Republic of the Philippines

SUPREME COURT
Manila

EN BANC

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. 1 Soon after the date last mentioned, or on
November 10, 1964 petitioner Emmanuel Pelaez, as Vice President of the Philippines
and as taxpayer, instituted the present special civil action, for a writ of prohibition with
preliminary injunction, against the Auditor General, to restrain him, as well as his
representatives and agents, from passing in audit any expenditure of public funds in
implementation of said executive orders and/or any disbursement by said municipalities.

Petitioner alleges that said executive orders are null and void, upon the ground that said
Section 68 has been impliedly repealed by Republic Act No. 2370 and constitutes an
undue delegation of legislative power. Respondent maintains the contrary view and
avers that the present action is premature and that not all proper parties referring to
the officials of the new political subdivisions in question have been impleaded.
Subsequently, the mayors 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.

Upon petition of a majority of the voters in the areas affected, a new barrio may
be created or the name of an existing one may be changed by the provincial
board of the province, upon recommendation of the council of the municipality or
municipalities in which the proposed barrio is stipulated. The recommendation of
the municipal council shall be embodied in a resolution approved by at least two-
thirds of the entire membership of the said council: Provided, however, That no
new barrio may be created if its population is less than five hundred persons.

Hence, since January 1, 1960, when Republic Act No. 2370 became effective, barrios
may "not be created or their boundaries altered nor their names changed" except by Act
of Congress or of the corresponding provincial board "upon petition of a majority of the
voters in the areas affected" and the "recommendation of the council of the municipality
or municipalities in which the proposed barrio is situated." Petitioner argues,
accordingly: "If the President, under this new law, cannot even create a barrio, can he
create a municipality which is composed of several barrios, since barrios are units of
municipalities?"

Respondent answers in the affirmative, upon the theory that a new municipality can be
created without creating new barrios, such as, by placing old barrios under the
jurisdiction of the new municipality. This theory overlooks, however, the main import of
the petitioner's argument, which is that the statutory denial of the presidential authority
to create a new barrio implies a negation of the bigger power to create municipalities,
each of which consists of 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.

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
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 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 must set 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 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 Section 1
of Act No. 1748,3 which provided that, "whenever in the judgment of the Governor-
General the public welfare requires, he may, by executive order," effect the changes
enumerated therein (as in said section 68), including the change of the seat of the
government "to such place ... as the public interest requires." The opening statement of
said Section 1 of Act No. 1748 which was not included in Section 68 of the Revised
Administrative Code governed the time at which, or the conditions under which, the
powers therein conferred could be exercised; whereas the last part of the first sentence
of said section referred exclusively to the place to which the seat of the government was
to be transferred.

At any rate, the conclusion would be the same, insofar as the case at bar is concerned,
even if we assumed that the phrase "as the public welfare may require," in said Section
68, qualifies all other clauses thereof. It is true that in Calalang vs. Williams (70 Phil.
726) and People vs. Rosenthal (68 Phil. 328), this Court had upheld "public welfare"
and "public interest," respectively, as sufficient standards for a valid delegation of the
authority to execute the law. But, the doctrine laid down in these cases as all judicial
pronouncements must be construed in relation to the specific facts and issues
involved therein, outside of which they do not constitute precedents and have no
binding effect.4 The law construed in the Calalang case conferred upon the Director of
Public Works, with the approval of the Secretary of Public Works and Communications,
the power to issue rules and regulations to promote safe transit upon national
roads and streets. Upon the other hand, the Rosenthal case referred to the authority of
the Insular Treasurer, under Act No. 2581, to issue and cancel certificates or permits
for the sale of speculative securities. Both cases involved grants
to administrative officers of powers related to the exercise of their administrative
functions, calling for the determination of questions of fact.
Such is not the nature of the powers dealt with in section 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 legislativequestion
"(Carolina-Virginia Coastal Highway vs. Coastal Turnpike Authority, 74 S.E. 2d. 310-
313, 315-318), or apolitical 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.

