act shall come under the provisions hereof.

Upon petition of a majority of the voters in the areas affected, a new barrio may be created or

the name of an existing one may be changed by the provincial board of the province, upon

recommendation of the council of the municipality or municipalities in which the proposed barrio

is stipulated. The recommendation of the municipal council shall be embodied in a resolution

approved by at least two-thirds of the entire membership of the said council: Provided, however,

That no new barrio may be created if its population is less than five hundred persons.

Hence, since January 1, 1960, when Republic Act No. 2370 became effective, barrios may "not

be created or their boundaries altered nor their names changed" except by Act of Congress or ofthe 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 ofCongress to the contrary, and no such manifestation, subsequent to the passage of Republic Act

No. 2379, has been brought to our attention.

Moreover, section 68 of the 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 several officers

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

Upon the changing of the limits of political divisions in pursuance of the foregoing authority, an

equitable distribution of the funds and obligations of the divisions thereby affected shall be made

in such manner as may be recommended by the (Insular Auditor) Auditor General and approved

by the (Governor-General) President of the Philippines.

Respondent alleges that the power of the President to create municipalities under this section

does not amount to an undue delegation of legislative power, relying upon Municipality of

Cardona vs. Municipality of 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 existingmunicipality (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

effectthe 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 exclusivelythe exercise oflegislative power" (Udall vs. Severn, May 29, 1938, 79 P. 2d 347-

349). As the Supreme Court of Washington has put it (Territory ex rel. Kelly vs. Stewart,

February 13, 1890, 23 Pac. 405, 409), "municipal corporations are purely the creatures of

statutes."

Although1a

Congress may delegate to another branch of the Government the power to fill in the

details in the execution, enforcement or administration of a law, it is essential, to forestall a

violation of the principle of separation of powers, that said law: (a) be complete in itself it mustset forth therein the policy to be executed, carried out or implemented by the delegate

2 and

(b) fix a standard the limits of which are sufficiently determinate or determinable to which

the delegate must conform in the performance of his functions.2a

Indeed, without a statutory

declaration of policy, the delegate would in effect, make or formulate such policy, which is the

essence of every law; and, without the aforementioned standard, there would be no means to

determine, with reasonable certainty, whether the delegate has acted within or beyond the scope

of his authority.2b

Hence, he could thereby arrogate upon himself the power, not only to make the

law, but, also and this is worse to unmake it, by adopting measures inconsistent with the

end sought to be attained by the Act of Congress, thus nullifying the principle of separation of

powers and the system of checks and balances, and, consequently, undermining the very

foundation of our Republican system.

Section 68 of the Revised Administrative Code does not meet these well settled requirements fora valid delegation of the power to fix the details in the enforcement of a law. It does not

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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, notthe clauses preceding the one just quoted, but onlytheplace to which

the seat of the government may be transferred. This fact becomes more apparent when we

consider that said Section 68 was originally Section 1 of Act No. 1748, 3which provided that,

"whenever in the judgment of the Governor-General thepublic 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 suchplace ... as thepublic 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 exclusivelyto theplace to which the seat of the government was to be

transferred.

At any rate, the conclusion would be the same, insofar as the case at bar is concerned, even if

we assumed that the phrase "as the public welfare may require," in said Section 68, qualifies all

other clauses thereof. It is true that in Calalang vs. Williams (70 Phil. 726) and People vs.

Rosenthal(68 Phil. 328), this Court had upheld "public welfare" and "public interest,"

respectively, as sufficient standards for a valid delegation of the authority to execute the law.

But, the doctrine laid down in these cases as all judicial pronouncements must be

construed in relation to the specific facts and issues involved therein, outside of which they do

not constitute precedents and have no binding effect.4The 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 topromote safe transitupon

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 forthe

sale ofspeculative securities. Both cases involved grants to administrative officers of powers

related to the exercise of their administrative functions, calling for the determination of questions

offact.

Such is not the nature of the powers dealt with in section 68. As above indicated, the creation ofmunicipalities, 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 notone offact. it is "purely a legislativequestion "(Carolina-Virginia Coastal

Highway vs. Coastal Turnpike Authority, 74 S.E. 2d. 310-313, 315-318), or apoliticalquestion

(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 interestof 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 proposedvillages 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 ofSchechter 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

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better proof of the fact that the issuance of said executive orders entails the exercise of purely

legislative functions can hardly be given.

Again, Section 10 (1) of Article VII of our fundamental law ordains:

The President shall have control of all the executive departments, bureaus, or offices, exercise

general supervision over all local governments as may be provided by law, and take care that

the laws be faithfully executed.

The power of control under this provision implies the right of the President to interfere in the

exercise of such discretion as may be vested by law in the officers of the executive departments,

bureaus, or offices of the national government, as well as to act in lieu of such officers. This

power is deniedby 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

corresponding provincial board.5

Upon the other hand if the President could create a municipality, he could, in effect, remove any

of its officials, by creating a new municipality and including therein the barrio in which the official

concerned resides, for his office would thereby become vacant.6Thus, 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 morethan 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 theexercise by him of an authority even greater than that of control which he has over the executive

departments, bureaus or offices. In other words, Section 68 of the Revised Administrative Code

does not merely fail to comply with the constitutional mandate a