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 corresponding provincial board. 5

Upon the other hand if the President could create a municipality, he could, in effect,
remove any of its officials, by creating a new municipality and including therein
the barrio in which the official concerned resides, for his office would thereby become
vacant.6 Thus, by merely brandishing the power to create a new municipality (if he had
it), without actually creating it, he could compel local officials to submit to his dictation,
thereby, in effect, exercising over them the power of control denied to him by the
Constitution.

Then, also, the power of control of the President over executive departments, bureaus
or offices implies no 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 the exercise by him of an authority even greater
than that of control which he has over the executive departments, bureaus or offices. In
other words, Section 68 of the Revised Administrative Code does not merely fail to
comply with the constitutional mandate above quoted. Instead of giving the President
less power over local governments than that vested in him over the executive
departments, bureaus or offices, it reverses the 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 enactment. 7

There are only two (2) other points left for consideration, namely, respondent's claim (a)
that "not all the proper parties" referring to the officers of the newly created
municipalities "have been impleaded in this case," and (b) that "the present petition is
premature."

As regards the first point, suffice it to say that the records do not show, and the parties
do not claim, that the officers of any of said municipalities have been appointed or
elected and assumed office. At any rate, the Solicitor General, who has appeared on
behalf of respondent Auditor General, is the officer authorized by law "to act and
represent the Government of the Philippines, its offices and agents, in any official
investigation, proceeding or matter requiring the services of a lawyer" (Section 1661,
Revised Administrative Code), and, in connection with the creation of the
aforementioned municipalities, which involves a political, not proprietary, function, said
local officials, if any, are mere agents or representatives of the national government.
Their interest in the case at bar has, accordingly, been, in effect, duly represented. 8

With respect to the second point, respondent alleges that he has not as yet acted on
any of the executive 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.

Separate Opinions

BENGZON, J.P., J., concurring and dissenting:

A sign of progress in a developing nation is the rise of new municipalities. Fostering

their rapid growth has long been the aim pursued by all three branches of our
Government.

So it was that the Governor-General during the time of the Jones Law was given
authority by the Legislature (Act No. 1748) to act upon certain details with respect to
said local governments, such as fixing of boundaries, subdivisions and mergers. And
the Supreme Court, within the framework of the Jones Law, ruled in 1917 that the
execution or implementation of such details, did not entail abdication of legislative
power (Government vs. Municipality of Binagonan, 34 Phil. 518; Municipality of
Cardona vs. Municipality of Binagonan, 36 Phil. 547). Subsequently, Act No. 1748's
aforesaid statutory authorization was embodied in Section 68 of the Revised
Administrative Code. And Chief Executives since then up to the present continued to
avail of said provision, time and again invoking it to issue executive orders providing for
the creation of municipalities.
From September 4, 1964 to October 29, 1964 the President of the Philippines issued
executive orders to create thirty-three municipalities pursuant to Section 68 of the
Revised Administrative Code. Public funds thereby stood to be disbursed in
implementation of said executive orders.

Suing as private citizen and taxpayer, Vice President Emmanuel Pelaez filed in this
Court a petition for prohibition with preliminary injunction against the Auditor General. It
seeks to restrain the respondent or any person acting in his behalf, from passing in
audit any expenditure of public funds in implementation of the executive orders
aforementioned.

Petitioner contends that the President has no power to create a municipality by

executive order. It is argued that Section 68 of the Revised Administrative Code of 1917,
so far as it purports to grant any such power, is invalid or, at the least, already repealed,
in light of the Philippine Constitution and Republic Act 2370 (The Barrio Charter).

Section 68 is again reproduced hereunder for convenience:

SEC. 68. General authority of [Governor-General) President of the Philippines to

fix boundaries and make new subdivisions. The [Governor-General] President
of the Philippines may by executive order define the boundary, or boundaries, of
any province, subprovince, municipality, [township] municipal district, or other
political subdivision, and increase or diminish the territory comprised therein, may
divide any province into one or more subprovinces, separate any political division
other than a province, into such portions as may be required, merge any of such
subdivisions or portions with another, name any new subdivision so created, and
may change the seat of government within any subdivision to such place therein
as the public welfare may require: Provided, That the authorization of the
[Philippine Legislature] Congress of the Philippines shall first be obtained
whenever the boundary of any province or subprovince is to be defined or any
province is to be divided into one or more subprovinces. When action by the
[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
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.

From such working I believe that power to create a municipality is included: to "separate
any political division other than a province, into such portions as may be required,
merge any such subdivisions or portions with another, name any new subdivision so
created." The issue, however, is whether the legislature can validly delegate to the
Executive such power.

The power to create a municipality is legislative in character. American authorities have

therefore favored the view that it cannot be delegated; that what is delegable is not the
power to create municipalities but only the power to determine the existence of facts
under which creation of a municipality will result (37 Am. Jur. 628).

The test is said to lie in whether the statute allows any discretion on the delegate as to
whether the municipal corporation should be created. If so, there is an attempted
delegation of legislative power and the statute is invalid (Ibid.). Now Section 68 no doubt
gives the President such discretion, since it says that the President "may by executive
order" exercise the powers therein granted. Furthermore, Section 5 of the same Code
states:

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

powers of all executive or administrative officers and bodies is based upon
discretion, and when such officer or body is given authority to do any act but not
required to do such act, the doing of the same shall be dependent on a sound
discretion to be exercised for the good of the service and benefit of the public,
whether so expressed in the statute giving the authority or not.

Under the prevailing rule in the United States and Section 68 is of American origin
the provision in question would be an invalid attempt to delegate purely legislative
powers, contrary to the principle of separation of powers.

It is very pertinent that Section 68 should be considered with the stream of history in
mind. A proper knowledge of the past is the only adequate background for the present.
Section 68 was adopted half a century ago. Political change, two world wars, the
recognition of our independence and rightful place in the family of nations, have since
taken place. In 1917 the Philippines had for its Organic Act the Jones Law. And under
the setup ordained therein no strict separation of powers was adhered to. Consequently,
Section 68 was not constitutionally objectionable at the time of its enactment.

The advent of the Philippine Constitution in 1935 however altered the situation. For not
only was separation of powers strictly ordained, except only in specific instances therein
provided, but the power of the Chief Executive over local governments suffered an
explicit reduction.

Formerly, Section 21 of the Jones Law provided that the Governor-General "shall have
general supervision and control of all the departments and bureaus of the government
in the Philippine Islands." Now Section 10 (1), Article VII of the Philippine Constitution
provides: "The President shall have control of all the executive departments, bureaus, or
offices, exercise general supervision over all local governments as may be provided by
law, and take care that the laws be faithfully executed.
In short, the power of control over local governments had now been taken away from
the Chief Executive. Again, to fully understand the significance of this provision, one
must trace its development and growth.

As early as April 7, 1900 President McKinley of the United States, in his Instructions to
the Second Philippine Commission, laid down the policy that our municipal governments
should be "subject to the least degree of supervision and control" on the part of the
national government. Said supervision and control was to be confined within the
"narrowest limits" or so much only as "may be necessary to secure and enforce faithful
and efficient administration by local officers." And the national government "shall have
no direct administration except of matters of purely general concern." (See Hebron v.
Reyes, L-9158, July 28, 1958.)

All this had one aim, to enable the Filipinos to acquire experience in the art of self-
government, with the end in view of later allowing them to assume complete
management and control of the administration of their local affairs. Such aim is the
policy now embodied in Section 10 (1), Article VII of the Constitution (Rodriguez v.
Montinola, 50 O.G. 4820).

It is the evident decree of the Constitution, therefore, that the President shall have no
power of control over local governments. Accordingly, Congress cannot by law grant
him such power (Hebron v. Reyes, supra). And any such power formerly granted under
the Jones Law thereby became unavoidably inconsistent with the Philippine
Constitution.

It remains to examine the relation of the power to create and the power to control local
governments. Said relationship has already been passed upon by this Court in Hebron
v. Reyes, supra. In said case, it was ruled that the power to control is an incident of the
power to create or abolish municipalities. Respondent's view, therefore, that creating
municipalities and controlling their local governments are "two worlds apart," is
untenable. And since as stated, the power to control local governments can no longer
be conferred on or exercised by the President, it follows a fortiori that the power to
create them, all the more cannot be so conferred or exercised.

I am compelled to conclude, therefore, that Section 10 (1), Article VII of the Constitution
has repealed Section 68 of the Revised Administrative Code as far as the latter
empowers the President to create local governments. Repeal by the Constitution of
prior statutes inconsistent with it has already been sustained in De los Santos v.
MaIlare, 87 Phil. 289. And it was there held that such repeal differs from a declaration of
unconstitutionality of a posterior legislation, so much so that only a majority vote of the
Court is needed to sustain a finding of repeal.

Since the Constitution repealed Section 68 as far back as 1935, it is academic to ask
whether Republic Act 2370 likewise has provisions in conflict with Section 68 so as to
repeal it. Suffice it to state, at any rate, that statutory prohibition on the President from
creating a barrio does not, in my opinion, warrant the inference of statutory prohibition
for creating a municipality. For although municipalities consist of barrios, there is nothing
in the statute that would preclude creation of new municipalities out of pre-existing
barrios.

It is not contrary to the logic of local autonomy to be able to create larger political units
and unable to create smaller ones. For as long ago observed in President McKinley's
Instructions to the Second Philippine Commission, greater autonomy is to be imparted
to the smaller of the two political units. The smaller the unit of local government, the
lesser is the need for the national government's intervention in its political affairs.
Furthermore, for practical reasons, local autonomy cannot be given from the top
downwards. The national government, in such a case, could still exercise power over
the supposedly autonomous unit, e.g., municipalities, by exercising it over the smaller
units that comprise them, e.g., the barrios. A realistic program of decentralization
therefore calls for autonomy from the bottom upwards, so that it is not surprising for
Congress to deny the national government some power over barrios without denying it
over municipalities. For this reason, I disagree with the majority view that because the
President could not create a barrio under Republic Act 2370, a fortiori he cannot create
a municipality.

It is my view, therefore, that the Constitution, and not Republic Act 2370, repealed
Section 68 of the Revised Administrative Code's provision giving the President authority
to create local governments. And for this reason I agree with the ruling in the majority
opinion that the executive orders in question are null and void.

In thus ruling, the Court is but sustaining the fulfillment of our historic desire to be free
and independent under a republican form of government, and exercising a function
derived from the very sovereignty that it upholds. Executive orders declared null and
void.

Makalintal and Regala, JJ., concur.

Footnotes
1

Executive Municipality Province Date Annex

Order No. Promulgated

93 Nilo Zamboanga Sept. 4, 1964 A (Original

 del Sur Petition)

94 Midsalip " " " " " "B "

95 Pitogo " " " " " "C "

96 Maruing " " " " " "D "

97 Naga " " " " " "E "

99 Sebaste Antique " 26 "F "

100 Molugan Misamis " " "G "

Oriental

101 Malixi Surigao del " 28 "H "

Sur

102 Roxas Davao " " "I "

103 Magsaysay " " " "J "

104 Sta. Maria " " " "K "

105 Badiangan Iloilo " " "L "

106 Mina " Oct. 1, "M "

107 Andong Lanao del Sur " " "N "

108 San Alonto " " " " " "O "

109 Maguing " " " " " "P "

110 Dianaton " " " " " "Q "

111 Elpidio Mt. Province " " "R "

Quirino

112 Bayog Zamboanga " " "S "

del Sur

117 Gloria Oriental " " "GG (Attached

Mindoro hereto)

113 Maasin Cotabato " " "T

114 Siayan Zamboanga " " "LC

del Norte

115 Roxas " " " " " "V

 116P Panganuran " " " " " "W

118 Kalilangan Bukidnon " " "X

119 Lantapan " " " "Y

120 Libertad Zamboanga " " "Z

del Sur

121 General " " " " " "AA

Aguinaldo

124 Rizal Surigao del " 3 "BB

Norte

126 Tigno Surigao del " 23 "CC

Sur

127 Tampakan Cotabato " 26 "DD

128 Maco Davao " 29 "EE

129 New Corella " " " "FF

1A
Except to local governments, to which legislative powers, with respect to
matters of local concern, may be delegated.
2
Calalang vs. Williams, 70 Phil. 726; Pangasinan Transp Co. vs. Public Service
Commission, 70 Phil. 221; Cruz vs. Youngberg, 56 Phil. 234; Alegre vs. Collector
of Customs, 53 Phil. 394; Mulford vs. Smith, 307 U.S. 38.
2a
People vs. Lim Ho, L-12091-2, January 28, 1960; People vs. Jolliffe, L-9553,
May 13, 1959; People vs. Vera, 65 Phil. 56; U.S. vs. Ang Tang Ho, 43 Phil. 1;
Compania General de Tabacos vs. Board of Public Utility, 34 Phil. 136; Mutual
Film Co. vs. Industrial Commission, 236 U. S. 247, 59 L. Ed. 561; Mutual Film
Corp. vs. Industrial Commission, 236 U.S. 230, 59 L. Ed. 552; Pamana Refining
Co. vs. Ryan, 293 U.S. 388, 79 L. Ed. 446; A.L.A. Schechter Poultry Corp. vs.
U.S., 295 U.S. 495, 79 L Ed. 1570; U.S. vs. Rock Royal Coop., 307 U.S. 533, 83
L. Ed. 1446; Bowles vs. Willingham, 321 U.S. 503, 88 L. Ed. 892; Araneta vs.
Gatmaitan, L-8895, April 30, 1957; Cervantes vs. Auditor General, L-4043, May
26, 1952; Phil. Association of Colleges vs. Sec. of Education, 51 Off. Gaz. 6230;
People vs. Arnault, 48 Off. Gaz. 4805; Antamok Gold Fields vs. CIR, 68 Phil. 340;
U.S. vs. Barrias, 11 Phil. 327; Yakus vs. White, 321 U.S. 414; Ammann vs.
Mailonce, 332 U.S. 245.
2b
Vigan Electric Light Company, Inc. vs. The Public Service Commission, L-
19850, January 30, 1964.
3
Whenever in the judgment of the Governor-General the public welfare requires,
he may, by executive order, enlarge, contract, or otherwise change the boundary
of any province, subprovince, municipality, or township or other political
subdivision, or separate any such subdivision into such portions as may be
required as aforesaid, merge any of such subdivisions or portions with another,
divide any province into one or more subprovinces as may be required as
aforesaid, any new subdivision so created, change the seat of government within
any subdivision, existing or created hereunder, to such place therein as the
public interests require, and shall fix in such executive order the date when the
change, merger, separation, or other action shall take effect. Whenever such
action as aforesaid creates a new political subdivision the Governor-General
shall appoint such officers for the new subdivision with such powers and duties
as may be required by the existing provisions of law applicable to the case and
fix their salaries; such appointees shall hold office until their successors are
elected or appointed and qualified. Successors to the elective offices shall be
elected at the next general election following such appointment. Such equitable
distribution of the funds of changed subdivisions between the subdivisions
affected shall be as is recommended by the Insular Auditor and approved by the
Governor-General.
4
McGirr vs. Hamilton, 30 Phil. 563; Hebron vs. Reyes, L-9124. July 28, 1958; U.
S. vs. More, 3 Cranch 159, 172; U. S vs. Sanges, 144 U.S. 310, 319; Cross vs.
Burke, 146 U.S. 82; Louisville Trust Co. vs. Knott, 191 U.S. 225. See also, 15
C.J. 929-940; 21 C.J.S. 297, 299; 14 Am. Jur. 345.
5
Hebron vs. Reyes, L-9124, July 28, 1958; Mondano vs. Silvosa, 51 Off. Gaz.
2884; Rodriguez vs. Montinola, 50 Off. Gaz. 4820; Querubin vs. Castro, L-9779,
July 31, 1958.
6
Pursuant to Section 2179 of the Revised Administrative Code:

"When a part of a barrio is detached from a municipality to form a new

municipality or to be added to an existing municipality, any officer of the
old municipality living in the detached territory may continue to hold his
office and exert the functions thereof for the remainder of his term; but if
he is resident of a barrio the whole of which is detached, his office shall be
deemed to be vacated."
7
De los Santos vs. Mallare, 87 Phil. 289, 298-299.
8
Mangubat vs. Osmea, Jr., L-12837, April 20, 1959; City of Cebu vs. Judge
Piccio, L-13012 & L-14876, December 31, 1960.